Chapter 9 - Course of Evidence

Question 1

What are the rules for evidence in chief? (4)

Answer 1

(1) Leading questions on matters in dispute is not allowed (can’t suggested a desired answer or assume disputed facts),

(2) must not impeach the credit of own parties witness,

(3) witness must speak from memory without reference to a document (or own statement…a witness can refresh memory from a contemporaneous note once memory is exhausted

(4) All evidence in chief must relate to issues for trial and to enhance own credit (i.e. refer to consistent statements given, must not ask questions to enhance credit (i.e. good memory).

Question 2

What are the rules for cross examination? (3)

Answer 2

(1) must not communicate directly with witness under cross examination

(2) Brown v Dunn.

(3) Finality rule .

n.b. - Unchallenged evidence must be accepted unless it is so absurd or unreliable that no reasonable person would accepted.

improper questions - 21

Question 3

What is the rule in Brown v Dunn?

Answer 3

The Rule in Brown v Dunn is that in any civil or criminal trial if a party intends to contradict the evidence of witness by way of submission or by evidence then the party is required to put the substance of the contradiction to the witness during cross examination to the witness.

This gives the witness a fair chance to deal with the contradiction, assist the court in determining the truth, and alerts the other party who called the witness to call supporting evidence if any.

Failure to comply with the rule may result in (1) the court refusing to admit evidence contradicting a witness who was not properly cross examined (2) or the court accepting the challenged evidence (3) or a warning given to the jury.

To remedy a breach of the Brown v Dunn rule, in civil and criminal cases, a witness may be recalled.

Question 4

What is the finality/collateral rule?

Answer 4

During cross examination, where a collateral question is asked (one only going to credit) the party may generally not rebut the answer. Once the answer is given that is the end of it aka final (finality).

The rule ensure efficient litigation and avoids witnesses defending themselves against discreditable allegations peripheral to the issues.

Exceptions: (1) criminal record (2) bias (which goes to weight) (3) prior inconsistent statements (4) false complaints of sexual assault against the accused.

Question 5

Explain re-examination

Answer 5

It must arise out of cross examination

The purpose is to explain, repair, or improve a witnesses evidence after cross.

Question 6

What section of the EAQ deals with ‘improper questions’?

Answer 6

Section 21…defines improper to include questions which uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive…

Question 7

During evidence in chief, the prosecutions witness’s current is inconsistent and contradictory with a former statement they have made to police. Discuss how you would conduct the cross examination.

QLD

Answer 7

In accordance with s 18(2) QEA, I would ensure that the circumstances of when the statement was made were put to the witness and following this, I would ask whether the statement was made.
If the statement is accepted, the statement is proved per s18 and would be admissible of facts contained therein s 101 QEA.

If the witness denies making the statement, s18(1) would allow proof of the statement to be given. This may involve tendering evidence i.e. body worn camera footage or crossing another witness that the witness did give that statement.

If the statement is proved/or accepted, as per s 19(1A) I would draw the witness’s attention to the contradictory parts of the statement. This would also ensure Brown v Dunn is complied with.

Question 8

Explain: s 19 Proof of Prior inconsistent statement of witnesses QEA

Answer 8

s 19 allows a witness to be cross examined regarding a written statement without being shown it, however if it is intended to contradict the witness…the witness must be called to those parts of the statement which are suggested to be contradictory.

First step is to establish the witness made the prior statement was made, and once authorship is established general questions may be asked without showing it. If voluntarily shown to the other party or witness there is no duty to tender the document unless the cross examiner uses as evidence of issues.

N.B. The document must be made available to court if the judge wishes to see it.

Question 9

Are prior inconsistent statements, if proved, admissible? If so, what section of QEA?

Answer 9

s 101 - A previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19 that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible…

Question 10

Can you cross examine a witness on another persons hearsay statement in writing?

Answer 10

Yes - Where counsel has a hearsay document (i.e. newspaper article) which contradicts the witnesses evidence…during cross you can place the document before the witness without identifying it asking them to read it and whether there evidence changes…

If they say no - that is the end of it

If they say yes - you can ask them to expand upon that. This is not hearsay because you are asking them about things within their own knowledge.

Question 11

You act for a plaintiff in a breach of contract dispute (building works). You are conducting an examination in chief of your client regarding the conversation he had with the Respondent’ concerning the agreed scope of works.

Your client can’t remember what was said given it was 5 years ago. You are aware your client took notes shortly after the conversation. Discuss how you would proceed.

Answer 11

Court will allow witnesses to refresh their memory, once exhausted, from contemporaneous notes made. A copy may be used if the original is absent.

In criminal matters the notes must be produced.

Commonwealth: Governed by s 32, EAC. Leave required: s 32(1).

Question 12

What section governs cross examination as to credit QEA?

Answer 12

s 20 - Cross examination of the creditability of the witness will not be allowed if the answer would not materially impair the confidence of the reliability of the witnesses evidence.

Question 13

Finish the sentence: Evidence relating to credit, like evidence relating to issues, is still governed by the principal of …..

Answer 13

Relevance

Question 14

What QEA section deals with improper questions?

Answer 14

s21

Question 15

Can you cross examine an accused on previous convictions, or questions about their bad character? QEA If yes, when?

Answer 15

An accused must not be asked, and is not required to answer questions about previous convictions, or questions about their bad character (s15(2) QEA) unless:-

15(2)(a) - ‘other occasion’ evidence the question may rebut a defence, motive, identity, relationship, knowledge, ability, or modus opernadi; or

15(2)(c) - The defendant first gives evidence of good character or defence is conducted in a way to involve imputations on the character of a prosecution witness.
Leave first needs to be sought to ask these questions (15(3)).

Question 16

Can you cross examine a witness about previous convictions? If yes…pursuant to what?

Answer 16

s 16 - A witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.

s 15A - Need leave to cross on convictions subject to the Criminal Law (Rehabilitation of Offenders) Act 1986 etc

Question 17

Can a defendant who decides to give evidence refuse to any questions on the basis the answer will incriminate? QAE

Answer 17

no - s 15(1) Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.

Question 18

Hostile witness application

Answer 18

S17 EAQ must not impeach credit of own witness or where the witness appears adverse without leave of the court prove the witness has made another statement inconsistent with current testimony.
If there were other witnesses which are more helpful could invite the court to prefer that evidence over the current unfavourable witness without impeaching that witness.
Could consider hostile witness application (s17(1)).
On a voir dire, would need to satisfy the court the witness is intentionally withholding evidence, or is unwilling to tell the truth to be considered adverse. Unwillingness to tell the truth may be demonstrated by a significant departure from statement or pretending to forget. A disappointing or genuine forgetful witness not enough.
If leave is given would put to the witness the circumstances the statement was made s 17(2). This would allow the statement to be proved s 17(1). If it is not accepted could rely upon s18 to prove statement.
If the prior statement is proved per s 17 or 18 it is admissible per s101.

Question 19

Evidence in rebuttable

Answer 19

Where a defendant bares the legal burden in civil or criminal proceedings the prosecution or plaintiff may wait the defendant’s evidence and then present a reply as a matter of right. This is an exception to the rule that an affirmative case can not be split without leave.

This is rare in criminal proceedings, however can occur where the defendant raises an unexcepted alibi or ‘excuse’.

Question 20

Re-examination rules

Answer 20

Re-examination must only raise out of evidence given in cross examination. Collateral questions can be asked (Cf examination in chief). Where recent invention has been attacked can adduce prior consistent statement in some circumstances.

Question 21

Re-fresh memory

Answer 21

My client cannot attempt to revive his memory from a note until their memory has been exhausted. A note cannot be consulted unless the court is satisfied that it is contemporaneous with the event and the note cannot be read into the record. Should the above be satisfied, I would seek leave to provide the original note to the client to review (best evidence rule).
See also s32 CEA