5. Course of evidence

Question 1

What is the role of a judge in a trial by jury?

Answer 1

• Decide all questions concerning the admissability of evidence
• Explain and enforce the general principles of law
• To instruct the jury of the rulels of law

Question 2

What are the features of the judicial (adversarial( system

Answer 2

• The facts of the case and evidence relevant to the determination of those facts, emerge by questions put to the witnesses by the prosecution and defence
• It is up to the prosecution and defence what witnesses are called and what order they go in.
• Each party has the right to test the testimony of each witnessed called by the opposing pp-arty by way of cross examination.
• The judges role is to ensure that all evidenis produceed and adhere to the established rules
• The judge and jury are no generally entiltled to go beyond the evidence that is put before them, ie they cant do their own investigations.
• On the other hand the judge may ask questions of the witness if they believe it is in the interest of justice.
• The defendant is not compelleable to give evidence and has the right to silence.
• Some facts maybe given as judicially noticed if they are so well accepted and known that they can not reasonable be questioned.

Question 3

Discuss who and who doesnt have to give an oath

Answer 3

• any person over the age of 122 must give an oath or affirmation.
• If the person is under the age of 12 or the person is of age and the judge deems that the person is impaired by some physical or mental conndition then the judge must inform them of the following:
• the importance of telling the truth and not lying and
• After been given that information, get them to make a promise to tell the truth

Question 4

Discuss what is in Section 84 of EA06 in relation to the examination of witnesses

Answer 4

Unless the judge directs otherwise:

• Witness gives evidence in chief
• witness is then cross examined by all partied other then the calling party of that witness
• witness can then be re examined if it for the purpose of clarifying something brought up by the opposing party in cross examination.

Question 5

List the sequence of a jury trial

Answer 5

• the jury is empanelled and a foreperson is nomination. the judge then informs the jury of their duties and to keep an open mind
• the Crown then make an opening address, outlining the charge, the burdon and standards of proof and the summary case and evidence against the defendant.
• the defence then does their opening statement
• Following this the crown then calls its witnesses and presents its case with the defence being allowed to cross exam those witness.
• the defence if they choose call their witnesses who in turn can then be cross examined by the crown.
• the crown then conducts their closing address again summing up all the facts, and evidence put before them during the trial
• the defence then does the same by having their closing address.
• the judge then sums up to the jury who then retire for deliberations.

Question 6

Discuss the defendant giving evidence in chief.

Answer 6

The defendant is a trial does not have to give evidence and no other person other then the defendant, defendants coounsel or the judge may comment on the fact that the defendant did not give evidence at his trial.

Basically the judge if they decide to comment on why the defendant did not give evidence has to inform the jury that the defendant has the right not to give evidence and that they should not infere the defendant guilt because they didnt want to give evidence.

Question 7

What is purpose of evidence in chief?

Answer 7

the pupose of evidence in chief is to elicit testimony that supports the case of the party calling that witness

Question 8

What is a leading question??

Answer 8

Is a question that tends to directly or indirectly suggest a particular answer from the question

Question 9

Why are leading questions prohibited?

Answer 9

• People have to tendency to agree to suggestions put to them by saying yes
• Counsel asking leading questions of their own witnesses are more likely to elicit an answer they wish to receive.
• There is a danger that a leading question can manipulate evidence.

Question 10

When are leading questions allowed to be asked?

Answer 10

• When the questions have to to with introductory or undisputed facts
• The questions are put with the consent of all parties.
• with the discreetion of the judge who alllows the question

Question 11

Under section 89(1)(c) when will a judge allow a leading question

Answer 11

• when it is for the purposes of jogging someones memorey
• For the identification purposes.
• to assist counsel from eliciting evidence in chief from a very yooung person or from someone with limitedd english or limited intellectual ability
• the witness has been declared hostile.

Question 12

Discuss what a hostile witness is as defined under section 4

Answer 12

A hostile witness is a witness who:

• exhibits or appears to exhibit the lack of veracity when giving evidence unfavourable to the party that called them on matters about which the reasonable supposed to know.
• gives evidence that is inconsistant with a statement mad by that witness that exhibits or appears to exhibit and intention to be unhelpful.
• Refuses to answer or deliberalty withhold evidence.

Question 13

Hostile vs unfavourable

Answer 13

This will be a matter for the judge to decide whether the witness is being hostile.

Just because a witness tells inconsistant evidence does not mean they are hostile.

Question 14

Discuss the duties of a cross examiniation

Answer 14

A party must cross examine a witness on significant issues that are relevant and are in issue and that contradict the evidence of the witness

Question 15

What is the purpose of cross examination

Answer 15

• To elicit information supporting the case of the party conducting the cross examination
• To challenge the accuracy of the testimony given in evidence in chief.

Question 16

What are the duties for cross examination (4)

Answer 16

• The cross examination deals with significant matter
• The matters are relevant and in issue
• The matters contradict the evidence given by the witness
• The witness may be reasonable be expected to be in a position to give evidence on the matters.

Question 17

Discuss what an unacceptable question maybe and List 4 unacceptable questions

Answer 17

A judge may deem a question unacceptable and inform the witness they do not have to answer if the question is unfair, improper, misleading or repeatative or in a form the witness does not understand.

The judge may consider the following related questions unacceptable

• The age and maturity of the witness.
• Linguistic or cultural background.
• the nature of the proceedings.
• Hypothetical questions.

Question 18

Discuss the perimeters/exceptions around being cross examined on previous statedments.

Answer 18

a party who cross exams a witness may question them about a previous statement and does not have to produce the statement to other parties or the witness if the cross examiner outlines the time date and circumstance around the questions.

If the witness expressly admits that they did not make the statement and the party wants to prove that they did then they must produce the statement, whether written or oral to that witness and the witness must be given time to explain any inconsistencies.

Question 19

Discuss evidence in rebuttal after the completion of a case

Answer 19

Evidence that is called affter the completion of either parties case, in order to rebut something arising during the trial can only be admitted by leave from the court.

Leave maybe granted on the following grounds

_Purely for formal matters.

• Relaters to matter arrising from the conduct of the defence on grounds that could not reasonbale be foreseen.
• Evidence that was not available at the time before the prosecution closed its case.
• Is required to be admitted in the interests of justice.

Question 20

List the six circumstnaces that a judge may give a warning to the jury ab out certain evidence

Answer 20

• Judicial warning that evidence is unreliable
• Judicial direction about the way evidecne is given
• Judicail warning about lies
• Judicial direction about childrens evidence
• Judicial warning about indentification evidence
• Delayed complaints or failure to complain about sexual cases

Question 21

List four reasons a judge may offer a judical warning to unreliable evidence

Answer 21

• That the evidence is hearsay evidence
• Evidence given by the defendant if is the only evidence that implicates the defendant.
• Evidence given by a witness who may have amotive to give false evidence against the defendant
• Evidence about the defendants conduct if the conducted occurred more then 10 years ago

Question 22

Discuss the things a judge may warn a jury about lies told by the defendant

Answer 22

• The jury needs to be satisfied that the defendant did lie before they use the evidence
• That people lie for all kinds of reasons
• They should jump to the conclusion of guilt on the part oof the defendant just because they lied.

Question 23

Discuss some of the things an OC of a case should advise a witness if it goes to trial.

Answer 23

• Inform them of the time, date and place of the trial
• check to see if they have given evidence before and inform them of the proceedures, ie do a visit and show them the court room and advise where to stand and how to address members of the court
• If a witness has made a statement that they are allowed to review before given evidence but they are not allowed to refer to it during evidence in chief.
• If given evidence, if they dont know or cant remember an answer to a question, say i do not know.
• Ensure witness remain close to the court room if they have been ordered to stay outside the court and advise to to mingle with members of the jury.
• Get a list of the jurors and see if they know any of the jurors.
• Advise witnesses of witness expensies.

Question 24

Discuss what you should consider when giving evidence

Answer 24

• Take care to answer the question that is being asked of you.
• Dont be flippant
• refer to the judge as you honour or sir/madam
• Refer to the prosecutor and defence as sir/madam
• Advise the judge of any mistakes you have made ASAP or advise the prosecutor if you have finished giving evidence.

Question 25

Discuss refering to your notebook

Answer 25

• Must ask permission from the court
• Introduce the material properly, ie at this time i arrived to the scene and …. or at this time i begun interviewing the defendant after giving his BOR and wrote their response in my note book
• Remember the judge and jury can see your n otebook so make sure everything from previous entries is sealed off.

Question 26

What is the role of the judge in a trial by jury?

Answer 26

• Decide all question on the admissability of evidence
• Explain and enforce the general principles of law
• Instruct the jury to the rules of law

Question 27

Define leading question under section 4 of EA 06

Answer 27

A leading question is a question that directly or indirectly suggestion a particular answer from the question.

Question 28

What is the purpose of cross examination

Answer 28

The purpose of cross examination is to elicit information to supports the case of the party conducting the cross examination.

And to challange the acurracy of the witness varecity or eliciting contradictory testimony.