R v Roger Smallman [2016] 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.