Examination and Cross-Examination Flashcards
12 Competence and compellability
All witnesses are presumed competent and compellable to give evidence in proceedings under the UEA, subject to the exceptions specified in s13 to s18.
13 Competence – lack of capacity (test of capacity)
There are two tests for determining whether a person is not competent to give evidence about a fact for lack of capacity (s13(1)). They are:
- whether person has the capacity to understand a question about the fact
- whether person has the capacity to give an answer that can be understood
If a person is incapable in either of these respects, AND that incapacity cannot be overcome, THEN the person is not competent to give evidence about the fact (s13(1)).
13 Competence – lack of capacity (unsworn evidence)
A person who is competent to give evidence about a fact is not competent to give sworn evidence about that fact if they do not have the capacity to understand that they are under an obligation to give truthful evidence (s13(3)).
The person may give unsworn evidence if the court has told the person:
- it is important to tell the truth; and
- they may be asked questions that they do not know, or cannot remember, the answer to, and that they should tell the court if this happens; and
- they may be asked questions that suggest certain statements are true or untrue, and
- that they should agree with the statements which they believe are true and should feel no pressure to agree with the statements which they believe are untrue (s13(4) and s13(5)).
37 Leading questions
Basic rule: leading questions are prohibited in XIC and REX unless an exception applies.
A leading question (defined in the EA Dictionary) is one which:
- directly or indirectly suggests a particular answer to a question; OR
- assumes the existence of a fact in dispute about which the W has not given evidence before the question is asked.
Exceptions: a leading question may be put to a witness in XIC or REX only if:
- the court gives leave;
- the question relates to a matter introductory to the W’s actual evidence; or
- no objection is made and each party (other than party doing XIC or REX) is represented; or
- the question relates to a matter that is not in dispute; or
- the question is asked of an expert witness for the purpose of obtaining their opinion about a hypothetical statement of facts, being facts regarding which evidence has been, or will be, given (s37(1)).
38 Unfavourable witness
A court may grant leave for a party to question its own W in XIC as though the party were XXNing them, about the following:
a) unfavourable: W’s evidence that is unfavourable to the party; OR
b) no genuine attempt: a matter which the W may reasonably be supposed to have knowledge and about which it appears to the court the W is not making a genuine attempt to give evidence in XIC; OR
c) PIS: whether the W has, at any time, made a prior inconsistent statement.
Questioning under s 38 is to be taken as XXN for the purposes of the EA.
CREDIBILITY: s 38(3) provides that a party questioning a W under s 38 may also question them about matters relevant only to the witness’ credibility (need leave).
Meaning of ‘unfavourable’ (‘not favourable to party’s own case’, not ‘hostile’)
The word ‘unfavourable’ is not defined in the UEA. It has been held to mean ‘not favourable’, and not ‘adverse’ in the sense of ‘hostile’.
So evidence will be unfavourable when it is not favourable to the case the party is seeking to advance (DPP v Garrett [2016] VSCA 31)
39 Limits on re-examination
On REX, a W may be questioned about evidence they gave in XIC (s39(a)).
Other questions may not be put to them unless court gives leave (s39(b)).
NB: REX subject to same rules as XIC
NB: if a party’s W gives evidence unfavourable to that party during XXN, the party may seek to re-examine the witness under s39, then seek leave under s 38(1) to XXN as unfavourable.
NB: court will have reference to s192 in deciding whether to grant leave.
The rule in Jones v Dunkel
This rule operates where there is an unexplained failure by a party to give evidence, to call witneses or to tender documents or other evidence.
In civil proceedings, the jury (or court) is entitled to assume that the uncalled evidence would not have assisted the party.
41 Improper questions
The Court:
- MAY disallow an improper question or improper questioning put to a W, or inform the W that question need not be answered (s41(1) - discretion);
- MUST disallow an improper question or improper questioning put to a VULNERABLE witness in certain circumstances (s41(2) - duty).
S41(3) Definition of ‘improper question’ or questioning
Improper question / questioning is a question/sequence of questions that:
- is misleading or confusing; or
- is unduly annoying, harassing, intimidating, offensive, oppressive, or repetitive;
- is put to a W in a manner or tone that is belittling, insulting or inappropriate; or
- has no basis other than a stereotype (for example, based on the witness’ sex, race, culture, ethnicity, age, or mental, intellectual or physical disability) (s41(3)).
BUT a question is not an improper question only because it:
- challenges the truthfulness of the W or the consistency or accuracy of any statement made by them; or
- requires the W to discuss a subject that could be considered distasteful to, or private by, the witness (s41(5)).
42 Leading questions (XXN)
A court may disallow a leading question put to a witness in XXN or direct the W not to answer it (s42(1)).
A court must so disallow or direct if satisfied that the facts concerned would be better ascertained if leading questions were not used (s42(3)).
In deciding whether to disallow or direct W not to answer, court must take into account the extent to which:
- evidence given by the W in XIC is informing to the party who called them; and
- the W has an interest consistent with an interest of the examining party; and
- the W is sympathetic to the party conducting XXN, either generally or in relation to a particular matter; and
- the W’s age, and any mental, intellectual or physical disability (s42(2)).
43 Prior inconsistent statements of witnesses
Section 43 ensures a W who is about to be attacked on credit is dealt with fairly.
If a W under XXN does not admit they have made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the W unless, during the XXN, the cross-examiner:
- establishes prior statement: informs the W of enough of the circumstances of the making of the prior statement to enable them to identify it;
- identifies inconsistency: draws W’s attention to those aspects of the prior statement that are inconsistent with the W’s evidence given under XXN (s43(2)).
A party may re-open its case for the purpose of adducing evidence of the prior inconsistent statement (s43(3)).
44 Previous representations of other persons
A cross-examiner may question a W about a previous representation allegedly made by another person only if:
- evidence of that representation has been admitted; or
- the court is satisfied it will be admitted (s44(2)).
However, if neither condition pertains, and the representation is contained in a document, the document may be used to question a witness as follows:
- the document must be produced to the witness; or
- if the document is a tape recording, or any other kind of document from which sounds are reproduced, the W must be provided the means to listen to the contents of the document without other persons present at the XXN hearing those contents; AND
- after examining or hearing the contents of the document, the W must be asked whether they stand by the evidence they have given.
Neither cross-examiner nor W is to identify the document or to disclose its contents.
45 Production of documents (if used under s43 (PIS) or s44 (previous reps of other persons))
If court orders, or if another party requires, the party must produce to court or other party:
- the document; or
- such evidence of the contents of the document as is available to the party.
The court may:
* examine the document or other evidence that has been produced; and
- give direction as to its use (including ordering production); and
- admit it even if it has not been tendered by a party.
46 Leave to recall witnesses (overlaps with the rule in Browne v Dunn)
Court may give leave* to a party to recall a W to give evidence about a particular matter raised by evidence adduced by another party, being a matter on which the witness was not XXNed.
NB: will have ref to s192 factors
The rule in Browne v Dunn
The rule in Browne v Dunn is a rule of fairness. It provides that counsel must:
- put any matters concerning their case that are inconsistent with a witness’ evidence to that witness; and
- put any allegations or imputations that they intend to make against a witness to that witness.
The rule allows a witness to confront any proposed challenges to their evidence, and enables the jury to see and assess the reactions of that witness to those challenges.
Breach of the rule in B v D – judicial discretion on how to remedy (re-XN or JD)
A breach of the rule occurs when:
- counsel does NOT put matters concerning their own case that are inconsistent with a witness’ evidence to that witness; or
- does not put allegations or imputations that they intend to make against a witness to that witness.
Where such a breach occurs, the court may give leave under s46(1) for the recall of the witness who was not XXNed.
