At the Chancellor’s Lecture last week, former Court of Appeal judge Charles Stephen QC made reference to improper questioning in cross-examination. He made specific mention of Heydon J’s comments in Libke v R (2007) 230 CLR 559. I read the case for the first time this week.
The Evidence Act 1958 has allowed a broad discretion in the way that questions are asked in cross-examination. Questions may be objected to if indecent or scandalous (s 49), or if considered intended to insult or annoy (s 40). In my experience, these provisions are rarely called upon.
The new Evidence Act 2008 is similar, though s 41 does provide that improper questions must be disallowed if asked of vulnerable witnesses, defined as children and the cognitively impaired. (A summary of the changes to statutory improper questioning can be found on page 4 of the Spring edition of the Bar Quarterly, where Stephen Odgers SC provides a rapid-fire description of some of the changes).
Other than these provisions there aren’t many general rules placed on the way questions are asked. There are lots of evidentiary restrictions – hearsay, privilege, opinion, etc – and common law discretions which allow courts to restrict the evidence they receive, but in practice a wide latitude is given to practitioners in the way they conduct their cross. As the High Court recognised in Wakeley and Bartling v The Queen (1990) 93 ALR 79, “the limits of cross-examination are not susceptible of precise definition”: Mason CJ, Brennan, Deane, Toohey and McHugh JJ at 86.
Unfortunately, there’s an altogether too common misconception which is often found at both ends of the bar table that, while examination-in-chief is governed by rules and expectations of propriety, cross-examination is open slather. But cross-examination that merely abuses and confuses a witness is not effective advocacy, no matter how dramatic it might be to watch.
In Libke, the accused stood trial for rape of an intellectually impaired woman. He called himself as a witness and was cross-examined by the Crown prosecutor. The questioning serves as a template of what not to do in cross-examination, whether acting as counsel for the defence or the prosecution. While all four justices criticised the cross-examination in strong terms, Heydon J grouped each form of inappropriate questioning under its own heading. What follows is a long quote, but I think it effectively summarises some of the most common traps cross-examiners fall into [beginning at 121]:
The most striking characteristic of the cross-examination in this case was its wild, uncontrolled and offensive character.
A prosecutor must “conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross-examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative – especially in a prosecutor – to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross-examination.” One reason why there is a rule prohibiting this type of questioning was put thus by Wigmore:
“An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value.” (emphasis in original)
Another was advanced by Lord Langdale MR when he deprecated “the confusion occasioned by cross-examination, as it is too often conducted”, for it tended to “give rise to important errors and omissions”. Yet another was suggested by an American judge: “a mind rudely assailed, naturally shuts itself against its assailant, and reluctantly communicates the truths that it possesses.”
In this case the questioning was conducted “without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law”, and, as a result, it was “indefensible”. The cross-examination was improper because it was “calculated to humiliate, belittle and break the witness”. Its tone “was often sarcastic, personally abusive and derisive”. It resorted to remarks “in the nature of a taunt”. It amounted to “bullying, intimidation, personal vilification or insult”, none of which is permissible.
The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977.
The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he “regularly injected his personal views and editorial comments into the questions he was asking”. One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury’s eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments – particularly where it is counsel for the prosecution who chooses “to throw the weight of his office” into the case. The time for comments, at least legitimate ones – for disparaging comments based on evidence or the lack of it can be legitimate – is the time of final address. “Statements of counsel’s personal opinion have no place in a cross-examination.” The role of prosecution counsel in the administration of justice should not be “personalized”. Their own beliefs should not be “injected” into the case. Thus in R v Hardy junior counsel (the future Gibbs J) for one of the accused asked a witness who had attended certain allegedly seditious meetings: “Then you were never at any of those meetings but in the character of a spy?” The future Lord Ellenborough CJ, appearing for the prosecution, objected to this line of questioning. Eyre LCJ said to defence counsel:
“[Y]our questions ought not to be accompanied with those sort of comments: they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done.”
After junior counsel for the accused sent for leading counsel (the future Lord Erskine LC), and the point was debated further, Eyre LCJ upheld the objection:
“I think it is so clear that the questions that are put are not to be loaded with all of the observations that arise upon all the previous parts of the case, they tend so to distract the attention of every body, they load us in point of time so much, and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from …”.
Comments are particularly objectionable when they are sarcastic or insulting. They are even more objectionable when they are statements indicating the personal belief of prosecution counsel in the credibility or guilt of the accused: that is not something to be said in address, and a fortiori is not something to be said during questioning.
Partly by reason of the interspersing of both comments and questions between the accused’s answers, and partly by reason of other defects in the form of the questions, some “questions” asked during this cross-examination were not single questions, but were compound questions. “A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address.” But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer – either “Yes” or “No”. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. Some “questions” asked in this case contained at least four questions within them.
Cutting off answers before they were completed
On occasion during his cross-examination the accused’s answers were cut off either by a comment or by some further question even though it was clear that there was more which the accused wished to say. “Evidence should ordinarily be given without interruption by counsel.” The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a fashion as to suggest that the answer is complete; it can happen legitimately if a witness’s answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness’s answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like. The right of a cross-examiner to control a witness does not entail a power to prevent the witness from giving any evidence other than that which favours the cross-examiner’s client.
Questions resting on controversial assumptions
The cross-examiner on occasion alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant in the prosecution case. The cross-examiner also put implicitly unfounded assertions that the accused was being evasive. And the cross-examiner, in putting a question about the accused’s dishonesty, wrapped up in it an assumption that there had been an earlier and different piece of dishonesty.
A question put in chief which assumes a fact in controversy is leading and objectionable, “because it affords the willing witness a suggestion of a fact which he might otherwise not have stated to the same effect.” While leading questions in the cross-examination of non-favourable witnesses are not intrinsically objectionable, “[w]itnesses should not be cross-examined on the assumption that they have testified to facts regarding which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice.” This is because a leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, “may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his.” A further vice in this type of questioning is: “An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation.” Questions of this character are misleading and confusing, within the meaning of such the statutory and common law rules.
Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument. Examples include: “That doesn’t tell us much, does it?”, “Look, I’m giving you every opportunity?”, “I’ll shift to another topic whenever you’re prepared to finish it”, and “We want honesty at all times, of course”. In form these remarks seemed apt to trigger a debate about how much the accused’s hearers had been told, whether he was being given every opportunity, whether he had finished a topic, and whether he was being honest. The vice in a particular type of argumentative cross-examination was described thus by the English Court of Appeal:
“One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: ‘I suggest to you that …’ or ‘Is your evidence to be taken as suggesting that …?’ If the witness were a prudent person he would say, with the highest degree of politeness: ‘What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.’ An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact.”
Like several other of the rules discussed above, the rule against argumentative questioning rests on the need not to mislead or confuse witnesses.
The effect of the rules on the value of testimony
It is not unique in the law of evidence to find that the more closely the rules for admissibility are complied with, the greater the utility of the testimony from the point of view of the party eliciting it. It is certainly the case in this field. The rules permit a steady, methodical destruction of the case advanced by the party calling the witness, and compliance with them prevents undue sympathy for the witness developing. It is perfectly possible to conduct a rigorous, testing, thorough, aggressive and determined cross-examination while preserving the most scrupulous courtesy and calmness. From the point of view of cross-examiners, it is much more efficient to comply with the rules than not to do so.
Specific criticism was reserved for the trial judge who rarely interjected during the cross, and when he did so didn’t act to curtail the unfair questioning. The High Court found that the failure of counsel to object to the questioning did not remove the obligation of the presiding judge to ensure a fair trial.
Stephen Charles made the point that improper questioning (of a serious degree) may lead to an unfair trial, an outcome that the trial judge is bound to prevent. It may lead to a conviction being set aside on appeal, and may also have human rights implications.
In R v TA (2003) 57 NSWLR 444, Chief Justice Spigelman made clear that similar duties attach to trial judges to prevent inappropriate and harassing questions being asked of prosecution witnesses [at 446]:
Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.