5. The Course of Law

Question 1

What is the difference in oaths/affirmations for those >12 vs 12 and under?

Answer 1

• > 12 - must take an oath or affirmation
• 12 or under - must be informed by the judge of the importance of telling the truth and not telling lies, and must make a promise to tell the truth.

Question 2

what is the purpose of evidence in chief?

Answer 2

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

Question 3

what is the rule on leading questions and when can they be used?

Answer 3

leading questions may not be asked during evidence in chief or re-examination but are permitted in cross-examination.

Question 4

what is the definition of a leading question?

Answer 4

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

Question 5

how may a witness refresh their memory out of court?

Answer 5

by referencing statements which they may have made before. The requirement is that the document relates to matters which are within the witnesses own knowledge.

Question 6

what must be done if a witness wishes to consult a document while giving evidence?

Answer 6

• leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• the document must have been made or adopted by a witness at a time when their memory was fresh.

Question 7

if an application is granted to declare a witness a “hostile witness”, what can then be done?

Answer 7

• asked leading questions
• questions as to prior inconsistent statements
• asked any question whatsoever whether relevant to the matter under inquiry or not
• tested on such matters as the accuracy of their memory and perception

Question 8

what is the definition of a hostile witness?

Answer 8

• Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on the 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

what are the purposes of cross-examination?

Answer 9

• 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 10

what are some examples of judical warnings where a judge may direct the jury that evidence should be scrutinsed with care or given less weight?

Answer 10

• judicial warning that evidence may be unreliable
• judicial directions about certain ways of giving evidence
• judicial warnings about lies
• judicial direction about children’s evidence
• judicial warnings about identification evidence
• delayed complaints or failure to complain in sexual cases

Question 11

What are some reasons why leading questions are generally not permitted?

Answer 11

• 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 12

What are some exceptions to the general rule on leading questions?

Answer 12

• Introductory or undisputed facts
• consent of all parties
• judges discretion
• Identification
• Assisting memory
• Hostile witnesses

Question 13

What are the exceptions where a previous consistent statement is admissible?

Answer 13

• 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
• forms an integral part of the events before court

Question 14

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

Answer 14

• decide all questions concerning admissibility of evidence
• determine whether there is any evidence that is fit to be submitted to the jury for its consideration
• explain and enforce the general principles of law applying to the point in issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 15

What type of questions might a judge disallow?

Answer 15

Any question that a judge might consider:

• improper
• unfair
• misleading
• needlessly repetitive
• expressed in complicated language

Question 16

When can leave be given to give rebuttal evidence?

Answer 16

• 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
• is required to be admitted in the interests of justice for any other reason

Question 17

When is there a duty to cross examine?

Answer 17

• the cross examination deals with significant matters in the proceeding
• the matters are relevant and in issue in the proceeding
• the matters contradict the evidence of the witness
• the witness may reasonably be expected to be in a position to give admissible evidence on those matters

Question 17

When might a judge give a warning that evidence may be unreliable?

Answer 17

• hearsay evidence
• evidence of a statement by the defendant if that evidence is the only evidence implicating the defendant
• evidence by a witness who may have a motive to give false evidence
• evidence of a statement by the defendant to another person while both were in prison or other place of detention
• evidence about conduct of the defendant if the conduct was more than 10 years ago

Question 18

When a warning for lies is given, what direction should be included?

Answer 18

• the jury needs to be satisfied that the defendant did lie before they use the evidence
• people lie for various reasons
• the jury should not necessarily conclude that just because the defendant lied that they are guilty

Question 19

What should you do if you need to refer to your notebook in court?

Answer 19

• ask the courts permission
• introduce the material properly
• remember that the defence and jury are entitled to view your notes
• are only allowed to refresh your memory