Examination Flashcards
Examination meaning
- means of adducing evidence by witnesses
EA ACT
2 SECTIONS
Section 144 EA- Court controls the process (determination of relevance and admissibility of evidence).
Section 143 EA- “No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
SWEARING IN
- OATH AND AFFIRMATION WITHIN - Oath and statutory declaration act 15 - affirmation
OSDA S. 16; “i do, solemnly affirm…”
Section 156 EA- incriminating answers isn’t ground to refuse to answer questions on cross-examination (defense witness who’s an accused person).
Section 211(1) CPC- accused won’t be cross-examined if they elect not to take an oath or be affirmed.
examination in chief (a case)
R –v- Russel Jones (1995)- Guidelines for the prosecution’s case.
no leading questions
REMEMBER THE DEVIL’S ADVOCATE BOOK
4 ISSUES AFFECTING TESTIMONY OF WITNESSES
- leading questions:
- s.149 - suggest answer
-Section 151 EA- leading questions allowed in CE.
Exceptions- Introductory part of examination (names) & identification of a person/thing in court (dock identification). - refreshing memory:
Section 167 EA: - You wrote yourself
- Not reduced into writing but someone else did; the content must have been read over to you and you affirm the writing.
- Come with a book to refresh their memory;
- Professional treaties
Conditions required of the document:
a. Contemporaneity- statement made at time of the incident or shortly afterwards when facts are fresh in a witness’s mind can be used to refresh memory. Done with leave of court. See Section 167 EA. R –v- Da Silva (1990)- criteria for need of refreshing.
b. Production of the document- Section 169 EA- document shall be shown to the adverse party (if required) and may cross-examine the witness on its contents.
c. Production of the original document- witnesses who have no recollection of events and who seek to give evidence to accuracy of contents of the document, the original MUST be produced. Rules of documentary evidence apply.
- unfavourable witnesses:
Unfavorable witness- called to prove a particular fact in issue or fact relevant to fact in issue but fails to do so or proves an opposite fact.
General Rule- party calling a witness not allowed to impeach character or credit of their witness. (R: PROTECT PUBLIC INTEREST NOT TO DISCOURAGE THEM FROM COMING TO COURT)
b. Hostile witness- undesirous of telling the truth at the instance of the party calling them.
Judge determines whether or not a witness is to be treated as hostile, but evidence & demeanor of a potentially hostile witness should be tested in court. See R –v- Darby (1989).
recall: allow the same party that called them to cross-examine them.
process (4 stage)
r v thomas.
previous inconsistent statements
General Rule- witness may not be asked in EiC if he’s formally made a statement consistent with their present testimony. Rationale- infringes rule against hearsay & is evidence that may be manufactured.
Credibility of a statement should depend on its inherent trustworthiness and not the number of times its repeated by a witness.
Exception- admission of prior consistent statements to re-establish credibility of an impeached witness.
REMEMBER THE DEVIL’S ADVOCATE BOOK
cross-examination (4 things)
- leading questions allowed
- can ask new questions (inadmissible cannot become admissible)
- credibility allowed to be questioned:
1. previous inconsistency
2. prejudice and bias
3. bad character: maxwell v dpp
BUT, S.159, forbids indecent and scandalous questions. - collateral questions
General Rule- answers by witnesses under CE to collateral questions (such as on credibility) are treated as final (cross-examiner not allowed to call rebuttal evidence).
Rationale- not treating such answers as final leads to a multiplicity of issues & prolonged trial.
5 exceptions:
1. bias
2. unsound mind
3. previous convictions
4. previous inconsistent
5. Evidence of Reputation for Untruthfulness
