Evidence in chief Flashcards
Purpose
The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
Evidence must usually be given orally by a witness after he or she has taken the oath or affirmation; the ordinary way of giving evidence means that this will usually be in court, but “oral testimony” does not necessarily entail physical presence in court, since live, oral testimony may sometimes be given via closed circuit television or videolink (s105). Moreover, evidence in written form may be given where both parties consent.
The prohibition on leading questions
The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89).
The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).
There is no comprehensive test for whether a question is leading, but
examples include questions that seek a “yes or no” answer (for example, when a witness gives evidence of an assault, by asking “He hit you straight after dinner, didn’t he?”). Much will depend on what fact is in issue and what questions have already been asked.
The Evidence Act 2006 definition does not include questions that assume the existence of a fact or disputed fact about which the witness has given no evidence (for example “When did you start hitting your wife?”). However, this type of question is likely to be disallowed under s85 which governs unacceptable questions (discussed below).
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
- 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.
The goal of evidence in chief and re-examination is to draw out the witness’s own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony. It is very important that the evidence be given in the words of the witness and not that of the questioner.
When leading questions are permitted
Leading questions are statutorily permitted in evidence in chief in some circumstances:
89 Leading questions in examination in chief and re-examination
(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 Judge’s discretion, allows the question.
(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.
As well as the provisions in s89(1)(a) and (b), under s89(1)(c) the judge may exercise discretion to allow a leading question that is not of an introductory or undisputed nature, and for which there is not the consent of all other parties.
It is likely that leading questions may be allowed under s89(1)(c) in the following circumstances:
- To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
- In respect of questions about surrounding circumstances in order 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. - To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from young or vulnerable witnesses.
- Where the witness has been declared hostile.
Leading questions are permitted in cross-examination.
Refreshing memory
By the time a case comes to trial it is not uncommon for witnesses to find that they cannot recall details or have gaps in their memory. The extent to which a witness is permitted to “refresh” or revive their memory by talking to others or referring to relevant notes and statements is governed by two sets of rules: one relating to refreshment of memory by reference to written documentation in
court; and the other relating to refreshment of memory out of court. The Evidence Act 2006 regulates the refreshment of memory in court, but does not attempt to change the rules relating to refreshment of memory out of court.
Refreshing memory in court
Where a written record of the details of an event was prepared by a witness at the time of its occurrence or shortly thereafter and includes details which the witness cannot now recall, it obviously makes sense to allow the witness to refer to that document in the course of evidence. This is generally permitted as “refreshing memory”, in recognition of the fact that trials often occur
months or years after the event and that the memory of witnesses will have dimmed over time.
Section 90(5) of the Evidence Act 2006 provides that “for the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.”
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:
- 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. In Cameron v R30, the Court stated that there is a non-exhaustive set of factors that can be considered, including the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document.
In Rongonui v R31, the Court upheld a decision that a statement made 6 weeks after the event could still be a document made or adopted at a time when the witness’s memory was fresh.
The document must have been made by the witness, or by another person acting on the witness’s behalf in his or her presence and assented to by the witness.
In some circumstances the document may become admissible under s35(3) (previous consistent statements rule). This will be the case where there is an inability to recall the evidence at all.
Refreshing memory out of court
Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before, or they may check their recollection of events with the officer who interviewed them, and so forth. The documents which the witness uses to refresh his or
her memory may have been made by either the witness or by someone else; the requirement is simply that the document relates to matters which are within the witness’s own knowledge.
It is often something of a misnomer in these situations to describe the witness as merely refreshing his or her memory. It is certainly impermissible for a witness to refer to a document and to use it as a basis for his or her evidence, when the witness has no recollection at all of matters to which the document refers. More frequently, however, the witness has some recollection of the event in question,
but needs to refer to prior documentation to ascertain the details that have faded from memory. In this case, although it is both necessary and desirable that the witness be able to do so, it is somewhat artificial to describe the witness as reviving those details in his or her mind.
The Evidence Act makes no change to the common law position with regard to refreshing memory before trial.
In R v Foreman32, the Court of Appeal confirmed that the approach to refreshing memory out of court (before giving evidence) has not been changed by the Evidence Act 2006:
“The position prior to trial is uncontroversial and is unaffected by the Evidence Act 2006. 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. It is perfectly permissible, for instance, for witnesses to re-read their briefs before trial… Of course opposing counsel is perfectly entitled to explore what means, if any, were undertaken to refresh a witness’s memory and there has long been thought to be a discretion
to order the relevant document to be produced to opposing counsel.”
Previous consistent statements
Previous consistent statements are generally inadmissible. This is because, while mere repetition of an allegation does not increase its truthfulness, the fact that it is repeated and heard on several occasions will give it greater impact, and if put to the jury there is a danger that it will be accorded more weight than it warrants. The intention of the rule is therefore to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness’s consistency.
Previous consistent statements are governed by s35 of the Evidence Act 2006.
Section 35 substantially alters the common law with regard to both the admissibility and use of a witness’s previous consistent statements. It provides that:
35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence 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; 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
The general rule is that a witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in s35(2) apply.
However, what is said as part of the events in issue (what was known as the res gestae under the pre-Act law) is not excluded by the rule in s35(1).
In Hart v R33 , the Court confirmed that if these are relevant they are admissible and not as an exception to the rule in s35.
Exceptions to previous consistent statements rule
The judge will admit only as many previous consistent statements as is “necessary” to respond to the challenge to accuracy or veracity, thereby preventing multiple repetitive statements, which would undermine the general rule, being admitted.
Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” (s7) and therefore, unlike the previous law, will be admissible as evidence of its truth as well as of the fact that it was made.
Section 35 now governs all exceptions to the previous consistent statements rule.
Previous exceptions under the common law, including evidence of a prior identification and the recent complaint rule, no longer apply – except to the extent that they are preserved by s35(2).
Section 35(2) sets out three exceptions to the general prohibition on previous consistent statements:
- A previous consistent statement will only be admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, integral to the matters before the Court or the mere fact a complaint was made. Any suggestion in cross-examination that the witness is lying or mistaken should be sufficient.These challenges must be based on either a previous inconsistent statement or a claim of recent invention.
In Hart v R34, the New Zealand Supreme Court (Tipping J) has stated that:
“[T]he first thing that must be shown by the party seeking to adduce a
witness’s previous consistent statement under subs (2) is that there has been a challenge to the witness’s veracity or accuracy in a qualifying respect. It must have been suggested…that the witness is being untruthful or inaccurate in their testimony. Next it must be shown that it is necessary to admit the witness’s previous statement in order to respond to the challenge to the witness’s veracity or accuracy…The concept of necessity in this context means that it is necessary to admit the prior statement to do justice to the witness’s testimony in Court in light of the attack on that testimony…The touchstone is necessary extent of response, with relevance being implicit in the concept of necessity”.
The concept of necessity looks to the overall interests of justice, including fairness to the witness.
Hostile witnesses
The party who has called a witness may often find that the witness fails to give precisely the evidence they expect. Although they may contradict that evidence by producing other witnesses with a different version of the facts, a party calling a witness is not generally permitted to examine the witness with leading questions, and they are not generally entitled to challenge the veracity of their own witness through cross-examination (s84).
However, if the witness displays active hostility towards the party that has called him or her, leave may be sought from the judge to declare that witness a “hostile witness”. If the application is granted, the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers necessary for the purposes of doing justice (s94). This may include:
- 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).
The Court, in R v Vagaia35, highlighted that there is no rule restricting a party from calling a witness who is known to be hostile to that party
Hostile witness defined
Hostile Witness is defined in section 4 of the Evidence Act 2006. In relation to a witness, means 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; 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
Distinction between hostile and unfavourable witnesses
A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile. This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.
