9.1 Leading Evidence Flashcards
Leadings questions in Chief
Leading questions should not be used in Chief.
A leading question is one which suggests the desired answer, or assumed the existence of disputed facts.
i. Did you see another car coming very fast from the opposite direction?”
ii. Should be split up into something like the following: “Did you notice any other traffic? Which direction was it coming from? At what pace was it going?”
Leading questions permissible for non-controversial, time saving questions
Statutory prohibition at s 37 EAC
Statutory exception - s 33 EAC - police may be taken through evidence in chief by reading or being led through a signed statement
Leading questions in XXN
A leading question is one which suggests the desired answer, or assumed the existence of disputed facts.
In cross, first category generally permissible but second not Correction: Cross says second category MAY be impermissible as unfair to accused
Leading questions which suggest the desire answer are permissible in cross.
Leading questions which assume existence of facts not yet accepted by witness are not.
Permitted in statute at s 42 EAC though in both statute and common law
Refreshing memory
Where evidence given viva voce (orally) witness may refresh memory with a document from outside the court.
Witness does not need to produce the document when genuine recollection is revived.
The document must be produced however where recollection is not revived, because the witness is in effect giving “oral secondary evidence of an available and unproduced document”
To refresh memory however, following conditions must be met:
a) leave must be sought
b) document must have been made substantially contemporaneously and (if they didnt draft it) its accuracy accepted at the time
c) must be produced to the other side
d) not necessary to show that witness has exhausted their memory, they ought to be allowed to refer to the document where there are gaps in their memory
e) any privilege over the document waived when they witness utilised it as a refresher
NOTE - matters mentioned in the document are not proved by the statements contained in it under an exception to the hearsay rule, but by the witness’s oral testimony.
Cth statute applies common law at s 32 EAC
Giving testimony of memory
Permissible for witness to give testimony of an event they don’t recall but have no doubt that it occurred.
For example: a man who regularly shaves every morning could give evidence they did so on a particular day, though they don’t remember that specific day.
Admissibility of documentary evidence as to facts in issue
Section 92 Evidence Act Queensland
In any civil proceeding - where direct oral evidence of a fact would be admissible, any statement contained in the document tending to establish that fact shall be admissible IF:
a. the maker of the statement had personal knowledge of the matters dealt with by the statement and is called as a witness in the proceedings, or
b. the document forms part of the record and witness called
(2) has circumstances where personal attendance not required (death, cannot be found etc)
