5 - The Course Of Evidence

Question 1

What is the judges role in a trial by jury?

Answer 1

• decide all questions concerning admissibility
• explain and enforce the general principles 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

What age must a witness take an oath or affirmation?

Answer 2

12 years of age or older.

Question 3

Examination of a witness:

Answer 3

S 84 Examination of witnesses
(1)
Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a)
a witness first gives evidence in chief; and
(b)
after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c)
after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2)
If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Question 4

Who can comment of the defendants right to silence?

Answer 4

Section 33:
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Question 5

Can an inference of guilt be inferred from a defendants right to silence?

Answer 5

Section 32
Fact-finder not to be invited to infer guilt from defendant’s silence before trial

Question 6

Define leading question:

Answer 6

Question that directly or indirectly suggests a particular answer to the question.

Question 7

Why do leading questions produce unreliable evidence?

Answer 7

• There is a natural tendency for people to agree with suggestions
  -Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to proceed.
• There is a danger leading questions will result in manipulation

Question 8

When are leading questions permitted?

Answer 8

Section 89 - leading questions in examination in chief and re-examination:

-relates to introductory or undisputed matters.
-the question is put with consent of all other parties
-the Judge exercises their discretion and allows it

Question 9

Likely examples of where leading questions may be allowed:

Answer 9

• To direct the witnesses attention to the subject of identification evidence (was that the car you saw?)

-To jog their memory (provided the answer to the central question is not suggested)

• very young people, or people who don’t speak English well.

-Where a witness is declared hostile.

Question 10

Can a witness refresh their memory in court?

Answer 10

Section 90(5)
Yes - with prior leave from the judge, consult a document made or adopted at a time when their memory was fresh.

This document must be shown to every party in the proceeding.

Question 11

Refreshing memory out of court

Answer 11

The documents used to refresh their memory, must relate to matters which are within their own knowledge.

Question 12

What is the previous consistent statement rule?

Answer 12

35Previous consistent statements rule
(1)A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2)A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3)A previous statement of a witness that is consistent with the witness’s evidence is admissible if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)the statement provides the court with information that the witness is unable to recall.

Question 13

What are the three exceptions to the general prohibition on previous consistent statements? 35(2)

Answer 13

1) It is necessary to respond to a challenge of the witnesses veracity

2) It’s integral to the matter before the court

3) to merely show a complaint was made

Question 14

Define Hostile Witness:

Answer 14

• Exhibits, or appears to exhibit, a lack of veracity when giving evidences unfavourable to the party who called the witness on a matter 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
• Refuses to answer questions or withholds evidence

Question 15

What does it mean if a witness is declared hostile?

Answer 15

The party calling them may cross examine them and to the extend the judge considers necessary:

• ask leading questions
• ask questions designed to probe the accuracy of memory and perception
  -asking questions as to prior consistent statements
  -other challenges of veracity including evidence from other witnesses

Question 16

Unfavourable vs Hostile

Answer 16

Unfavourable may simply fail to come to brief.

They may not remember or accidentally provide an inconsistent account

Question 17

Two purposes of cross examination:

Answer 17

1) Elicit information supporting the case of the party conducting the cross-examination

2) to challenge the accuracy of the testimony given in evidence in chief

Question 18

Who can cross examine a witness?

Answer 18

All parties other than that who called the witness.

Included co-defendants cross examination of the other defendants witnesses

Unless declared hostile - calling party can cross examine

Question 19

What are the cross examination duties?

Section 92

Answer 19

• when a party is intending to call evidence that will contradict the EIC of an opposing party, there is an obligation to put that contradictory material to the witness during cross examination so that they have an opportunity to comment.

The matter must be significant and relevant

If not done the following can happen:

-Little weight will be added to the evidence if this is not done

or they may recall the witness for the purpose of rebuttal.

May exclude the contradictory evidence

Question 20

Unacceptable questions:

Answer 20

If a judge deems so, they may disallow, or direct a witness they are not obligated to answer - any questions J considers improper, unfair, misleading, needlessly repetitive or expressed in a matter too complicated for the witness.

Question 21

Cross examination of previous statements of witnesses:

S96

Answer 21

Includes
- written witness statements
-oral statements (eg recorded on a police job sheet)

A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.
(2)
If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement,—
(a)
the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and
(b)
the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony.
(3)
If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a)
the defendant’s right to make a no-case application; and
(b)
the defendant’s rights in relation to the order of addressing the court.

Question 22

Evidence in rebuttal - what situations may this be allowed?

Answer 22

This is evidence after the completion of their own case:
Maybe given to the prosecution:
-purely formal matter
-Relates to a matter arising out of the conduct of the defence - could not have reasonably foreseen
-was not available or admissible before the case was closed
-is required to be admitted in the interest of justice

Permission for a Defendant:
If the interest of Justice require

Evidence in rebuttal admissible up until the time the jury retires

Question 23

When can a witness be recalled?

Answer 23

Judge determines its in the interest of justice

Question 24

Judicial warnings;
S122 - S127

Answer 24

S122 - evidence may be unreliable
S123 - directions about certain ways of giving evidence (no adverse effects from alternative ways)
S124 - warnings about lies
S125 - directions about children’s evidence
S126- warnings about identification evidence
S127 - delayed complaints or failure to complain in sexual cases

Question 25

What can a Judge do with evidence that may be unreliable?

Answer 25

122 Judicial directions about evidence which may be unreliable
(1)
If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a)
whether to accept the evidence:
(b)
the weight to be given to the evidence.
(2)
In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a)
hearsay evidence:
(b)
evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c)
evidence given by 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.
(3)
In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a)
if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b)
if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4)
It is not necessary for a Judge to use a particular form of words in giving the warning.
(5)
If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6)
This section does not affect any other power of the Judge to warn or inform the jury.

Question 26

Situations Judge will consider warning for the reliability of evidence?

122(2)

Answer 26

hearsay evidence:
(b)
evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c)
evidence given by 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 27

When may warnings about lies be given?

Answer 27

No warning needs to be given unless:

• Judge is of the opinion the jury may place undue weight on the evidence of a defendants lie

-The Defendant requests a warning

The warning should give direction that:
-the jury are satisfied the D did lie
-People lie for various reasons and
- the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.

Question 28

What directions should / will the judge give about evidence from children?

Answer 28

S125 provided that children’s evidence should be treated in the same way as adults, thus it prohibits:

• judge from warning about the absence of corroboration where a warning would not be given in the case of an adult complainant.
• any direction or comment that there is a need to scrutinise children’s evidence with special care or they children have a tendency to invent or distort.