Course of Evidence 1

Question 1

Judge’s role in jury trial (3)

Answer 1

Must:

-decide all questions concerning the admissibility of evidence.
-explain and enforce the general principles of law applying to a 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 under 12

Answer 2

Must:

-be informed by the judge of the importance of telling the truth and not telling lies.

-after being given that information, make a promise to tell the truth, before giving evidence.

Question 3

S 84 - Examination of witnesses

Answer 3

Witness gives evidence in chief first…
…then may be cross-examined by all other parties who wish to do so…
…and after that, the witness may be re-examined.

Question 4

Who is permitted to comment on the defendant not giving evidence?

Answer 4

-Defendant
-Defence counsel
-Judge

Question 5

Leading question defined as per S 4?

Prohibited when? Exceptions? (3)

Answer 5

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

General rule is that leading questions may not be asked during evidence in chief or re-examination (89).

May be permitted if:
-it relates to introductory or undisputed matters
-has the consent of all parties
-Judge allows it.

Question 6

Refreshing memory in court

Answer 6

S 90(5) - “for the purposes of refreshing memory while giving evidence, a witness may, with prior leave of judge, consult a document made or adopted at a time when his memory was fresh.

Document must be shown to all parties.

Must have been made by the witness, or another person on their behalf.

Question 7

Refreshing memory out of court

R v Foreman

Answer 7

Evidence Act makes no change to common law rules.

Witnesses may, before giving evidence, refresh their memory by reference to statements, briefs of evidence or a deposition statement, may check recollection with Police officer who interviewed them, etc.

Must relate to the witness’ own knowledge.

“The principle is that witnesses are free to use whatever means they choose to refresh their memories prior to trial, although the means used can affect the weight that is given to their evidence.”

Question 8

Previous Consistent Statement rule (35)

Answer 8

(1) a previous statement of a witness that is consistent with their evidence is not admissible unless (2) applies.

(2) It 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.

(b) forms an integral part of the events before the court.

(c) consists of the mere fact that a complaint has been made in a criminal case.

Question 9

Hostile witness defined as per S 4

What can they be asked? (4)

Answer 9

The witness -
-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.
-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.
-refuses to answer questions or deliberately withholds evidence.

May include:
-asking leading questions
-questions designed to probe the accuracy of memory and perception
-questions as to prior inconsistent statements
-other challenges to veracity, including substantially helpful evidence from other witnesses.