12. Witness Evidence

Question 1

What is the general rule for what a witness must have done to be able to give evidence at trial?

Answer 1

Signed a previous witness statement setting out their evidence

Question 2

What happens if a witness statement is not served, and what is a way around this?

Answer 2

Party cannot call that witness, unless they receive court permission

Question 3

If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served?

Answer 3

7 days

Question 4

What can the other party do if a party decides not to call a witness who has had a witness statement served, and how will the court treat what they do?

Answer 4

Other party can refer to the statement, but the court will treat this as hearsay

Question 5

Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?

Answer 5

1. Statement must have been made out of court
2. Statement must be used to prove the truth of what is being stated

Question 6

When will a witness statement not be hearsay?

Answer 6

When the witness thereafter comes to court, their statement plus their answers under cross-examination are all treated as if they were made in court and cease to be hearsay

Question 7

What six factors will the court consider when determining the weight to apply to a witness statement entered as evidence where the witness does not come to court?

Answer 7

1. Reasonable/practicable to force witness to attend?
2. Original statement made contemporaneous with the event?
3. Single or multiple hearsay?
4. Motive to misrepresent facts?
5. Was original statement edited?
6. Does the situation suggest attempt to prevent proper evaluation of evidence?

Question 8

If a party wishes to rely on hearsay evidence, what must they do, and what is the effect of the witness attending the trial on how this obligation must be satisfied?

Answer 8

Must serve notice on the other side if no witness statement is served, and wish to rely on hearsay evidence at trial.

If the witness is attending court, the witness statement itself constitutes notice.

If witness is not attending, inform and explain why to the other party.

Question 9

In response to notice that the other side wishes to rely on hearsay evidence, within what time limit must the recipient make an application to the court to call the witness for cross-examination?

Answer 9

14 days of notice being served

Question 10

One of what three things must occur for a party to have their own witness declared as hostile by the court?

Answer 10

1. Witness is unfavourable to the side who called them
2. Lack of cooperation to tell the truth on behalf of party who called them, or
3. Evidence is entirely inconsistent with their witness statement

Question 11

What is the effect of a witness being declared hostile?

Answer 11

They can be cross-examined by the party who called them

Question 12

What is similar fact evidence and what must it be to be admissible?

Answer 12

Evidence of previous incidents or conduct as evidence of similar conduct in the case in question. Must be relevant.

Question 13

After receipt of the hearsay notice, how long does the other party have to request particulars of evidence?

Answer 13

within 28 days from receipt of notice

Question 14

What is a Notice to Admit Facts, and within what time limit before trial must it be served?

Answer 14

A request on the other side to admit certain facts that are capable of agreement and admission. Must be served 21 days before trial.
* no later than last day for serving witness statemenets.

Question 15

What happens when a Notice to Admit Facts is served, the facts were not admitted, but were then proved at trial?

Answer 15

The court may order the party who refused to admit to pay the costs associated with proving the facts at trial, irrespective of the outcome of the case

Question 16

What are four types of evidence that is inadmissible?

Answer 16

1. Opinion evidence, except from experts
2. Evidence that is privileged or protected by public interest immunity
3. Communications that are without prejudice
4. Any evidence which is irrelevant

Question 17

Does the court have discretion to disallow evidence which would otherwise be admissible?

Answer 17

Yes

Question 18

What evidence is a lay person allowed to give, even though it may appear to contradict the general rule that only experts can give opinion evidence?

Answer 18

Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident

Question 19

What is the exception to the general rule that witness statements may only be used for purpose of the proceedings in which it is served?

Answer 19

Where they have been put in evidence at a trial held in public.
- in such cases, they can be used for purposes other than the proceedings in which they have been served.

Question 20

What are the three exceptions where a witness statement can be used outside of the relevant proceedings?

Answer 20

1) Witness gives consent; or
2) Court permits it; or
3) Evidence is given at a public hearing

Question 21

Within what timeframe should a party apply for permission to cross-examine a witness?

Answer 21

no more than 14 days following receipt of witness statement/intention to rely on hearsay evidence.

• same deadline also applies for service of notice to attack witness’ credibility.

Question 22

When might a party wish to attack the credibility of their opponent’s witness?

Answer 22

Where their opponent will rely on hearsay evidence without calling their witness to give oral evidence.
- notify within 14 days of receipt Ws statement.

Question 23

What are the four options available to a party once they receive a hearsay notice from their opponent?

Answer 23

1) Requests particulars
2) Call for cross-examination (14 days)
3) Challenge the weight of the hearsay evidence at the trial.
4) Attack witness’ credibility (14 days)

Question 24

When is serving a witness summary appropriate?

Answer 24

where obtaining a witness statement is not possible.
* party can apply to the court without notice to serve a summary, outlining the evidence which would have otherwise been included.
* If evidence is not known, then proposal question party to put before their witness. .

Question 25

When should a party serve their witness summary?

Answer 25

within same time period as witness statement, would otherwise been served

Question 26

What should a parties do if they are not able to exchange within the specified deadline?

Answer 26

agree in writing to up to a 28 days extension on service, without the court’s approval.
* Provided hearing is not put at risk.