Chapter five: The course of evidence

Question 1

Judge’s 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.

Question 2

Witnesses who are 12 years or older must take an oath or affirmation before giving evidence.

Witnesses under 12 must:

Answer 2

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

What is the purpose of evidence in chief?

Answer 3

Elicit testimony that supports the case of the party calling that witness

Question 4

*define leading question

Answer 4

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

Question 5

Three reasons why leading questions are not permitted

Answer 5

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 6

When leading questions ARE permitted

Answer 6

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

Question 7

for the purposes of refreshing his memory by giving evidence, what may a witness do?

Answer 7

Consult a doc made at a time when his memory was fresh

Question 8

a previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement:

Answer 8

(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 9

*If a witness is declared a “hostile witness”. Cross examination for the purpose of justice may include:

Answer 9

asking leading questions

asking 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 10

Define “hostile witness”

Answer 10

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

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 11

What are the two purposes of cross examination?

Answer 11

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

Question 12

The duty to cross examine will arise under the Act when:

Answer 12

• the cross-examination deals with “significant matters” in the proceeding, and
• the matters are “relevant” and “in issue” in the proceeding, and

• the matters “contradict the evidence of the witness”, and

• The witness may “reasonably be expected to be in a position to give
admissible evidence on those matters”.

Question 13

*Unacceptable questions: the judge may direct a witness not obliged to answer, having regard for:

Answer 13

(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 14

Evidence in rebuttal- such leave may be given to the prosecution if further evidence:

Answer 14

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.

Question 15

*There are a number of circumstances in which a judge may direct that the jury that evidence should be scrutinised with particular care or given less weight:

Answer 15

• judicial warning that evidence may be unreliable – s122
• judicial directions about certain ways of giving evidence – s123
• judicial warnings about lies – s124
• judicial directions about children’s evidence – s125
• judicial warnings about identification evidence – s126
• delayed complaints or failure to complain in sexual cases – s127.

Question 16

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

Answer 16

− decide all questions concerning the 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 at issue 

		− instruct the jury on the rules of law by which the evidence is to be weighed once it has  been submitted.

Question 17

Define “leading question” under s4 of the Evidence Act 2006.

Answer 17

directly or indirectly suggests a particular answer to the question.

Question 18

What is the purpose of cross-examination?

Answer 18

− 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, for example, by  casting doubt on the witness’s veracity, or by eliciting contradictory testimony.