19 Civil Trial and Evidence

Question 1

What is the usual sequence of events at trials?

Answer 1

• Claimant’s opening speech
• Claimant calls witnesses
  
  • Sworn in or affirm
  • Examination-in-chief (“X”)
  • Witnesses will have signed witness statements
  • These will be in the trial bundles
  • Witness statements stand as their evidence-in-chief
  • Cross-examination (“XX”) by the other side
  • Re-examination (“RX”) by Claimant
  • Ask judge to “release” the witness (if not likely to be needed again)
  • Call next witness etc
• C tenders documentary evidence, hearsay etc. Usually in the trial bundles
• C closes its case: “That is the case for the Claimant”
• [Possible submission of no case to answer: rare in civil trials]
• Defendant calls witnesses
• Defence closing speech
• Claimant closing speech
• Judgment by judge
• Arguments over costs
• Possible summary assessment of costs [mainly fast track trials]
• Permission to appeal

Question 2

Can judge dispose of opening address?

Answer 2

yes

Question 3

What is the position in relation to closing speech?

E.g. if there was evidence, if there was not.

Answer 3

Norm D will put in evidence, in which case the order of closing speeches is:

• D first
• C last

Where D tenders no evidence:

• C first
• D last

Question 4

Who will set the timetable for trial?

Answer 4

Trial timetable: designates how time available for trial should be used. It will be set by court in consultation with parties.

• Set ASAP after filing pre-trial checklists (typically at pre-trial review)
• Trial judge MAY set own timetable
• Trial judge MAY confirm/vary previous trial timetable

Question 5

What is Testimony?

Answer 5

Testimony = statements of witness made orally in court + presented as evid of truth.

Question 6

Direct Testimony (not same as direct evid) =

What is it?

Answer 6

statement of W about fact he claims to have direct, personal, first-hand knowledge.

Question 7

Hearsay =

definition

Answer 7

statement other given by W offered as evid of truth of contents.

Question 8

What is :

Real evidence

Doc evidence

Primary evidence

Secondary evidence

Answer 8

Real Evid = norm material object for inspection

Doc evid = docs for inspection, either real evid or hearsay/direct evid

Primary evid = evid of best kind (e.g. original doc).

Secondary evid = inferior kind of evid, e.g. copy time estimates.

Question 9

Who has the BoP?

Answer 9

BURDEN OF PROOF

Gen rule = legal burden on party asserting + not denying. He who asserts MUST prove. So C must prove cause of action. D prove elements of Def. Whether burden discharged = tribunal of fact. C proves cause of action. D proves defence.

Question 10

wHAT IS THE STANDARD OF PROOF?

Answer 10

Standard of proof = Balance of probabilities = “more probable than not”.

Question 11

Are leading questions allowed?

Answer 11

Leading Q.s only allowed: In XX + against hostile W

Leading questions only allowed in examination in chief

1. Formal matters
2. Introductory matters
3. Facts not in dispute
4. Where counsel for other side indicated no objection to leading.

In the SMALL CLAIMS COURT – Strict rules of evidence DO NOT apply

Question 12

Can pLANS,PHOTOGRAPHS OR MODELS BE USED?

Answer 12

Court MAY allow W to give evid through video link or other means.

Plans, photographs, Models

If plan, photograph or model NOT in

1. Witness statement,
2. Affidavit
3. Expert’s report
4. Given orally at trial

Shall NOT be receivable at trial UNLESS party given NOTICE to other parties (unless court orders otherwise).

Where party intends to use the PPM as EVIDENCE OF ANY FACT = he MUST give notice no later than latest date for serving W/S.

Question 13

How much notice must parties give for plans, models, photographs want to be use.

Answer 13

Party MUST give 21 days before hearing if no W/S, he puts in evid solely to disprove an allegation made in a W/S. Where evid forms part of expert evid, he MUST give notice when expert’s report served.

Where party intends to use PPM FOR ANY OTHER REASON, he MUST give notice of 21 days before the hearing. Where party has given notice, he MUST give other party an opportunity to inspect it, + agree on its admission without further proof.

Question 14

Can evidence be excluded on hearsay?

Answer 14

Evid MUST NOT be excluded on grounds its hearsay.

Question 15

What must party proposing to adduce hearsay do?

WHat happens if he fails?

Answer 15

Party proposing to adduce hearsay MUST give notice of fact to other side + on request such particulars to the evid as reasonable and practicable, unless it falls outside the gen rule or parties agree/waive requirement. FAILURE = doesn’t affect admissibility but MAY be taken into account by court in costs and weight.

Where party adduces hearsay, other party MAY, with LEAVE, call that person as witness and cross-examine him on statement.

Question 16

What are the considerations for thinking about weight of hearsay?

Answer 16

Considerations relevant to weighing hearsay evid

Court MUST have regard to circumstances from which inference MAY be drawn:

1. Whether it would have been reasonable + practical to have produced the maker of original statement as W;
2. Whether original statement made contemporaneously
3. Whether evidence involves multiple hearsay
4. Whether any person involved had motive to conceal or misrepresent matter;
5. Whether original statement was an edited account or made in collaboration with another or for particular purpose.
6. Whether circumstance suggest attempt to prevent proper evaluation of its weight.
7. if NOTICE was give.

Question 17

Can hearsay be excluded?

Answer 17

Evid is NEVER excluded on ground of being hearsay. Evid NEVER inadmissible on ground its hearsay.

Question 18

What must the person wishing to adduce hearsay do?

Answer 18

MUST give NOTICE. MUST give reasons for not requiring maker to attend trial.

FAILURE TO GIVE NOTICE: doesn’t render it inadmissible: goes to weight + costs.

Question 19

If want to adduce hearsay, what must person do in W/S?

Answer 19

W/S MUST identify which parts of evid is within the knowledge of maker of statement + what is hearsay.

Question 20

Where the hearsay is contained in a W/S, when serving the W/S he must:

Answer 20

1) Inform parties that witness is not being called to give oral evidence; and
2) Give the reason why

In most cases, he must serve a notice –

1) Identifying the hearsay evidence;
2) State party proposes to rely on this; and
3) Give reasons why witness is not called

Question 21

The party proposing to rely on hearsay evidence must:

Answer 21

a) Serve the notice no later than the latest date for serving witness statements; and
b) If hearsay evidence is in a document, supply a copy who requested it.

Question 22

Circumstances in which notice of intention to rely on hearsay evidence is not required:

Answer 22

Duty to give notice of intention to rely on hearsay evidence doesn’t apply:

1) To evidence at hearings other than trials;
2) To an affidavit or W/S which is to be used at trial but which does not contain hearsay evidence;
3) To a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or
4) Where the requirement is excluded by a PD.

Question 23

Powers to call witness for cross-examination on hearsay evidence.

The court may, on application of other party, permit party to call the maker of the statement to be cross-examined on the contents of the statement.

App to cross examine must be made:

Answer 23

no more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served.

Question 24

What is a hearsay notice?

Answer 24

If hearsay is NOT contained in W/S, a hearsay notice MUST be served at same time as W/S exchanged, together with a copy

Question 25

What must a hearsay notice include?

Answer 25

This must:

1. Identify hearsay evidence
2. Statement reliance on hearsay proposed @ trial; and
3. Gives reason why W is not being called.

Admission of hearsay doesn’t automatically violate Art 6.

Question 26

Is multiple hearsya admissible?

Answer 26

yes

Question 27

Notice of intention to rely on hearsay = MUST give advance notice of hearsay. This doesn’t apply to:

Answer 27

1. To evidence at hearings other than trial;
2. To an affidavit or W/S used @ trial but doesn’t contain hearsay evidence.

Question 28

Giving notice by service W/S = Where party intends to rely on hearsay evid @ trial and either:

Answer 28

1. Evid is to be given by witness giving oral evidence; or
2. Evid contained in W/S of a person who is not being called to give evidence

This complies with notice requirements by service a W/S

Question 29

hEARSAY

Reasons for non-attendance =

Where W not being called, party relying on evid MUST, when W/S served:

Answer 29

1. Inform other parties W not being called; and
2. Give reasons why W not being called.

Question 30

Use of plans, photographs and models as evidence

Can these be receivable at trial?

Answer 30

Unless ordered otherwise, plans, photographs or models not in a W/S, affidavit or expert’s report or given orally or hearsay evidence, shall n_ot be receivable_ at trial unless notice has been given.

Question 31

Use of plans, photographs and models as evidence

Where party intends to use this evidence as eNextvidence of fact, he must:

Answer 31

he must give notice not later than the latest date for serving witness statements.

He must given at least 21 days before the hearing if –

a) No W/S; or
b) Intends to put in evidence solely in order to disprove an allegation made in a witness statement

BUT where evidence forms part of expert evidence, he must give notice when the expert’s report is served.

Question 32

Use of plans, photographs and models as evidence

Where evidence is produced to the court for any reason not part of factual or expert evidence, he must:

Answer 32

he must give at least 21 days before the hearing.

Where he gave notice, he must give the other party an opportunity to inspect it and to agree to its admission without further proof.

Question 33

How much weight will the court give to hearsay

Court MUST have regard to inferences reasonably drawn as to the RELIABILITY of evidence. Relevant factors:

Answer 33

1. Reasonable/practical to call maker
2. Made contemporaneously
3. Multiple hearsay
4. Motive to conceal or misrepresent
5. Edited account
6. Attempts to prevent proper evaluation of its weight.

Failure to give notice relevant to weight.

Question 34

What is a Witness summons?

Answer 34

W can be compelled to give oral evidence or produce specified docs, or both. Witness summons is not disclosure, so W cannot be summoned to produce a train of inquiry documents.

Issuing witness summons = administrative, form completed + fee paid + form sealed.

Question 35

For how long is a witness summons binding for?

Answer 35

Unless court gives permission = Witness summons BINDING only if served 7 days before trial.

Person served with summons MUST be offered money to cover travel expenses to + from court + compensation.

Disposition = notice 21 days before trial.

Question 36

How to challenge the credibility of Hearsay =

Answer 36

Where party:

1. Proposes to rely on hearsay; but
2. Doesn’t call person making original statement to give oral evidence; and
3. Another party withes to call evidence to attack credibility

Party MUST give notice of intention to party. Party MUST give notice 14 days after the day on which hearsay notice served.

Question 37

Can convictions be used in court?

Answer 37

Can use CONVICTIONS, but NOT acquittals PROVIDED conviction is relevant.

Question 38

How can one use convictions for trial?

Answer 38

Plead this in PoC + state how its relevant + must be a subsisting conviction + not overturned by appeal.

Question 39

What are the conditions for convictions to be adduced at trial?

Answer 39

• Conviction MUST be RELEVANT to issue + SUBSISTING.
• = Rebuttable presumption D commits offence, rebuttable = unless contrary proved.
• Conviction MUST be pleaded in PoC
• BURDEN OF PROOF =* BOP on D to show he didn’t commit offence
• REBUTTABLE PRESUMPTION* = D can rebut presumption by proving the contrary = “uphill task”.

Question 40

How to plead a conviction?

Answer 40

Details of previous conviction MUST be set in PoC. It MUST include:

1. Type of conviction, finding or adjudication + date;
2. Court or court-martial which made the conviction, finding or adjudication, and
3. Issue in the claim to which it relates.

Question 41

CONVICTIONS

Matters which must be specifically set out in the PoC if relied on

Answer 41

A C wishing to rely on evidence of a conviction of an offence MUST include in his PoC this and give details:

• Type of conviction, finding or adjudication and its date;
• The court; and
• Issue in the claim to which it relates.

Answer 42

A C wishing to rely on evidence of a conviction of an offence MUST include in his PoC this and give details:

• Type of conviction, finding or adjudication and its date;
• The court; and
• Issue in the claim to which it relates.