R v Roger Smallman  NZDC 4892
Published 16 August 2016
Hostile witness — cross-examination by party of own witness — Evidence Act 2006 ss 4 and 94.
The Crown was granted permission to cross-examine their own witness after he was found to be hostile according to s 4 of the Act.
Section 4 defines hostile as meaning that the witness:
(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
(c) refuses to answer questions or deliberately withholds evidence.
Section 94 provides an exception to the general rule that a party cannot cross-examine their own witness. Meeting the definition of “hostility” under s 4 was a prerequisite to the Crown being able to examine their witness.
Here the witness’s behaviour and refusal to talk about what had happened amounted to a hostile amicus and created extreme inconsistencies.