Victorian Consolidated Legislation

Evidence Act 2008 - SECT 38

Unfavourable witnesses

38. Unfavourable witnesses



(1) A party who called a witness may, with the leave of the court, question
the witness, as though the party were cross-examining the witness, about-

   (a)  evidence given by the witness that is unfavourable to the party; or

   (b)  a matter of which the witness may reasonably be supposed to have
        knowledge and about which it appears to the court the witness is not,
        in examination in chief, making a genuine attempt to give evidence; or

   (c)  whether the witness has, at any time, made a prior inconsistent
        statement.

(2) Questioning a witness under this section is taken to be cross-examination
for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave
of the court, question the witness about matters relevant only to the
witness's credibility.

Note The rules about admissibility of evidence relevant only to credibility
are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties
cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the
witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in
determining whether to give leave or a direction under this section, it is to
take into account-

   (a)  whether the party gave notice at the earliest opportunity of the
        party's intention to seek leave; and

Note Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

   (b)  the matters on which, and the extent to which, the witness has been,
        or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this
section as any other witness if-

   (a)  a proceeding is being conducted in the name of the party by or on
        behalf of an insurer or other person; and

   (b)  the party is a witness in the proceeding.