evidence

Question 1

Once the judge has granted an application to treat a witness as hostile, that witness may be: (1) Asked leading questions (2) Asked questions as to prior inconsistent statements (3) asked any question whatsoever whether relevant to the matter under inquiry or not (4) Tested on such matters as the accuracy of his / her memory and perception.What answers are correct?a. 1, 2, 3 and 4 are correct b. 1, 2 and 3 only are correct c. 1 and 2 only are correct d. 1, 2 and 4 only are correct

Answer 1

d. 1, 2 and 4 only are correct

Question 2

The general purpose of the examination in chief is to: a. Weaken, qualify or destroy the opponents caseb. Elicit testimony that supports the case of the party calling that witness c. Elicit new facts arising out of the cross-examination of the defence witnesses d. Establish the prosecution case through the defence witnesses

Answer 2

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

Question 3

“What is the meaning of veracity? a. a tendency to act in a particular way b. a disposition to refrain from lying c. the ability to record a statement accurately d. a tendency to exaggerate facts”

Answer 3

b. a disposition to refrain from lying

Question 4

What are the two exceptions to the burden of proof being on the prosecution?

Answer 4

• Where the defense of insanity is claimed • Specific statutory exceptions exist • The offence is a public welfare regulatory offence

Question 5

Describe 4 matters which the judge may consider in determining whether veracity evidence is substantially helpful?

Answer 5

(a) A lack of veracity on the part of the person when under a legal obligation to tell the truth. (b) That the person has been convicted of one or more offence that indicate a propensity for dishonesty or a lack of veracity. (c) any previous inconsistent statements made by the person. (d) bias or the part of the person (e) A motive on the part of the person to be untruthful.

Question 6

Describe: (a) Circumstantial evidence &(b) Statement

Answer 6

Circumstantial evidence - This evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn.Statements – This is a spoken or written assertion by a person or non-verbal conduct of a person intended by that person as an assertion of any matter.”

Question 7

Define “Presumptions of Law” and “Presumption of Fact”?

Answer 7

Presumptions of Law – Are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.Presumptions of Fact – Are those that the mind naturally and logically draws from the given facts. They are always rebuttable.

Question 8

Define: Circumstances - Section 16(1) Evidence Act 2006

Answer 8

Circumstances, in relation to a statement by a person who is not a witness includes – (a) the nature of the statement; and (b) the contents of the statement; and (c) the circumstances that relate to the making of the statement; and (d) any circumstances that relate to the veracity of the person; and (e) any circumstances that relate to the accuracy of the observation of the person”

Question 9

Where the onus falls on the defense to prove a particular element, the standard of proof required is: a. on the balance of probabilities b. no more than to raise a doubt c. beyond reasonable doubt d. beyond a shadow of a doubt”

Answer 9

a. On the balance of probabilities

Question 10

Explain the Section 8 test?

Answer 10

The Section 8 test involves balancing the probative value of evidence against the risk that it will have an unfairly prejudicial effect on the proceeding - s8(1)(a), or needlessly prolong the proceeding - s8(1)(b).

Question 11

Section 25 – Expert OPINION evidence. The opinion must:

Answer 11

• Be that of an expert • Comprise ‘expert evidence’ and • Offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding

Question 12

What are the four (4) reasons that evidence in rebuttal can be recalled?

Answer 12

“(1) Relate to a purely formal matter.(2) Relates to a matter arising out of the conduct of the defense the relevance of which could not reasonably have been foreseen.(3) Was not available or admissible before the prosecutions case was closed.(4) Is required to be admitted in the interests of justice for any other reason.”

Question 13

What are five (5) types of “Unacceptable” questions?

Answer 13

“(1) Unfair, (2) Improper, (3) misleading, (4) Needlessly repetitive, (5) Expressed in a language that is too complicated for the witness to understand.”

Question 14

Define corroboration & list two (2) offences which corroboration is required by the prosecution?

Answer 14

Corroboration – Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.(1) Section 108 – Perjury (2) Section 73 – Treason

Question 15

“Explain to an 11 year old’s parents what the judge will expect of the 11 year old in relation to Oath Affirmation. (Promise to tell the truth)”

Answer 15

Witnesses under the age of 12 must – (1) Be informed by the judge of the importance of telling the truth and not telling lies, and (2) After being given that information, make a promise to tell the truth, before giving evidence.

Question 16

What is the purpose of cross examination?

Answer 16

(1) To elicit information supporting the case of the party conducting the cross-examination.(2) To challenge the accuracy of the testimony given in evidence in chief.

Question 17

What are the four (4) principles of admissibility?

Answer 17

(1) Relevance, (2) Reliability, (3) Unfairness, (4) Public Interest”

Question 18

What was found in R v WANHALLA in relation to reasonable doubt?

Answer 18

R v WANHALLAA reasonable doubt is an honest and reasonable uncertain left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

Question 19

Explain the term, “Facts that prove the charge”?

Answer 19

The facts must prove the elements of the charge and the evidence should be made up of facts that prove that charge. The actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 20

What are four (4) of the six (6) exclusive rules of evidence?

Answer 20

(1) Veracity, (2) Propensity, (3) Hearsay, (4) Opinion, (5) Identification, (6) Improperly obtained evidence

Question 21

Before giving evidence in court, witnesses may refresh their memory from:

Answer 21

Their original statement and their deposition.

Question 22

Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding? a. Any person who is eligible to give evidence is compellable b. a married person whilst eligible is not compelled to give evidence against their spouse c. any person who is eligible may not be compellable d. a 12 year old child is eligible but not compellable to give evidence in a proceeding”

Answer 22

a. Any person who is eligible to give evidence is compellable

Question 23

A person is unavailable as a witness when:a. The person is overseas and can’t be contacted b. The person was not at work when the police went to pick the person up c. The phone number used to contact the person is no longer in service d. The person refuses to go to court

Answer 23

a. The person is overseas and can’t be contacted

Question 24

A Presumption of law…: a. Is always rebuttable b. May be rebuttable or irrebuttable c. Is always rebuttable or irrebuttable d. May be subject to judicial notice”

Answer 24

b. May be rebuttable or irrebuttable

Question 25

“When giving evidence in Court, you should address the judge as: a. Your worship b. Using the judges title and surname, e.g. Judge Smith c. Your honour or Sir/Ma’am d. Your worship or Sir/Ma’am”

Answer 25

c. Your honour or Sir/Ma’am

Question 26

The Court has a discretion to include propensity evidence against a defendant if: a. The prejudicial effect of the evidence outweighs its probative value b. It shows that the accused is of a criminal disposition and so more likely to have committed the crime c. It will dispose the jury against the accused d. The probative value of the evidence outweighs its prejudicial effect”

Answer 26

d. The probative value of the evidence outweighs its prejudicial effect

Question 27

In relation to privilege of medical practitioners, ‘protected communication’ refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient; 1. Who is suffering for a drug dependency 2. Who has any other condition or behaviour that manifests itself in criminal conduct 3. Who has provided information concerning their family 4. Who is suffering from a mental illnessWhat is correct?a. 1 only is correct b. 2 and 3 are correct c. 3 and 4 are correct d. 1 and 2 are correct”

Answer 27

d. 1 and 2 are correct

Question 28

A witness is deemed to be hostile when:a. They give different evidence from what is expected b. Refuses to answer questions or deliberately withholds information c. They are an “unfavourable witness” to the party calling them d. The prosecution provides grounds for disbelieving the witnesses current testimony”

Answer 28

b. Refuses to answer questions or deliberately withholds information

Question 29

“It is not necessary in court to prove “uncontroverted facts.” These are admitted as: a. Judicial notice b. Presumptions of fact c. Admissions for the purpose of trial d. Presumptions of law”

Answer 29

a. Judicial notice

Question 30

Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must… What is correct? a. Be that of an “expert” b. Comprise “expert evidence” c. Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding d. All of the above

Answer 30

d. All of the above

Question 31

Define the following terms: (a) Witness (b) facts in issue

Answer 31

Witness: This is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in the proceeding. For a limited number of provisions in the Evidence Act 2006Facts in Issue: are those which the prosecution must prove in order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defense in respect of which he or she carries the burden of proof.”

Question 32

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 32

Woolmintong V DPP - Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 33

Explain reasonable doubt / balance of probabilities – include the part in the module where it say ‘it means…’

Answer 33

The crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if at the end of the case, you are sure that the accused is guilty.A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence. Balance of probabilities is the standard of proof required for the defense to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as required in a criminal case.

Question 34

Define: ‘Hostile Witness’ Section 4, Evidence Act 2006

Answer 34

In relation to a witness means the witness :• Exhibits or appears to exhibit a lack of veracity when giving evidence unfavorable 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 35

(a) What is a leading question?(b) What is the general rule in relation to leading questions?

Answer 35

(a) a leading question as one that directly or indirectly suggests a particular answer to the question (b) The general rule is that leading questions may not be asked during examination-in-chief or re-examination

Question 36

When are leading questions permitted?

Answer 36

Section 89(1) - In any proceeding a leading question must not be put to a witness in examination in chief or re-examination unless – (a) the question relates to introductory or undisputed matters, or (b) the question is put with the consent of all other parties, or (c) the judge, in exercise of the Judges discretion, allows the question.

Question 37

Explain a ‘voir dire’?

Answer 37

A voir dire is: • A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. • It is conducted without a jury being present.

Question 38

What is presumption of fact and give an example?

Answer 38

Presumptions of fact are those that the mind naturally and logically draws from the given facts. Eg: one presumes that a person has guilty knowledge if they have possession of recently stolen goods”

Question 39

What is the purpose of evidence law & give four (4) examples?

Answer 39

Section 6 – The purpose of this Act is to help secure the just determination of proceedings by:(a) providing for facts to be established by the application of logical rule (b) providing rules of evidence that recognize the importance of the rights affirmed by the NZBORA 1990; and (c) promoting fairness to parties and witnesses; and (d) protecting rights of confidentiality and other important public interests; and (e) avoiding unjustifiable expense and delay; and (f) enhancing access to the law of evidence”

Question 40

Define Hearsay statement?

Answer 40

A statement that – (a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents

Question 41

Define expert witness?

Answer 41

“Section 4, Evidence Act 2006 – “A person who has specialized knowledge or skill based on training, study or experience.” The judge must determine whether the expert witness is properly qualified to testify”

Question 42

Section 40(1) Propensity – what does ‘propensity evidence’ mean? And what does exclude – Section 40(1)(b)?

Answer 42

“Section 40 Propensity evidence – (1)(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved, but (b) does not include evidence of an act or omission that is:(i) one of the elements of the offence for which the person is being charged (ii) the cause of action in the proceeding in question”

Question 43

Section 125(1) – Does a judge have to give a warning re: directions about evidence given by children?

Answer 43

(1) In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the Jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of warning had the complainant been an adult.

Question 44

Section 122(2) Judge MUST consider giving a warning whenever the following evidence is given: (evidence that may be unreliable)

Answer 44

(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 where both the defendant and the other person were detained in prison, a Police Station or another place of detention.

Question 45

(1) Define statement?(2) Are all people eligible and compellable to give evidence?

Answer 45

(1) This is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.(2) As a general proposition all people are eligible and compellable to give evidence.

Question 46

(1) List & describe two ‘alternative way’ of giving evidence?(2) The Court has the discretion to include propensity evidence against a defendant if:

Answer 46

(1)• In the Court room but unable to see the Defendant or other person • Outside the courtroom • By video recording made before the hearing(2)• The probative value of the evidence outweighs its prejudicial effect.

Question 47

Relevant evidence may be excluded if it’s unfair (prejudicial):

Answer 47

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding. • Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. Eg: An improper confession.

Question 48

When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006?

Answer 48

Section 16(2) defines what is meant by ‘unavailable as a witness’For the purpose of this sub-part, a person is unavailable as a witness in a proceeding if the person – a. Is dead, or b. Is outside New Zealand and is not reasonably practicable for him or her to be a witness, or c. Is unfit to be a witness because of age or physical or mental condition, or d. Cannot with reasonable diligence be identified or found, or e. Is not compellable to give evidence”

Question 49

A presumption of fact is: a. Always rebuttable b. May be rebuttable or irrebuttable c. Always irrebuttable d. May be subject to judicial notice

Answer 49

a. Always rebuttable

Question 50

What is the general rule in relation to ‘establishing facts?’ a. All facts in issue must be proved by evidence b. All facts relevant to the issue must be proved c. All facts in issue and facts relevant to the issue must be proved by evidence d. All facts in issue and facts that are formally admitted must be proved by the court

Answer 50

c. All facts in issue and facts relevant to the issue must be proved by evidence

Question 51

It is not necessary in court to prove facts such as ‘the season of summer in New Zealand is over the period of December to February”, these facts are admitted as: a. Presumptions of fact b. Admissions for the purpose of trial c. Presumptions of law d. Judicial notice”

Answer 51

d. Judicial notice

Question 52

A witness is eligible to give evidence if:a. they can be required to give evidence against their will for the prosecution b. they are not married to the defendant c. they are lawfully able to give evidence on behalf of both prosecution and defense d. they can be required to give evidence against their will for the defense

Answer 52

c. they are lawfully able to give evidence on behalf of both prosecution and defense

Question 53

What is the test for admissibility under Section 43, Evidence Act 06?

Answer 53

Is whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have unfairly prejudicial effect on the defendant.

Question 54

Balance of probabilities. Miller v Minister of Pensions

Answer 54

Miller v Minister of Pensions – Where the defense is required to prove a particular element, such as insanity, on the balance of probabilities. It must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.

Question 55

(1) Define Judicial notice(2) Provide an example where judicial notice can be taken?

Answer 55

(1) When a Court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.(2)

Question 56

In deciding whether to give permission for the prosecution to question the defendant about their veracity, the Judge may take into account: 38(3)

Answer 56

Section 38(3) (a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence. (b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence. (c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 57

Under Section 16(1), a business record means a document that is made:

Answer 57

(1) To comply with a duty or in the course of a business, and as a record or part of a record of that business. (2) from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the Court to have had, personal knowledge of matters dealt with in the information he or she supplied.

Question 58

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

Answer 58

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and (b) the statement provides the Court with information that the witness is unable to recall

Question 59

Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence: a. sexual violation by rape b. false oaths c. blackmail d. deception

Answer 59

b. false oaths

Question 60

An oath and affirmation may be taken by: a. all witnesses involved in a proceeding b. only witness under 65 years of age involved in a proceeding c. any witness 16 years and over involved in a proceeding d. any witness 12 years and over involved in a proceeding

Answer 60

d. any witness 12 years and over involved in a proceeding

Question 61

“10. Where an expert is called to give specialised evidence: a. the judge may take judicial notice of the experts qualifications b. the judge may take judicial notice of the experts qualifications only where the witness has appeared before them previously c. the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert d. the expert must prove that he/she acquired their specialised knowledge professionally”

Answer 61

c. the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert

Question 62

Explain what is meant by “burden of proof”

Answer 62

Burden of proof means: • Whoever asserts something must prove it • In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt. • In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.

Question 63

List four categories of privilege

Answer 63

• Privilege against self-incrimination • Marital privilege • Professional confidences • Public policy • Police informants

Question 64

The fundamental condition for the admissibility of evidence is that it must be relevant. What is the two prong test of relevance? Describe each prong.

Answer 64

Materiality and probativeness • Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding – s7(3)) • Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered (s7(3))

Question 65

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters.

Answer 65

• Lack of veracity on the part of the person when under a legal obligation to tell the truth • That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity • Any previous inconsistence statements made by the person • Bias on the part of the person • A motive on the part of the person to be untruthful”

Question 66

What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by sections 24 & 25 of the Evidence Act 2006?

Answer 66

Justifications for the rule derive from this rationale: • Where a witness offers a bare opinion it hold little probative weight • There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceedings • A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.

Question 67

A - Describe what privilege is in relation to the giving of evidence B – Name two privileges outlined in the Evidence Act 2006”

Answer 67

(a) A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible. (b) Any two of the following: • Privilege for communications with legal advisors – s54 • Privilege and solicitors trust accounts – s55 • Privilege for preparatory materials for proceedings – s56 • Privilege for settlement negotiations or mediation – s57 • Privilege for communications with ministers of religion – s58 • Privilege for information obtained by medical practitioners and clinical psychologists – s59 • Privilege against self-incrimination – s60 • Informer privilege – s64”

Question 68

List four of the functions of the judge’s role in a trial by jury:

Answer 68

• To decide all questions concerning the admissibility of evidence • To determine whether there is any evidence that is fit to be submitted to the jury for its consideration • To explain and enforce the general principles of law that are applicable to the point at issue • To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 69

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?

Answer 69

• Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents • juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question • There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people • The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested.

Question 70

What is a leading question? Give two exceptions to the general rule concerning leading questions

Answer 70

(a) A leading question directly or indirectly suggests the desired answer to a question (b) Any two of the following: • Introductory or disputed facts • Identification • Assisting memory • Contradiction • Hostile witnesses

Question 71

Define the following terms: a. Direct evidence b. Admissible evidence

Answer 71

a. Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced. b. Admissible evidence: evidence is admissible if it is legally able to be received by a court

Question 72

Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?

Answer 72

The duty to cross-examine will therefore arise under the act when four conditions are present: • The topic of cross-examination must deal with ‘significant matters’ in the proceeding • The matters must be ‘relevant’ and ‘in issue’ in the proceeding • The matters must ‘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 73

What are the two exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?

Answer 73

• To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or • On a claim of recent invention on the part of the witness

Question 74

There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name these two types of offences:

Answer 74

There are two types of offence – perjury and related offences (s108, 110 and 111 Crimes Act 1961) and treason (s73 Crimes Act 1961)

Question 75

In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfill to basic criteria. Name them:

Answer 75

In order to be admissible under s24, the statement of opinion must fulfill two basic criteria: • Opinion must be the only way in which to effectively communicate the information to the finder of fact • The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 76

Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.

Answer 76

The veracity and propensity rule do not apply to bail or sentencing hearings except when: • The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant • The evidence relates directly or indirectly to his or her reputation in sexual matters.

Question 77

What are two types of questions that can be asked once a witness has been declared hostile?

Answer 77

Asked leading questions Ask questions designed to probe the accuracy of memory and perception Asking questions as to prior inconsistent statements

Question 78

Refreshing memory in court Pg 83 If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document must be satisfied:

Answer 78

• the leave of the judge must be obtained • the document must be shown to every other party in the proceeding • S90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.

Question 79

Circumstantial evidence has been defined as: a. a fact always in issue that needs to be proved b. a fact that directly or indirectly tends to prove or disprove a fact in issue c. a fact that by inference can prove another fact in issue d. a fact that is admissible in evidence if it can be legally received by the court

Answer 79

c. a fact that by inference can prove another fact in issue

Question 80

The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?

Answer 80

• 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 81

Explain two (2) ways of GIVING EVIDENCE –

Answer 81

ORDINARY WAY – either orally in a courtroom in the presence of a judge (or judge & jury) parties to the proceeding, counsel and members of the public allowed by the judge, or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution & defence consent, the statement is admissible, and it is the personal statement of the deponent or maker.ALTERNATIVE WAY – In a courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio visual link AVL) where some or all of them are not physically present at the place of hearing for all or part of the proceedings.

Question 82

If a witness has memory loss, citing legislation can they be called hostile?

Answer 82

A hostile witness means the witness (s4, EA 2006): • Exhibits or appears to exhibit a lack of veracity when giving evidence unfavorable 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.Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.The fact that a witness suffers from memory loss does not, by itself justify finding the witness hostile.