Re-examination – clarification and repairing credit

Re-examination can be a very useful tool in repairing damage done to a witness’s credit in cross-examination, and the permissible limits may be more than many advocates are aware of. A recent decision of the Queensland Court of Appeal in R v Koani [2016] QCA 289 (Koani’s case), which was unanimous on this point, discusses and confirms some of the principles in this area of law.

Importantly, in some circumstances, evidence of a prior consistent statement will be admissible in re-examination.

In Koani’s case, the appellant was originally convicted of the murder of his partner with a shotgun at close range in the context of a relationship breakdown. There were two grounds of appeal raised; only one of them is relevant to the considerations of permissible re-examination. During the trial, one of the witnesses, a Mr Fenton, gave evidence about what he heard the defendant say at the time of the shooting. He recalled hearing him say that he would rather “go back to jail or something, I’ll shoot you”. He saw him pick up and load the gun and say, “I’ll kill you. I didn’t – I’ll go to – doesn’t care – I’ll go back to jail”.  He then walked out of Mr Fenton’s sight and he heard the gun fire.

Mr Fenton was cross-examined about the evidence he gave under oath at the committal hearing. He accepted that at the committal he had only stated that the defendant said, “I don’t care if I go back to jail”, and that at committal he did not say that the appellant had said anything about shooting.

If Mr Fenton’s evidence had been left at this point, the jury would have had the impression that Mr Fenton had not made a reference to the defendant making threats to shoot or kill the deceased at any stage prior to the trial.

At the trial, the prosecutor then re-examined Mr Fenton (over the objection of defence counsel) by reading from Mr Fenton’s original statement provided to police and tendered at committal under s 110A of the Justices Act 1886. In that statement he had said that the appellant said, “I am going back to jail anyway. I don’t care, I will shoot you.”

The judgement of the then President provides a useful discussion on this area of law with respect to that ground of appeal and explains why the re-examination was permissible, when usually it would have been inadmissible as a prior consistent statement. The evidence of whether the defendant had actually said that he was going to shoot the deceased was important in the context of that case in order to prove the element of intent required for a murder charge.

As was argued by the respondent at the appeal noted at page 16, prior consistent statements of a witness are generally not admissible but a suggestion that a witness’s testimony was an afterthought is a recognised exception. It is not necessary to suggest that it was a recent invention. The effect of the cross-examination was that the evidence was such as to potentially create a false impression of Mr Fenton’s evidence in that the only account he had given was the account led out in cross-examination. It was therefore permissible to refer to Mr Fenton’s statement tendered at the committal hearing, which contained a reference to a threat to shoot. That was the true totality of the committal evidence.

The President agreed that the statement tendered at the committal was evidence as much as the cross-examination was. At paragraph 53, Her Honour made the following comments:

'It is well established that a party is entitled “in re-examination, to elicit from [the] witness facts which explain away or qualify facts which have been elicited … in cross-examination, and which are in themselves prejudicial to the party’s case or the witness’s credit, or from which prejudicial inferences could be drawn. As the New South Wales Court of Appeal noted in Wentworth v Rogers (no10) (1987) 8 NSWLR 398:

  • The rule marches in tandem with the related principle that when a witness has been cross-examined as to part of a written or oral statement made by him, examining counsel becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it.
  • The impugned re-examination and the evidence adduced was admissible as it explained fairly to the jury the history of Mr Fenton’s statements about a matter on which they may have had an inaccurate view if the re-examination was not permitted.'

This recent decision exemplifies the purpose of re-examination to allow witnesses an opportunity to explain or clarify any matters raised during cross-examination. It serves as a timely reminder to advocates to be conscious of the ability to use re-examination as an advocacy tool to allow the true context of oral testimony to be placed before the Court.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 28 June 2017

Author: Amanda Meinsenhelter