Evidence in Chief

Question 1

What is the purpose of evidence in chief?

Answer 1

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.

Question 2

Define Leading Question S4 EA 06

Answer 2

as one that directly or indirectly suggests a particular answer to the question.
For example (for example, when a witness gives evidence of an assault, by asking “He hit you straight after dinner, didn’t he?”) Leading questions tend to look for a yes or no answer.

Question 3

Discuss questions that assume existence of fact

Answer 3

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?” This type of question is likely to be disallowed under s85 which governs unacceptable questions.

Question 4

Prohibited leading questions is based on the fact that they will produce unreliable evidence. List the reasons for this.

Answer 4

• 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 5

What is the goal of evidence in chief and re-examination?

Answer 5

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

Question 6

S89 EA 06 Leading questions in examination in chief and re-examination

Answer 6

(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.

Question 7

In what circumstances would leading questions be allowed?

Answer 7

• 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

Question 8

Discuss the 2 ways of refreshing memory for court as a witness and the 2 rules that govern this.

Answer 8

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

Question 9

Discuss refreshing memory S90(5) of the EA 2006

Answer 9

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.”

Question 10

What must a witness do to consult a document whilst giving evidence

Answer 10

• 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 11

What was held in Cameron v R in relation to refreshing ones memory?

Answer 11

In Cameron v R, 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

Question 12

What was held in Rongonui v R in relation to the time lapse required for memory

Answer 12

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.

Question 13

Discuss the refreshing of memory outside of court

Answer 13

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 Evidence Act makes no change to the common law position with regard to refreshing memory before trial.

Question 14

S35 EA 06 Previous consistent statements rule

Answer 14

(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

Question 15

What was held Hart v R in relation to previous consistent statements.

Answer 15

“[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”.

Question 16

Define a Hostile Witness S4 EA 06

Answer 16

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.

Question 17

Discuss the distinction between a Hostile witness and a unfavourable one.

Answer 17

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.