12. Witness Evidence Flashcards
What is the general rule for what a witness must have done to be able to give evidence at trial?
Signed a previous witness statement setting out their evidence
What happens if a witness statement is not served, and what is a way around this?
Party cannot call that witness, unless they receive court permission
If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served?
7 days
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?
Other party can refer to the statement, but the court will treat this as hearsay
Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?
- Statement must have been made out of court
- Statement must be used to prove the truth of what is being stated
When will a witness statement not be hearsay?
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
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?
- Reasonable/practicable to force witness to attend?
- Original statement made contemporaneous with the event?
- Single or multiple hearsay?
- Motive to misrepresent facts?
- Was original statement edited?
- Does the situation suggest attempt to prevent proper evaluation of evidence?
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?
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.
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?
14 days of notice being served
One of what three things must occur for a party to have their own witness declared as hostile by the court?
- Witness is unfavourable to the side who called them
- Lack of cooperation to tell the truth on behalf of party who called them, or
- Evidence is entirely inconsistent with their witness statement
What is the effect of a witness being declared hostile?
They can be cross-examined by the party who called them
What is similar fact evidence and what must it be to be admissible?
Evidence of previous incidents or conduct as evidence of similar conduct in the case in question. Must be relevant.
After receipt of the hearsay notice, how long does the other party have to request particulars of evidence?
within 28 days from receipt of notice
What is a Notice to Admit Facts, and within what time limit before trial must it be served?
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.
What happens when a Notice to Admit Facts is served, the facts were not admitted, but were then proved at trial?
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
What are four types of evidence that is inadmissible?
- Opinion evidence, except from experts
- Evidence that is privileged or protected by public interest immunity
- Communications that are without prejudice
- Any evidence which is irrelevant
Does the court have discretion to disallow evidence which would otherwise be admissible?
Yes
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?
Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident
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?
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.
What are the three exceptions where a witness statement can be used outside of the relevant proceedings?
1) Witness gives consent; or
2) Court permits it; or
3) Evidence is given at a public hearing
Within what timeframe should a party apply for permission to cross-examine a witness?
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.
When might a party wish to attack the credibility of their opponent’s witness?
Where their opponent will rely on hearsay evidence without calling their witness to give oral evidence.
- notify within 14 days of receipt Ws statement.
What are the four options available to a party once they receive a hearsay notice from their opponent?
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)
When is serving a witness summary appropriate?
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. .
