Course of Evidence 2 Flashcards
Unacceptable Questions (85)
(1) What makes a question unacceptable? (5)
(2) Judge may have regard to? (a) - (e)
(1) Judge may disallow questions that are improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated.
(2) Judge may have regard to
(a) the age or maturity of the witness
(b) any physical, intellectual, psychological or psychiatric impairment of the witness.
(c) the linguistic or cultural background or religious beliefs of the witness.
(d) the nature of the proceeding
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.
Limit on re-examination
The party who called the witness may re-examine for the purposes of clarifying or qualifying any issue raised during cross.
MAY NOT be questioned on any other matter, except with the permission of the judge.
If additional evidence is allowed, a new cross will be allowed.
When must a judge consider giving a warning about possible unreliable evidence as per S122(2)? - (5 things)
(a) hearsay evidence
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant.
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant.
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison.
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
Direction about how evidence may be given (123)
Requires the judge to direct the jury that the law makes special provision for the giving of evidence in certain circumstances and that no adverse inference should be drawn against the defendant where a witness has given evidence in an alternative way.
Warning about lies (124)
It is a matter for the jury to conclude whether the defendant actually did lie. Any inference is to be drawn by the jury.
No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a lie, or if the defendant requests the warning be given.
When a warning must be given, it should include direction that:
-jury needs to be satisfied that the defendant DID LIE before they use that evidence.
-people lie for various reasons
-jury should not necessarily conclude that just because the defendant lied he is guilty of the offence charged.
Witnesses - practical matters ()
-advise them of time, date, place of trial and any exhibits to be presented.
-Check if they have given evidence before. If not, explain the process.
-advise that they may read any written statements to refresh their memory. No other documents.
-ensure they remain within call if they are excluded from the courtroom.
-check the jury list to make sure jurors and witnesses are not known to each other.
-warn them not to mix with jurors.
-advise them about expenses.