5. The Course of Evidence

Question 1

What is the age in a person is given the oath or affirmation in Court?

Answer 1

If you are 12 or older then the oath or affirmation is sworn.

Question 2

What happens when a person is under the age of 12 when they are sworn by the Court?

Answer 2

They make a promise after being informed by the judge of the importance of telling the truth and not telling lies.

Question 3

What section covers examination of witnesses?

And how are they examined?

Answer 3

Section 84 provides the following:

1) - a witness is called first and gives evidence in chief and
- after giving evidence then they may be cross examined by all other parties other than the party who has called them, once they have been cross examined then they can be reexamined.

2) IF a witness has provided an affidavit then that is evidence in chief.

Question 4

What is the unusual sequence of a trial?

Answer 4

1 - Jury are empanelled - Judge brief opening
2 - Crown opening address
3 - Calls witnesses
4 - Defence opens its case
5 - Defence presents case
6 - Crown concludes with closing address
7 - Defence makes a closing address
8 - Finally Judge sums up to the jury before it reties to
consider its verdict.

Question 5

In what circumstances does the sequence vary?

Answer 5

When the defence do not call any witnesses.

Question 6

What is a “VIEW”?

Answer 6

A view may be held where an inspection of a place or thing that is not in the courtroom. This is up to the Judge if one should be held.

All parties are entitled to attend. Information obtained at the View should be regarded as evidence.

Reconstruction or demonstration can be done however only if it is relevant and their probative value outweighs the risk of unfair prejudicial effect.

Question 7

Commenting on a defendant’s right of silence.

Who can comment on his silence?

Answer 7

If the defendant chooses right to silence then there is a restriction on comment made about silence.

Only a the defendant or his counsel or Judge may comment on the defendant not giving evidence.

Question 8

The Act preserves an important aspect that the right of silence. What section covers this?

Answer 8

Section 32 outlines that NO PERSON may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, or disclose a defence before trial.

Question 9

Evidence in Chief

What is the purpose of evidence in chief?

Answer 9

It is to elicit the testimony that supports the case of the party calling the witness.

Question 10

Prohibition on leading questions

What section covers leading questions?

Answer 10

Section 89 - the general rule is that leading questions should not be asked during evidence in chief or re-examination.

Question 11

What is the definition of leading questions?

Answer 11

Leading question is one that directly or indirectly suggests a particular answer to the question (s4)

Question 12

What is the belief behind the prohibition of leading questions?

Answer 12

Because it produces unreliable evidence for the following reasons:

• A natural tendency of people to answer YES or agree with suggestions put to them. Even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through through collusion, conscious or otherwise between counsel and the witnesses.

Question 13

What is the goal of evidence in chief?

Answer 13

It is to draw out the witness’s own recollections and to permit the trier of fact to judge the quality of the witness’s testimony. It is important that the words come from the witness not the questioner.

Question 14

Under section 89 when are leading questions permitted?

Answer 14

No leading questions can be put to a witness in examination in chief or re-examination unless

sec 89(1)

a) the question relates to introductory or undisputed matters OR
b) the question is put with the consent of all other parties OR
c) the Judge, in exercise of the Judge’s discretion allows the question.

Question 15

What examples of questions that may be allowed as leading under section 89(1)(c)?

Answer 15

• Direct a witness’s attention to the subject of identification evidence - eg was that the car you saw?
• Surrounding circumstances in order to jog memory about a fact in issue or event provided that the answer is not suggested in the question.
• To assist counsel in eliciting the evidence in chief of very young people. People who have difficulty in speaking english.
• Where the witness has been declared hostile

Question 16

Refreshing memory - what section applies?

Answer 16

Section 90(5)

A witness may refer to statement made at the time to refresh memory however leave or permission must be sought.

Question 17

What must be done in order to refer to a statement to refresh memory?

Answer 17

• Permission from Judge
• Documents shown to all parties
• the Document had to be made or adopted by the witness at the time when his or her memory was fresh.

Question 18

Previous Consistent Statements - What is the general rule around them?

Answer 18

They are generally inadmissible because repetition of an allegation does not increase its truthfulness. It can give a greater impact which is unnecessary weight to it.

Question 19

What section governs previous consistent statements?

And what does it say in sub 1?

Answer 19

Section 35

Subsection 1 stipulates a previous statement of a witness with the witness’s evidence is not admissible UNLESS subsection 2 applies to the statement.

Question 20

What makes the previous statement that is consistent with the witness’s evidence is admissible?

Answer 20

Under section 35(2)

a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of invention on the part of the witness.
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 21

What was found in R v Hart (Previous Consistent statement)

What is the CONCEPT OF NECESSITY?

Answer 21

In order to adduce a previous statement there must be a challenge in relation to inaccuracy or veracity in a qualifying respect…It must have been suggested that the witness has been untruthful or has invented their testimony.

Next it must be shown that it is necessary to admit the statement to do justice to the witness’s testimony in Court in light of an attack on that testimony.

The concept of necessity looks at the overall interests of justice, including fairness to the witness.

Question 22

Hostile witness - when does a witness become hostile?

What section permits the party calling the witness to cross examined?

Answer 22

If a witness fails to give evidence as expected to, leave is sought from the judge to declare that witness as hostile.

This will then allow that party to bypass section 84 and – ask leading questions

• probe at the accuracy of memory and perception
• asking questions as to prior inconsistent statements
• and other challenges to veracity, including evidence from other witnesses (provided that any evidence is substantially helpful in assessing the witness’s veracity)

Question 23

What was found in R v Vagaia (Hostile witness)

Answer 23

There are no rules to a party being restricted from calling a witness who is known to be hostile to that party.

Question 24

What defines a hostile witness?

Answer 24

Section 4 - means

• exhibits or appears a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge about. OR
• gives evidence that is inconsistent with a previous statement who now exhibits or appears to exhibit an intention to be unhelpful to the party that called the witness.
• Refuses to answer questions or deliberately withholds evidence.

Question 25

Is it a question of law in relation to hostile witness?

Answer 25

Yes, it will be for the Judge to decide on application made by the party.

Question 26

Is there a distinction between unfavourable and hostile witness?

Answer 26

Yes - a clear distinction has to be drawn between an unfavorable and hostile witness.

A witness who simply doesn’t come up to brief is an unfavorable to the party who called the witness this doesn’t mean they are hostile.

It doesn’t justify it as hostile because they have suffered a loss of memory or is inconsistent with other evidence.

Question 27

Cross Examination

What is the purpose for cross examination?

Answer 27

There are two:

1 - To elicit information to support the case of a party conducting the cross.

2- To challenge the accuracy of the testimony given in evidence in chief

Question 28

Who can cross examine?

Answer 28

A party who did not call the witness.

Question 29

Can a party for co-defendants cross examine the other defendants witnesses?

Answer 29

Yes

Question 30

For cross-examination what sections is it subject to?

Answer 30

Section 92 - duties

Section 95 - limits on cross examination by parties in person

Section 85 - the prohibition on unacceptable questions

Question 31

Is there a limit to asking leading question by a co-defendant’s party when cross-examining?

Answer 31

Yes because they have the same interests in the proceedings the Judge can limit or restrict the questioning in the interest of justice to prevent a SHAM interrogation where there are a number of defendants running a co-ordinated defence. Section 93

Question 32

The duty to put the case - what must be done for contradictory evidence in chief?

Answer 32

When a party is intending to call a witness that will contradict evidence in chief there is an obligation for that party to put the contradiction to that witness during cross examination so he or she has the opportunity to explain it.

This has been codified in section 92 Evidence Act 2006

Question 33

What is the section for cross examination?

And what does subsection 1 outline?

Answer 33

Section 92

(1) - A party MUST cross examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness IF the witness cold reasonably be expected to be in a position to give admissible evidence on those matters.

Question 34

What does subsection 2 outline in the event that a party doesn’t comply with section 92?

Answer 34

(2) If a party fails to comply with this section the Judge may
a) grant permission for the witness to be recalled and questioned about the contradictory evidence (RECALL WITNESS)
b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness may not been able to explain the contradiction, was not questioned about the evidence OR
c) EXCLUDE the contradictory evidence OR
d) make any other order that the judge considers JUST.

Question 35

What situation will activate the duty to cross examine?

Answer 35

• cross examination deals with significant matters in the proceedings
• the matters are RELEVANT and IN ISSUE in the proceedings
• the matters CONTRADICT the EVIDENCE of WITNESS and
• The witness may reasonably be expected to be in a position to give admissible evidence on those matters

Question 36

Section 85 - Unacceptable questions - Who decides on this?

Answer 36

The Judge may disallow or direct a witness not to answer a question which is considered to be inappropriate, unfair, misleading, needlessly repetitive or language to complicated to understand for the witness.

Question 37

What list of things that the Judge may have regard to to make a decision on unacceptable questions?

Answer 37

A - the age or maturity of the witness and
B - any physical intellectual, psychological, psychiatric impairment
C - linguistic / CULTURAL background or religous beliefs and
D - Da nature of the proceedings

E - hypothetical questions - hypothesis can be proved by other evidence.

Question 38

In relation to cross-examination as prior inconsistent statements, what section governs this?

What are included as these statements?

Answer 38

Section 96

• written witness statements
• oral statements

Question 39

In relation to section 96. Does a cross examination party have to disclose the content in statement they made?

Answer 39

No as long as the time, place and other circumstances concerning the making of the statement are adequately identified to the witness.

Question 40

What happens if a witness does not accept their previous statement? (section 96)

Answer 40

Subsection 2

The party wishes to prove that the witness did make the statement

• the party must show the statement to the witness if it is in writing if it is in writing, or disclose its contents to the witness if the statement was not in writing AND
• the witness MUST be given the opportunity to deny it, or give an explanation for any inconsistency between the statement and the testimony.

Question 41

What is covered in section 93(3)?

Answer 41

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 no-case application and
b) the defendant’s rights in relation to the order of addressing the court.

Question 42

Re-examination -

Limits on re-examination?

Answer 42

After a witness has been cross-examined the party who called the witness may re-examined for the purpose of clarifying or qualifying any issue raised during the cross.

No questions may be asked on any new topics unless permitted by the Judge.

This then can be cross examined.

Question 43

Evidence in Rebuttal and Recalling Witnesses

When can evidence in rebuttal be introduced?

Answer 43

At the completion of the party’s case and leave has to be sought from the court to do so.

Question 44

What grounds allows rebuttal evidence?

Answer 44

• when it 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 (the most common ground for leave to be granted)
• was not available or admissible before the prosecution’s case was closed, OR
• is required to be admitted in the interests of justice for any other reason.

Permission may be granted to the defendant if the interest of justice require the further evidence to be admitted.

Evidence in rebuttal may be permissible up to the time when the jury retires (or in judge alone trials, at any time until judgement is delivered).

Question 45

Recalling witnesses - what section allows the Judge to recall a witness who has given evidence?

Answer 45

Section 99 - allows a Judge to do so when it is considered that it is in the interest of justice to do so.

Question 46

Judicial Directions and Warnings

What circumstances would have a Judge direct the jury that evidence should be scrutinised with particular care OR should be given less weight?

Answer 46

Section 122 - judicial warning evidence may be unreliable

Section 123 - judicial direction about certain ways of giving evidence

Section 124 - judicial warning about lies

Section 125 - Judicial directions about children’s evidence

Section 126 - judicial warning about identification evidence

Section 127 - delayed complaints or failure to complain in sexual cases.

Question 47

Warning about unreliable evidence - What can a Judge outline to the Jury under subsection 1

Answer 47

If the judge is of the opinion that the evidence given is admissible but nevertheless its unreliable

May

• warn the jury the need for caution in deciding
  a) whether to accept the evidence OR
  b) the weight to be given to the evidence

Question 48

In a criminal proceeding tried with a jury the Judge MUST consider whether to give a warning under subsection 1 whenever the evidence is given?

Answer 48

a - Hearsay

b - evidence of a statement by the defendant if that evidence is the ONLY evidence

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 in PRISON
e) evidence of conduct of the defendant if it was more than 10 years previously

Question 49

Under section 122(3) can a party request for the Judge to warn?

Answer 49

Yes a party can but the Judge need not comply if he/she considers -

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.

Question 50

Is there particular words that the Judge has to use when giving the warning under section 122

Answer 50

No there are no particular words required.

Question 51

What happens when there is no jury under section 22?

Answer 51

Subsection 5 - 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

Question 52

The a warning under section 122 affect any other power for a Judge to warn or inform the jury?

Answer 52

No, subsection 6 stipulates that section 122 doesn’t affect any other power of the Judge to warn or inform the jury.

Question 53

Direction about how evidence may be given - What section covers the judge to direct the jury where the witness has given evidence in an alternative way?

Answer 53

Section 123 allows the judge to direct the jury that law makes special provisions around the alternative way of giving evidence.

Because of this there should be no adverse inference taken towards the defendant where a witness has offered evidence in an alternative way (s105) - where a witness has not been allowed to be cross examined (section 95) or witness offers evidence in anonymity order (s112)

Question 54

Warnings about lies

What section covers evidence suggesting that the defendant lied before or during the proceedings?

Answer 54

Section 124

This provides instructions for the jury to decide whether the defendant lied.

The inference should be drawn by the jury. A proven lie by the defendant about a material matter can be taken into account as circumstantial evidence of guilt.

NO WARNING NEEDS to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie. This may have the Defendant request for a warning in most cases it is granted.

Question 55

What directions should be given when the Judge warns the jury about defendant’s lie?

Answer 55

• Satisfied that the defendant 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

Question 56

What directions should be given for evidence given by children? Section 125

Answer 56

PROHIBITS the following:

• The Judge is prohibited from giving a warning about the absence of corroborated evidence
• any direction or a comment that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.

Question 57

In additional to the general prohibition

Answer 57

This prohibition does not limit the judge warning or informing the jury about children evidence in accordance with regulations under the Act. A priority will take priority over section 125

Question 58

What other law looks at special provision around children evidence?

Answer 58

Regulation 49 - of the Evidence Regulation Act 2007

This regulation focus the judge or jury around how the evidence was obtained for a child under 6 years rather than the tendency of children to invent or distort.

Question 59

PRACTICAL MATTERS for NOT GUILTY HEARINGS

In relation to witnesses what should the OC do?

Answer 59

• Advise witness of time,date place of trial and the exhibits to be produced at court.
• Check if they have given evidence before. IF not inform them of the procedure/
• Check if they have a copy of statement - they read it to refresh their memory.
• Ensure witness remain within call if they are excluded from the Courtroom
• Check juror list to see if the witnesses know them.
• Warn the witness that they are not to mix with or speak with jurors
• Advise the witnesses about witness expenses

Question 60

Things that should do as OC in general?

Answer 60

• Ensure Look, stand and speak correctly
• Identify the defendant
• Locate your witnesses and help them as required.
• Do not mix or gossip with the jurors or members of defence

Question 61

O/C when giving evidence?

Answer 61

• Take care when answering questions and answer the question being asked
• Say you don’t know don’t guess
• Do be flippant
• Address the Judge as Your Honor / Sir or Ma’am
• Address the prosecutor or defence counsel as Sir / Ma’am
• Advise the judge of any mistakes as soon as possible or let the prosecutor know if you have finished giving evidence

Question 62

Progress Test 5

What is the role of a Judge in a jury?

Answer 62

When the presiding Judge over a trial jury his or her role is to:

1 - decide all questions concerning the admissibility of evidence

2 - determine whether there is any evidence that is fit to be submitted to the jury for its consideration.

3. Explain and enforce the general principles of law applying to the point at issue
4. Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 63

Progress Test 5

Define leading question under section 4 of the Evidence Act

Answer 63

A question that directly or indirectly suggests a particular answer to a question.

Question 64

Progress Test 5

What is the purpose of cross-examination?

Answer 64

The purpose is to:

• Elicit information to support a case of the party conducting the cross-examination OR
• to Challenge the accuracy of the testimony given in evidence in chief, for example by casting doubt on the witness’s veracity, or eliciting contradictory testimony