Sources of the Law of Evidence, the Adversary System, Functions of Judge, Counsel and Jury & Ethical Issues


  • role of advocates
  • ethical issues
  • burden of proof
  • judicial discretion
  • trial process
  • competence & compellability
  • examination of witnesses
  • examination of witnesses whose evidence may require an appreciation of gender & cultural differences
  • skill of planning questions & making objections
  • exclusionary rules of evidence


The law of evidence has three main elements

  1. prescriptive rules
  2. ethical principles; and
  3. forensic practices

All of these govern how facts and other information are adduced in proceedings, both civil & criminal.

Evidence consists of the testimony, hearsay, documents, things and facts which a court will accept as evidence of the facts in issue in a given case.

Evidence is concerned with:

  • the kind of evidence which will be accepted by a Court
  • the amount of evidence which will be required by a Court
  • the manner in which evidence must be presented to a Court; and
  • the persons who may (and often must) give that evidence/testify

thinkThink! Rules of Evidence are used as a filter to exclude evidence from being admitted in a court .

Richard Posner (highly regarded Supreme Court Judge and professor in the USA):

“the rules of evidence, that is rules concerning hearsay evidence, expert testimony, cross examination, the balancing of probative value of a given piece of evidence against its prejudicial effect on a jury, jury selection, the authentication of documents and so forth has undoubted value in eliminating from litigation the most spurious and otherwise least helpful evidence that a litigant might want to present.

Evidentiary rules are mostly exclusionary c.f. coronial hearings: ‘The Coroners Court is ‘not bound by the rules of evidence, but may inform itself in any way it considers appropriate’: s37(1), Coroners Act 2003 (Qld).


The prescriptive rules of evidence for Queensland & Commonwealth Courts come from a number of sources:

  • the common law
  • the Evidence Act 1977 (Qld) – cited (QEA)
  • the Evidence Act 1995 (Cth) – cited (CEA)
  • the Judiciary Act 1903 (Cth) cited (CJA) *Refer to s79, CJA & s4, CEA).
  • miscellaneous legislation e.g. the Criminal Code 1899 (Qld), the Uniform Civil Procedure Rules (UCPR), the Family Law Act 1975 (Cth) etc…

The CEA applies in Commonwealth Courts only, save for the sections set out in s5, CEA which apply in all Australian Courts:

  • Evidence of tags and labels in Customs prosecutions and Excise prosecutions: s70(2), CEA
  • Matters of law: s143, CEA
  • Seals and signatures: s150, CEA
  • Gazettes and other official documents: s153, CEA
  • Documents published by authority of Parliaments etc: s154, CEA
  • Official records: s155, CEA
  • Commonwealth documents: s155A, CEA
  • Public documents relating to court processes: s157, CEA
  • Evidence of certain public documents: s158, CEA
  • Official statistics: s159, CEA
  • Proof of letters having been sent by Commonwealth agencies: s163, CEA
  • Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents: s182, CEA

Under s79, CJA where a ‘gap’ exists in Commonwealth evidence rules, this is filled by the rules of evidence of the State where the Commonwealth Court is sitting.

Under s79, CJA the rules of evidence that apply in State Courts exercising Federal jurisdiction are those of the State Court itself, not those found in the CEA.


Functions of the Judge / Magistrate, Counsel & Jury

Questions of law must be determined by the Judge and questions of fact must be determined by the jury, subject to certain exceptions.

Questions regarding the admissibility of evidence are questions for the judge to decide

The witnesses to be called and the order of them giving evidence are subject to certain rules, mainly in the discretion of counsel. It is the job of the counsel to best present their clients case within the constraints imposed by the rules of procedure and the law of evidence i.e. s26, CEA provides ‘the Court may make such orders as it considers just in relation to the way in which witnesses are to be questioned, the production and use of documents and things in the connection with questioning of witnesses, the order in which parties may question a witness and the presence and behaviour of any person in connection with the questioning of witnesses.’

In addition to presenting evidence this will involve opening and closing addresses in which the case is summarised and its strong features highlighted.

The Judge / Magistrate may ask questions of witnesses called by counsel, although this should not be done until all questioning by counsel is complete. As a general rule such questions should not occur by the Judge / Magistrate unless in the interests of justice and should be confined to issues raised by counsel.

The Judge / Magistrate should not unduly intrude into the adversarial arena, but may ask questions at the request of the jury on relevant and admissible matters, even if those matters were not raised by counsel: Hsing v R.

  1. General rule: questions of law must be determined by the Judge / Magistrate and questions of fact must be determined by the jury, or otherwise by the Judge / Magistrate where no jury, as the ‘tribunal of fact’. Where there is no jury, questions of admissibility of evidence or exercise of judicial discretion are questions of law.
  2. Some evidence is admissible or a discretion exercisable only when certain conditions precedent have been fulfilled. The Judge / Magistrate alone is to decide (even in cases with a jury) as a question of fact whether the relevant facts fulfilling the condition have occurred.
  3. One of counsel’s functions is to maintain observance of the rules and principles of evidence by making an objection when opposing counsel acts outside those rules and principles e.g. by attempting to introduce inadmissible material. The objection should be made immediately as the grounds for it become apparent and of course counsel must be prepared to argue those grounds to the Judge / Magistrate and to support them with authorities.

Ethical Principles

Principle of almost absolute judicial independence means that Judges / Magistrates in Queensland have almost unfettered discretion as to how they conduct themselves in Court. Society relies on their propriety as a matter of expectation, not formal regulation.

The Role of Counsel

Counsel has an ethical duty to ensure material witnesses (those with knowledge of a significant matter) are called unless there are acceptable reasons otherwise. In this way the system assumes the truth can be ascertained despite the broad measure of control delegated by the system to the participants themselves.

Duty of the Prosecution

In any case before a Judge / Magistrate where the prosecution is in possession of material which is capable of being regarded as exculpatory it should be put before the Judge / Magistrate. This doctrine is not limited to cases where the accused has no legal representation: R v Annewetey, 162 per Wanstall ACJ.

If a party in a civil trial does not call a material witness the reasoning, known as the Jones v Dunkel reasoning, is available to that party. The failure to call that witness permits the tribunal of fact to reason that the witness was not called because they would not have done the party’s case any good.

There is a qualification on this general duty to call material witnesses in a criminal trial because of the accusatorial nature of a prosecution. The prosecutor has an ethical duty to call all material witnesses, whether they support or contradict the prosecution’s case. However, the defence have no obligation to either call the accused or to call any witnesses and the failure to do so generally will not permit the tribunal of fact to use the Jones v Dunkel reasoning against them: Dyers v R; Azzopardi v R.


R v Apostilides (1984) 154 CLR 563

Case concerns whether trial judge can direct prosecutor to call a witness.

  1. Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown;
  2. The Judge may, but is not obliged to, question the prosecutor to ascertain the reasons that led the prosecutor to decline to call a particular person as a witness. The Judge is not called upon the adjudicate the sufficiency of those reasons;
  3. At the closing of the Crown case the Judge may properly invite the prosecutor to reconsider a decision not to call a witness and to have regard to the implications that appear to the Judge at that stage of proceedings. The Judge cannot direct the prosecutor to call a particular witness;
  4. When charging the jury, the Judge may make comments as he thinks appropriate about the affect that the prosecutor’s failure to call a particular person as a witness would appear to have had on the course of the trial.
  5. Save in the most exceptional circumstances, the Judge should not himself call a person to give evidence;
  6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice.

Case History

Apostilides (‘A’) tried at Victorian County Court on 4 counts of rape; A was convicted; appeal to Full Court of the Victorian Supreme Court allowed; new trial ordered; Crown applied for special leave to appeal to the High Court

Facts of the Case

A and prosecutrix / complainant on the night of the alleged rapes were accompanied by two other persons, Tibballs and Brodie (‘T’ and ‘B’); T & B  appeared on the indictment but were not called as witnesses for the prosecution; prosecutor made available police statements of T & B to defence counsel; T & B were called by defence counsel and cross-examined by the prosecutor; on the night of the alleged rapes the prosecutrix / complainant and T were in a hotel bar awaiting the arrival of their friend Jeffery; A, the applicant, invited the two women to have a drink with him and his friend B; women refused as they were about to dine at a reserved table in the hotel restaurant; the complainant told the men they could join the two women for a drink in the restaurant; applicant and B joined all three women at their table; evidence  that at one stage the applicant put his arm around the complainant and under her shirt; complainant quickly removed his arm; the two couples (complainant/applicant & T/B) became increasingly friendly throughout the remainder of the night; on two occasions the applicant gave the complainant a ‘quick hug’; both couples, with exception of Jeffery, continued on to the complainants home on her invitation; the group continued to drink  and listen to records in the living room of the complainant’s home; twice the applicant pulled the complainant onto his knee, the complainant immediately stood up on both occasions; later at approximately 2am the complainant told the men it was time for them to leave; applicant asked whether that included him; complainant relied ‘Yes, you too’; complainant witnessed T & B leave her home; applicant remained and returned to the living room, poured himself a glass of port, walked towards the front door, grabbed the complainant, slammed the door shit, pushed her into her bedroom stating he intended to have his way whether she wanted it or not; layed on top of her on the bed; applied force to her neck to restrain her; applicant acceded to complainant’s plea to allow her to go to the toilet and stood over her in watch in the process; the applicant gripped her arm and dragged her back to the bedroom from the toilet and raped her 4 times (twice vaginally, manually and by forcing his penis into her mouth); applicant then compelled her to lue with him on the double bed in the next room; applicant fell asleep; while asleep, the complainant alighted to her neighbours house where she complained that she had been raped; police arrived.


At trial, the names of B & T appeared on the indictment as additional witnesses for the Crown; Crown prosecutor formed a judgment during trial that B & T should not be called as witnesses; defence counsel drew trial judges attention to omission of the Crown prosecutor to advance any reason for such a decision; defence counsel submitted unless reasons for not calling the witnesses were disclosed, the Crown should be obliged to call them; defence counsel stated consideration of whether the trial judge should call the witnesses; trial judge doubted whether he had power to call witnesses; Judge advised counsel to conduct defence case on the assumption that the likelihood of the trial judge calling the witnesses was extremely remote; Crown case closed; cross-examination of B by the Crown prosecutor adducing from the witness that inter alia, 11 years previously B was convicted of conspiracy and released on good behaviour bond; Crown prosecutor disclosed to the Court information, upon which he had decided not to call T & B as Crown witnesses

  • Suspected, and subsequently confirmed in evidence that T had maintained a romantic attachment with B; prosecutor informed that complainant was informed by T that she had ‘put herself into the defence camp’ and that she was inflamed by any attempt to get her to give evidence for the prosecution
  • Crown prosecutor learnt B had engaged in schoolboy theft, 8 counts of false pretences preferred against B had been adjourned, and that he had been convicted on a charge of conspiracy

Judicial Reasoning

Per Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ, at 575:

“the prosecutor’s role is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but a heavy one.”

Per Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ, at 576:

“A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it, it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then if necessary, re-examined.”

“More would be required to establish ‘most exceptional circumstances” than the refusal of the prosecutor, for reasons which the Judge thinks insufficient, to call a witness.”

Reasons for the need for extreme reluctance of the trial judge to even consider usurping the responsibility of the prosecution / defence with respect to the calling of witnesses can be found in Whitehorn, at 682-3 per Dawson J:

“A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the Judges role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side… He frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision. If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon… If the witness is unreliable (and if neither party has seen fit to call him, that is more likely then not), the fact that he is called by the Judge may give his evidence an undesirable aspect of objectivity. There can be no assurance that his credit will be tested by either side but, if it is, the Judge has no means whereby he can assure that any necessary steps to re-establish the witness’s credit are taken”.

Per Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ, at 577:

“Because the Judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the Judge in a function not appropriately his. Moreover, evidence called by a trial judge may have the affect of shifting the ground upon which the parties have determined to contest the issue… It may have the affect of altering the issue itself”.


R v Annewetey [1976] Qd R 161

Case concerns an obligation of the prosecutor to put exculpatory material before a Court.

  1. In any case before a Magistrate where the prosecution is in possession of material which is capable of being regarded as exculpatory it should be put before the Magistrate. This doctrine  is not limited to cases where the accused has no legal representation.

Facts of the Case

Appellant pleaded guilty before a Magistrate to 4 charges under s427 of the Criminal Code (Qld) arising from having passed cheques which were dishonoured by the bank; appellant is Lebanese, residing in Australia at the time the offences were committed; interview by police; appellant made written statements raising issue as to the existence of his specific intent to defraud (intent being a necessary element of the offence); an element the Crown was bound to prove in order to obtain a conviction; appellant advised by duty solicitor; brief instructions; investigating officer prepared brief sheets in respect of each of the offences; outlined facts as he understood them to be; assertion in statement of facts the accused had admitted not only that he had no funds to meet the cheque but that he had no immediate expectation of receiving any money to enable the account to be put into credit; written statements were not as explicit as the effect of the statements contained in the brief sheet standing alone; had the prosecutor read the relevant part of the interview in which the appellant had made more fully his explanation for his actions in cashing the cheque, the Magistrate could have almost certainly have been alerted to the fact that matters were raised which might well afford an answer to the charge under s22 of the Criminal Code (Qld).

Per Wanstall ACJ, at 162:

“In the circumstances of the accused having no legal representation it was incumbent on the prosecution to place before the Magistrate all relevant matters relating to the charge and this included any exculpatory statements made by the alleged offender. This was not done. Had it been done the Magistrate would have been bound to refrain from accepting the plea at any rate until the doubts created by the exculpatory claim had been resolved.”

“In any case before a Magistrate where the prosecution is in possession of material which is capable of being regarded as exculpatory it should be put before the Magistrate, and certainly in this case having regard to the appellant;s limitations in articulating in the English language.”

Per D. M. Campbell J, at 163:

“In order to establish the charges which were laid under s427 of the Code, a specific intent to defraud has to be proved as an element of the offences. No matter how unsatisfactory his explanations were, they cannot be construed as containing an admission of an intent to defraud. Accordingly, had they been brought to the notice of the Magistrate please of not guilty would have had to have been entered. Although the appellant had the help of the duty solicitor, he did not succeed in instructing him fully. It does not appear that the duty solicitor was aware of the existence of the handwritten statements.”

(Appeal allowed, conviction quashed).


Giannarelli v Wrath (1988) 165 CLR 543

Case concerns barristers immunity from suit in negligence.

Facts of the Case

Mario and Giovanni Giannerrelli (‘M’ & ‘G’) were convicted of perjury as a result of evidence they gave to the Commonwealth and State Royal Commission into the Federated Ship Painters’ and Dockers’ Union; M & G appealed to the CoCA; appeals were dismissed; appeals to the High Court were allowed and their convictions were quashed; appeals were allowed on ground that s6DD of the Royal Commissions Act 1902 (Cth) had rendered the evidence given inadmissible on the perjury charges; M & G instituted proceedings for damages for negligence against Wrath, a barrister who appeared for them at their committal proceedings; negligence alleged was the defendant’s alleged failure to advise that s6DD would render the evidence given in the Royal Commission inadmissible and thus defeat the Crown case, and their alleged failure to object on that ground to the tender of that evidence, as it was inadmissible; applicants’ argued that s10(2) of the Legal Profession Act 1958 (Vic) imposes liability on the respondents for negligence and that, in the alternative, the respondents are subject to a common law duty of care.

Per Mason CJ, at 555:

“the common law has for a very long time recognised that the barrister is not subject to such a general duty of care… immunity of the barrister from liability in negligence to his client, at least in respect of Court work is supported by powerful authority… various explanations for the barristers immunity have been advanced. Historically it has been linked to the barristers inability to sue the client for his professional fees…the House of Lords sparely rejected the suggestion that the barristers inability to sue for his fees could support his immunity in negligence. The reason given for that conclusion is compelling. The negligent performance of a service, even if it be undertaken without consideration, gives rise to liability in negligence, if the person for whose benefit the service is performed relies upon that service.”

So the barristers immunity, if it is to be sustained, must rest on considerations of public policy.”

  1. the peculiar nature of the barrister’s responsibility when he appears for his client in litigation
  2. the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings

Peculiar Nature of Barristers Responsibility

“The peculiar feature of counsel’s responsibility is that he owes a duty to the Court as well as to his client. His duty to his client is subject to his overriding duty to the Court. In the performance of that overriding duty there is a strong element of public interest.”

Per Mason CJ, at 556-7:

“The performance by counsel of his paramount duty to the Court will require him to act in a variety of ways to the possible disadvantage to the client. Counsel must not mislead the Court, case unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his clients case. And if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.”

“It is not that a barristers duty to the Court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the Court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barristers duty to the Cou”rt epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his clients success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examiniation, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the Court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.”

“The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel. The Judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel not by the Judge. This is why our system of justice as administered by the Courts has proceeded on the footing that in general the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the Court.”

Per Mason CJ, at 557:

“There is a real risk that, if counsel were exposed to liability in negligence, the existence of that potential liability would influence the exercise of that independent judgment by making him more mindful of the need to avoid any possibility of liability to his client. In some situations, in order to avoid that possibility, counsel would pursue matters which he would not otherwise pursue if the exposure to liability in negligence did not exist. To expect that counsel’s conduct of a case would not be influenced by his exposure to such a potential liability would be little more than a pious hope. Inevitably, some counsel would be more inclined to act as mere agents of their clients to the detriment of the interests of the Court and of the administration of justice generally. Insurance might alleviate but would not eliminate the problem. Counsel would naturally be concerned to avoid allegations of negligence…litigation would tend to become more lengthy, more complex and more costly.”

“To deny the litigant a cause of action for negligence, even if it be limited to in-court negligence, on the part of his counsel is a serious step. It is to sanction a continuing exception in favour of counsel, as against his client, from the ever expanding tort of negligence. But the exception which the law creates is not to benefit counsel but to protect the administration of justice. And the exception in favour of counsel is in conformity with the privilege which the law has always conferred in the interests of public policy on those engaged in the administration of justice, whether as a Judge.. juror, witness, party counsel or solicitor, in respect of what they say in Court.”

Per Mason CJ, at 558:

“The advocate is as essential a participant in our system of justice as are the Judge, the jury and the witness and his freedom of judgment must be protected…The need for that protection arises from ‘the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty’.”

Adverse Consequences for the Administration of Justice

Impact on the administration of justice of allowing Court decisions to become the subject of collateral attack by means of actions against counsel for in-court negligence.

Per Mason CJ, at 558:

“Exposure of counsel to liability for such negligence would unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation. That would be the central issue for decision in secondary litigation of this kink. If the plaintiff were to succeed, the resolution of this issue by a different Court, and on materials which might well differ from those presented in the initial litigation, due to lapse of time or other reasons, would undermine the status of the original decision. Yet an appeal against that decision might not succeed with the result that it would stand, though its status would be tarnished by the outcome of the collateral proceedings. The impact of a successful challenge to a criminal conviction resulting in a sentence of imprisonment would be all the greater. It would be destructive of public confidence in the administration of justice. And for this very reason there would be a strong incentive on the part of a disappointed litigant to sue counsel for negligence as an indirect means of calling in question the decision in the initial litigation”.

Per Mason CJ, at 559-60:

“On the issue of liability for in-court negligence I would draw no distinction between barristers and solicitors. The reasons for holding that a barrister is not under a duty of care apply with equal force to the solicitor who acts as an advocate… the same immunity attaches to a solicitor acting as an advocate in Court as attaches to a barrister. It is the function performed, not the label attached, which gives rise to the limited immunity.”

“However, the ground for denying liability for in-court negligence have no application to work done out of Court which is unconnected with work done in Court… The public policy considerations underlying immunity from in-court negligence have no relevance to a barristers liability for negligent advice in relation to out-of-court matters.”

“The problem is where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door.

“Preparation of a case out of Court cannot be divorced from presentation in Court. The two are inextricably interwoven so that the immunity must extend to work done out of Court which leads to a decision affecting the conduct of the case in Court.”

Per Mason CJ, at 560:

“But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity… the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.”

“s6DD was a matter of defence to the charge. The failure to raise it as a defence like the failure to raise it as a ground of objection to the reception of the evidence, was an incident of the conduct and management of the case in Court. Accordingly the negligence complained of falls within the common law immunity.”

The public interest in the due administration of justice remains a valid unifying theme for the various issues of public policy

Per Wilson J, at 572:

  1. the concern that if counsel could be sued for negligence, they would be tempted to prefer the interests of their clients and would be deflected from observing their duty to the Court;
  2. the adverse effect that the fear of litigation may have on the barrister’s efficient conduct of Court proceedings;
  3. the ‘cab-rank principle’, whereby a barrister is not free within his field of practice to choose whether or not to act for a person who desires his services and can pay his fee;
  4. the special character of the judicial process wherein Judges, jurors and witnesses are immune from civil action;
  5. the threat to the public interest centred in the finality of litigation

Per Wilson J, at 572:

“Not all of these considerations are of equal weight. There is no reason to suppose that counsel would be deterred by the possibility of a negligence claim from discharging a clear duty to the Court in preference to observing the wishes of the client. Counsel could never be in breach of duty to the client by fulfilling the paramount duty (to the Court).”

(See 573-4 for relitigation argument).

(See 576 for public interest argument).

(Appeals dismissed).

CASE STUDY: HSING V R (1984) 12 A Crim R 196

Hsing V R (1984) 12 A Crim R 196

Case concerns the proper practice of a trial judge in the questioning of a witness.

Facts of the Case

Appellant convicted of supplying prohibited drug heroin; appealed on ground trial judge erred by excessively interrupting counsel during evidence in chief, cross-examination and re-examination of a vital expert witness for the defence; trial judge asked 122 questions during evidence in chief, 46 during cross-examination, 10 during re-examination; trial judge asked questions directed to discrediting the witness; introduced own views at various points; counsel for appellant did not object at any stage of the trial to the degree of participation by the trial judge.

Held: (allowing the appeal)

  1. The trial judge did exceed the degree of participation in the examination of a witness which is permissible and proper for a Judge so as to bring about a miscarriage of justice. The evidence of a vital witness was not allowed to be called and presented to the jury by the appellant counsel in the manner counsel intended. The degree of participation in the cross-examination of the witness resulted in the witness in effect being cross-examined from two directions at the same time, exposing him to a degree of discomfort which could have hampered his capacity to put his expert view before the jury;
  2. A mere statistical count on the number of questions asked by the trial judge does not necessarily demonstrate undue intrusion by the Judge;
  3. The fact that counsel for the appellant did not object to the degree of participation by the trial judge is a factor to be weighed when deciding whether the trial judge has erred, but is not fatal to such an appeal;
  4. The importance of the witness’s evidence to the defence case is another factor to be taken into account when deciding whether the trial judge has erred.



Whether, on a reading of the transcript of this witness’s evidence in its entirety, there is a sufficient basis made out for concluding that the participation by the trial judge distorted the trial process so as to bring about a miscarriage of justice?

Per Street CJ, at 200:

“I have no doubt in the present case the learned Judge acted with the best intention and in a desire to assist the jury to do justice, but I am forced, with regret, to the conclusion that his Honour’s questioning overstepped the limits beyond which a Judge should not go.” – Citing Owen J in Martin’s case.

“In Damic, at 84 a caution was sounded against…Undue intrusion by the Judge into the ordinary course of eliciting evidence from witnesses called by the parties. The presiding Judge has a responsibility to see that such evidence comes out fairly and intelligibly. Whilst he must exercise great care to avoid interfering with the course of examination, cross-examination or reexamination, it is permissible and proper practice for a Judge to ask a question or questions to elucidate answers given by the witness where he considers this course desirable in the interests of justice.”

“In every case where a question such as this comes up for evaluation and decision, the ultimate conclusion must necessarily depend upon the degree of participation by the presiding Judge. In this case, without going in detail to the transcript, I have reached the conclusion that the learned trial judge did exceed the permissible limits. The evidence of this most important witness was not allowed to be called and presented to the jury by counsel for the appellant in the manner in which counsel would have sought to have done. The course of the evidence was in effect directed by the interventions of the Judge and the raising by him of topics which diverted what was no doubt the intended course of the evidence in chief. His Honour’s participation in the cross-examination, in my view, resulted in the witness being cross-examined in effect from two directions at the same time, this exposing him to a degree of discomfort, which again could well have hampered his capacity to put before the jury his views upon the matters in respect of which his expert evidence was called.

The interests of justice require that the appeal should be allowed, the conviction quashed and a new trial should be directed.”

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