Unfavourable witness

Section 38 of the Evidence Act permits the party that has called a witness to question that witness as if they were cross-examining that witness.

Section 38 of the Evidence Act permits the party that has called a witness to question that witness as if they were cross-examining that witness.

A court that grants this leave generally needs to ensure that the leave granted is appropriately limited, and does not simply permit an open slather approach.

There is also a body of caselaw that speaks against the prosecution being able to take unfair forensic advantage in the manner in which the applications are made. In fairness to the prosecutor, the obligation to call all relevant witnesses can make the task of fairly presenting the evidence to the trier of fact almost impossible unless the prosecutor is granted leave, and the courts have permitted the crown some latitude in the manner and timing of these applications.

Fowler

R v Fowler [2000] NSWCCA 142

"What is now clear is that it is to be given its full effect, and that it is not to be confined to the situation where a party calling a witness is confronted unexpectedly by evidence that is "unfavourable" as that expression has been explained in Souleyman (1996) 40 NSWLR 712 (Gilbert Adam [1999] NSWCCA 189; 47 NSWLR 267); or, I would add, where such a party is confronted with the situation where the witness unexpectedly gives evidence that is inconsistent with prior statements or unexpectedly appears not to be making a genuine attempt to give evidence."