5. The Course of Evidence

Question 1

Judges role in trial by jury

Answer 1

• Decide all questions concerning the admissibility of evidence
• Explain and enforce the general principle of law applying to the point at issue
• Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 2

Oaths and affirmation

Answer 2

Witnesses under the age of 12 must
*Be informed by the judge of the importance’s of telling the truth and not telling lies and
* After being given that information, make a promise to tell the truth, before giving evidence

Witnesses who are 12 years and older must take an oath or affirmation before giving evidence

Question 3

Commenting on Defendants right of silence

Answer 3

No person other than the Defendant, Defendants counsel or Judge may comment on the fact the defendant did not give evidence at his or her trial

Question 4

The prohibition on leading questions

Answer 4

Leading questions is based on the belief that it will produce unreliable evidence for the following reasons
* Natural tendency for people to agree with suggestions put to them by saying yes, even if those suggestions do not accord with their own view of what happened
* Counsel asking leading questions of their own witnesses can more easily elicit the answer which they wish to receive, reducing spontaneity and genuineness of the testimony
* Danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise between counsel and the witness.

Question 5

When leading questions are permitted

Answer 5

• Question relates to introductory or undisputed matters OR
• Question is put with the consent of all parties; OR
• Judge in exercise of the Judges discretion allows the question

Question 6

Refreshing memory in court

Answer 6

• The leave of the judge must be obtained
• The document must be shown to every other party in the proceedings
• s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”

Question 7

Previous consistent statements

Answer 7

s35
Previous consistent statements rules
a. responds to a challenge that will be or has been made to the witness veracity OR
accuracy, based on previous inconsistent statement of the witness OR
on a claim of invention on the part of the witness OR
b. forms an integral part of the events before the court; OR
c. consists of the mere fact that a complaint has been made in a criminal case

Question 8

Hostile witnesses defined

Answer 8

• Exhibits or appears to exhibit a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
• Refuses to answer questions or deliberately withholds evidence

Question 9

Hostile Witness s94

Answer 9

• Asking leading questions
• Asking questions designed to probe the accuracy of memory and perception
• Asking questions as to prior inconsistent statements, and
• Other challenges to veracity, including evidence from other witnesses

Question 10

Purpose of cross - examination

Answer 10

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

Question 11

Unacceptable questions

Answer 11

s85
a. age or maturity of the witness and
b. any physical, intellectual, psychological, or psychiatric impairment of the witness and
c. the linguistic or cultural background or religious beliefs of the witness; and
d. the nature of the proceedings; and
e. in the case of a hypothetical questions, whether the hypothesis has been or will be proved by other evidence in the proceedings.

Question 12

Limits on re-examination

Answer 12

May re-examine a witness for the purpose of clarifying or qualifying any issues raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge

Question 13

Evidence in rebuttal

Answer 13

• Relates to a purely formal matter
• Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen
• Was not available or admissible before the prosecutions case was closed, or
• Is required to be admitted in the interest of justice for any other reason.

Question 14

Warning that evidence may be unreliable

Answer 14

a. hearsay evidence
b. evidence of a statement by the defendant, it that evidence is the only evidence implicating the defendant
c. evidence given by the a witness who may have a motive to give false evidence that is prejudicial to a defendant
d. evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention
e. evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously

Question 15

Directions about evidence given by children

Answer 15

• The judge from giving warnings about the absence of corroborating where a warning would have been given in the case of an adult complainant
• Any direction or a comment that there isa need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort

Question 16

OC Case giving evidence

Answer 16

Address Judge as Your Honour or Sir/Ma’am

Question 17

Referring to your notebook

Answer 17

• Ask court permission
• Introduce the material properly
• Remember that the defence and the jury are entitled to view your notes, so seal off other entries
• Remember that you are only allowed to refresh your memory - Unable to read the notes unless you have permission