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 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

During the trial itself, the judges function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility

Question 2

Oaths and affirmations, age and requirements

What advice would you give to the parent of an 11y/o witness?

Answer 2

Witnesses of or over the age of 12 must take an oath or affirmation before giving evidence.

Witnesses under 12 must:

• be informed by the judge of the importance of telling the truth and not telling lies and
• after being given that information, make a promise to tell the truth, before giving evidence

Question 3

Who may comment on the defendants failure to give or offer evidence?

Answer 3

In a criminal proceeding, no person other than the defendant or the defendants counsel or the Judge, may comment on the fact that the defendant did not give evidence at his or her trial.

Question 4

What is the purpose of evidence in chief?

Answer 4

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

Question 5

Definition of a leading question

Answer 5

A leading question as one that directly or indirectly suggests a particular answer to the question

Question 6

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons…

Answer 6

• There is a natural tendency for people to agree with suggestions put to them by saying “Yes”, 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 collusion, conscious or otherwise, between counsel and
  the witness

Question 7

Leading questions may be allowed under 89(1)(c) in the following circumstances…

Answer 7

• to direct the witnesses attention to the subject of identification evidence (for example, was that the car you saw?)
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to central question is not suggested in the question
• To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence.
• Where the witness has been declared hostile

Question 8

Witnesses refreshing their memory outside of court

Answer 8

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they have made some months before

Question 9

Previous consistent statements rule

Answer 9

(1)
A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2)
A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
(a)
responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a 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 10

3 exceptions to the general prohibition on previous consistent statements:

Answer 10

A previous consistent statement will only be admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, integral to the matters before the court or the mere fact a complaint was made. Any suggestion in cross-examination that the witness is lying or mistaken should be sufficient. These challenges must be based on either a previous inconsistent statement or a claim of recent invention

Question 11

Cross examining hostile witnesses, what can be asked of them

Answer 11

• leading questions
• 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 (provided that any evidence offered is substantially helpful in assessing the witness’s veracity)

Question 12

Definition of a hostile witness

Answer 12

hostile, in relation to a witness, means that the witness—
(a)
exhibits, or appears to exhibit, 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; or
(b)
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
(c)
refuses to answer questions or deliberately withholds evidence

Question 13

Two purposes of cross-examination

Answer 13

1) to 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony)

Question 14

Types of questions that the Judge may consider as unacceptable

Answer 14

• Improper
• Unfair
• Misleading
• needlessly repetitive
• expressed in language that is too complicated for the witness to understand

Question 15

When considering if a question is unacceptable, the Judge may consider…

Answer 15

(a)
the 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 proceeding; and
(e)
in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Question 16

Limits on re-examination

Answer 16

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the Judge

Question 17

Evidence in rebuttal. Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence..

Answer 17

• 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 prosecutions case was closed or
• is required to be admitted in the interests of justice for any other reason

Question 18

Giving evidence as O/C Case

Answer 18

• Take care that you answer the question being asked
• Say you do not know, rather than guess
• Do not be flippant
• Address the Judge as “Your Honour” or “Sir/Ma’am”