When will cross-examination in a recorded interview be inadmissible?

Most experienced investigators are careful to ask fair and non-leading questions during a recorded interview with a person suspected of a criminal offence or a recorded statement from a witness. But sometimes, the investigator will question in a manner resembling cross-examination.

The rules of evidence clearly prohibit the use of leading questions during the examination-in-chief of a witness in court.¹ But these same rules do not apply to recorded statements. That does not mean, however, that investigators are free to conduct the examination however they please.

Cross-examination in an interview with an accused

There are many authorities relating to the admissibility of admissions made in recorded interviews of an accused, as well as specific provisions of the Uniform Evidence Act engaged. At the heart of most of these authorities is whether there was some unfairness in how the admissions were obtained.

The fact that an accused was ‘cross-examined’ by an investigator in a recorded interview – such as being challenged in the responses or being asked leading questions – is unlikely to be, by itself, unfairness of a kind that would cause admissions to be excluded from evidence at trial.

A leading judgment on cross-examination in a police interview was Kaye J’s ruling in R v Serrano [2007] VSC 164. The accused was on trial for murder and objection was taken to admissions made in his recorded police interview on multiple bases, one of which was the form of questioning resembling cross-examination. Kaye J summarised the law on this issue as follows (at [12](5), citations omitted):

The fact that, in the course of a record of interview, the police have engaged in cross-examination of the accused does not necessarily lead to the exclusion of the answers produced by that questioning. Rather the question is whether the nature of the interview process, including the type of questions asked and the manner in which they were asked, is such that it would be unfair to the accused to admit the contents of that interview in evidence against him; R v Smith; R v O’Neill; R v Clark. An example of impermissible cross-examination which may lead to exclusion of a record of interview, either in whole or in part, is that found in R v Pritchard, where a large number of the questions were asked in a scornful way in tones of incredulity or total disbelief. In that case the Court of Criminal Appeal of Victoria held that the trial judge ought to have excluded the record of interview from evidence.

In the immediate case, Kaye J observed that the accused was giving answers voluntarily, understood he was not obliged to answer them, and was not under unnecessary pressure (at [15]).

Some of the questioning and answers were excluded. This is where the questioning included assumptions the accused had already conceded a damaging fact when he had not (at [18]), or where the questions assumed the deceased had been murdered (at [22]), or whether the accused could explain how the deceased might have injured herself in a manner which would account for the amount and distribution of blood found (at [27]) or where the police made a comment about whether what the accused was saying was accurate (at [33]).

Questions where police challenged or sought explanation from the accused on his version of events were permitted. Questions that repeated matters about which the accused had addressed in an earlier interview were also permitted.

Leading questions in a recorded witness statement

The first analysis will be whether the questioning is, in fact, leading.² A question is not leading simply because it is closed and attracts a ‘yes’ or ‘no’ answer. The Dictionary to the Uniform Evidence Act defines a ‘leading question’ as:

a question asked of a witness that–

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked

For a useful and easy-to-digest paper on what is or is not a leading question, see (now Judge) Andrew Palmer and Justice George Hampel’s piece in the Victorian Bar News.

Assuming that one or more leading questions have been asked of a witness during a recorded statement, the Victorian Court of Appeal has given guidance about admissibility of such evidence in three cases.

In Elliott (a pseudonym) v The King [2023] VSCA 48, the defence objected to the admissibility of two Visual and Audio Recorded Evidence (VARE) statements. Each VARE was the recorded evidence of the same complainant, a child making allegations of sexual assault. During the VAREs, the police investigator had asked the complainant leading questions about what the accused had allegedly done. They assumed facts about which the complainant had not already given evidence . The defence sought to exclude the entire contents of both VAREs under s 138 of the Evidence Act 2008 (improperly obtained evidence), and s 137 of the Evidence Act 2008 (unfairly prejudicial) in the alternative. Priest and Taylor JJA assumed, without deciding, that leading questions could be improper, but ultimately any impropriety in this case was minor (at [30]). Their Honours looked at the questioning in context and considered it fair and reasonable. That suggests a fact-specific analysis, which was balanced with the importance of the evidence in the case, which also dispensed with the s 137 argument (at [31]-[32]).

In Knowles (a pseudonym) v The Queen [2015] VSCA 141, the Court of Appeal held that an allegation provoked by a leading question was of probative value not outweighed by the danger of unfair prejudice. Rather than exclude the evidence, the appellate court held the trial judge should have directed to the jury to exercise caution before acting on the answer to the leading question.

In Martin v The Queen (2013) 46 VR 537, defence objected to the admissibility of a VARE where the complainants’ allegations were elicited only through a series of leading questions. Redlich JA (with whom Maxwell P and Neave JA agreed) said that some allowance must be given to investigators using the VARE process to obtain information (at 546 [36]). Generally, the initial allegation must not be improperly elicited, but subsequent questions about that allegation are unlikely to be leading (at 546-547 [37], [39]). Whether a leading or suggestive question should be excluded is a fact-specific analysis (at 547 [40]). But investigators do not have ‘free rein’ (at 547 [42]). Redlich JA said (at 548 [43]):

Questions that contain suggestions of new allegations, or which seek to ‘improve’ upon the answers to an allegation, or which seek to establish an allegation already denied, are either likely to be excluded or to be given little probative value so requiring a careful direction to the jury… where an allegation of fact is elicited in circumstances which cast real doubt upon its reliability, such evidence alone will not have the quality to support a conviction.

The High Court has also had cause to consider this issue, although in a much more specific case. In Douglass v R (2012) 290 ALR 699, that court unanimously overturned a conviction. The critical evidence, being the complainant’s statements in an interview, was limited detail of an allegation provided only after a leading question and where the complainant had initially denied it. There was no other evidence supporting proof of that allegation.

Conclusion

While the rules of evidence may not strictly prohibit the use of leading questions during recorded interviews or statements, investigators must exercise caution and fairness to ensure the integrity and admissibility of the evidence obtained.

Cross-examination techniques, when used judiciously, may not automatically render an interview unfair, but the overall context and manner of questioning play a crucial role in determining admissibility. Unfair or coercive questioning can lead to exclusion of evidence from a police interview. Similarly, leading questions in witness statements require a fact-specific analysis to assess their impact and admissibility.

Ultimately, investigators must balance the need to gather information with the obligation to conduct fair and just examinations, thereby upholding the principles of justice and ensuring the reliability of the evidence presented in court.

1. E.g. Evidence Act 2008 (Vic), s 37. ↩︎
2. Ward (a pseudonym) v The Queen (2017) 54 VR 68, 88-89 [78]. ↩︎