Evidence – Is He Lying, or are You?

The Issue

One of the ‘instances of uncertainty’ that was recently thrown up by practice concerned the cross-examination of witnesses by reference to the statements of other witnesses. It is now common for the evidence in chief of all witnesses to be reduced to writing. Conflicts of fact appear unambiguously, and in detail. There is an understandable temptation to show a witness the opposing statement and question on that basis.

Objection was taken to that course and the cross-examiner relied on the rule that it was permissible to ask whether, having read that statement, the witness adhered to his earlier testimony. This limited cross-examination was, rightly, said to be supported by judicial and academic opinion. But is it right? Should even that limited mode of cross-examination be permitted?

The Queen’s Case

The starting point is that, when cross-examining as to credit, one may not question a witness about the contents of a document of which he was not the author, or for the compilation of which he was not in some way responsible.

My examination of the cases makes me think there is no justification for the rule. It does, unhappily, have the support of two judges of the High Court, Wilson and Dawson JJ, who said in their joint judgment in Alister and Ors v R (1984) 154 CLR 404, 442-3:

‘In so far as the accused was not the author of the document, it was impermissible to ask questions about its contents without observing the rule in The Queen’s Case (1820) 129 E.R. 976: see Darby v Ouseley (1856) 156 E.R. 1093. … the proper course … was to ask the accused to look at the document without identifying it and to ask whether he adhered to his previous evidence: R v Orton [1922] VLR 469, 470-471; Birchall v Bullough [1896] 1 Q.B. 325, 326; R v Seham Yousry (1914) 11 Cr. App.R. 13.

The Queen’s Case has nothing to say about this question. Relevantly, it and Darby decide only that a witness must first be shown a document if he is to be asked about it. That requirement, insofar as the document is the witness’s own prior inconsistent statement, has been abolished in part by s 19 of the Evidence Act 1977. In fact, the origin of the rule appears to lie in the cases of Yousry and Orton.

Yousry

Yousry was a colourful case. Ms Yousry was an Egyptian woman who described herself as a princess. She had lived in Cairo for some years with a man, Connolly, who served in the Egyptian army. Connolly returned to England where he married. Yousry followed him and wrote a letter in which she accused Connolly of bigamy. She said they had married in Cairo. There was a suggestion that she hoped to obtain money by reason of the criminal libel with which she was charged.

Her evidence of their marriage was critical. The court described what happened (1914) 11 Cr. App. R. 13, 18:

‘… counsel for the prosecution held in his hand a piece of paper, and instead of saying, “Look at this piece of paper; do you adhere to your answer?” he described it as a report from the Cairo police as to her origin …’

The court deprecated this method of cross-examination. It said (1914) 11 Cr. App. R. 13, 18:

‘… that was a wholly wrong method to adopt. Counsel for the prosecution, holding documents in his hands which he cannot put in, has no right to suggest to the jury in any way what they are. The same procedure was adopted in regard to other documents described as being from the consular office in Cairo They could not be put in, and the jury might easily surmise that these documents were proofs that no such marriage as alleged existed.’

The court appears to have thought that the procedure by which a document is shown to a witness who is then asked whether she adhered to earlier testimony was proper, but it did not say so expressly. The judgment was concerned to criticise the cross-examiner indicating in any way what the document was, or what its contents were.

Orton

Nevertheless in Orton [1922] VLR 469, 470-1, Cussen J expressly ruled that an inadmissible document may be shown to a witness who could then be asked “Having looked at the document, do you still adhere to your previous statement?”

The judge gave no reasons for the ruling, but merely cited two cases as authority: Yousry, and North Australia Territory Company v Goldsborough, Mort and Company [1893] 2 Ch 381, 385, 386.

Orton may have remained in obscurity had not J G Starke noticed it and given it prominence in an article in which he set out ‘the rules as to cross-examination founded on documents …’ (see ‘Cross-Examination Based on Documents’ (1945) 19 ALJ 262) Rule 2(ii) was that:

‘The document may, even if inadmissible, be put in the witness’s hands and the witness asked if, having looked at it, he still adheres to his previous testimony (R. v Orton …). If the document is inadmissible, or is not to be tendered, this is the only proper course for cross-examining counsel.’

The article came to the attention of the Court of Criminal Appeal in R v Bedington (see: [1970] Qd R 353) which uncritically accepted its accuracy, but emphasised that the cross-examiner ‘may not suggest anything which might indicate the nature of the contents of the document.’ As noted earlier, Wilson and Dawson JJ were prepared to accept the rule as valid.

It should be pointed out that that practice also received the approval of Mr McHugh QC, (as he then was, and has become again) in a paper he presented to a NSW Bar Association seminar on 30 March 1983: see Michael H McHugh QC, ‘Cross-Examination on Documents’ (1985) 1 ABR 51.

The other two cases which have been mentioned as supporting the rule, Birchall v Bullough (see [1896] 1 QB 325) and Goldsborough, are not on point.

In Birchall the defendant’s own promissory note, which he had signed, was shown to him in cross-examination. It had not been stamped and was inadmissible only for that reason. The defendant was asked if, having seen the document, he remembered borrowing the money in dispute from the plaintiff. He said he did. That use of the document was upheld.

In Goldsborough a witness who had earlier given evidence in a liquidator’s examination was told what other witnesses had said when they were examined. His own evidence was not impugned but he was asked about the veracity of what the others had said. That practice was condemned.

Criticisms of the ‘Rule’

The rule was trenchantly criticised by Hunt CJ in CL in R v Hawes: (1994) 35 NSWLR 294 at 302-3. His Honour said that, although the practice had been very common in New South Wales, he had never been satisfied that it was valid, and that the authorities for it were ‘doubtful’. His objection was that ‘by whatever manner the document is produced and shown … the clearest implication in the question … is that the document asserts to the contrary …’. It therefore conflicted with the basic rule of evidence against proving the contents of documents other than by their production.

This is surely right. A cross-examiner may not in his questions identify an inadmissible document or expose its contents. The judges in Yousry recognised the rule but did not consider whether the form of the question they casually approved would infringe it.

There is another criticism of the practice: it is legally objectionable to ask a witness to answer a question ‘by reference to comment on the truthfulness of other witnesses …’: R v Foley [2000] 1 Qd R 290, 297. As the Court of Appeal pointed out in a joint judgment:

‘The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course is not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the judge or jury.’

The Full Supreme Court of South Australia expressed much the same opinion in R v Leak (see [1969] SASR 172, 173-4), saying:

‘A witness ought not to be asked whether another witness is telling lies or has invented something. … he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause … No attempt should be made by the cross-examiner to drive any witness … into saying that any other witness … is a liar.’

As Foley points out the question is objectionable because it seeks to elicit a non-expert opinion as to why the court should prefer the witness under cross-examination to the witness whose statement is produced. It is unfair because it forces a witness to justify his evidence and to criticise the other evidence. No matter how it is put, the question comes down to that which I chose for this article’s title. The tactic inevitably invites the witness to say, however circumspectly, that the documentary evidence with which he is confronted is false.

Conclusion

It is fundamental to the trial process that the court must itself determine which evidence to accept and to reject and, as part of the process, to conclude whether the rejected evidence is mistaken or dishonest. There is no reason why witnesses should be allowed into that role, and obvious reasons why they should not. It will be unhelpful because it will invite irrelevancies, and may inflame emotions.

The use of documents in the manner described is unsupported by reasoned authority and is objectionable on points of principle. That use is, I think, expressly forbidden by Foley. A witness should never by cross-examined about the contents of a document not of his making, even to the limited extent of asking whether, having read it, he declines to change his testimony.

The Hon Mr Justice R N Chesterman RFD

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