Hearings

Question 1

What are the limitations on Leading Questions? What section of the Evidence Act cover’s Leading Questions?

Answer 1

Section 42
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Factors to be taken into account:
(a) witness is unfavourable to the party who called the witness,
(b) the witness has an interest consistent with an interest of the cross-examiner, and
(c) the witness is sympathetic to the party conducting the cross-examination
(d) the witness’s age, or any mental, intellectual or physical disability

(3) if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

Question 2

What is the definition of a leading question?

Answer 2

(a) directly or indirectly suggests a particular answer to the question, or
(b) assumes the existence of a fact not in dispute in the proceeding and

the witness has not given evidence before the question is asked.

Question 3

What is the rationale regarding the prohibition of asking leading questions as per R v THYNE

Answer 3

“The prohibition of leading questions in examination-in-chief is intended to prevent the examination from being conducted unfairly. There is a risk that a witness who is asked a leading question may assent to the suggestion made to him instead of answering from his own memory.”

Question 4

What are the requirements to refresh a witnesses’ memory in court. What section does this power come from in the Evidence Act?

Answer 4

Section 32
(1) Must have leave of the court

Court may decide;
(a) whether the witness will be able to recall without using the document, and
(b) whether the document is or is a copy of the document

(i) made by the witness when fresh in memory
(ii) was, at such a time, found by the witness to be accurate.

(3) May with leave of the court read document allowed

(4) Share to other party (DEFENCE)

Question 5

What section of the evidence act gives the power to allow police to read their statements? What are the requirements of this section?

Answer 5

Section 33

(1) a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless

(a) statement made at time or soon after

(b) signed by police officer

(c) a copy given to defence in a reasonable time before hearing

(3) They were a police officer at the time the statement was made.

Question 6

What is the time frame after police have made their statement to be allowed to read it in court. What case law does this come from?

Answer 6

Orchard v Spooner – it is measured in days, not weeks.
13 days

Question 7

What is the rationale behind the case law of Browne V Dunn?

Answer 7

“if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case; but is essential to fair play and fair dealing with witnesses.” IT IS ABOUT FAIRNESS!

Question 8

What constitutes a breach of the Browne V Dunn Rule?

Answer 8

A breach of the rule will occur when a witnesses evidence is first challenged, only after they have been cross examined. A breach is established if you don’t cross examine the witness at all on a point of difference in the case. A witness is required to have the case “put” towards them and be offered an opportunity to challenge it.

Question 9

What are the remedies for when a breach of Browne V Dunn occurs? What are the 2 aspects this takes into account?

Answer 9

The court will take into account the following remedies.
* Availability of witnesses (esp if they were not B v D ed)
* Cost (time and money) of getting witness returned
* Efficiency of the court
* Delay in concluding the matter to the court
* Cost of adjourning the matter
* Advantage gained by breaching the rule
* Intention to breach the rule by parties
* Change of instructions by defendant
* Miscarriage of justice

CASE LAW: Schneidas refuse to allow evidence

Ultimately use 46 to recall a witness.

Question 10

What is the case of Whitehorn and Apostillies in relation to cross examination?

Answer 10

“All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based.” This includes witnesses that give accounts inconsistent with the Crown case.

Call all relevant witnesses whether inculpatory or exculpatory.

It is the judgement of the prosecutor which determines which witnesses will be called. We must call all witnesses who it is believed will give evidence inconsistent with the Crown case unless…
● evidence is unreliable, untrustworthy or otherwise incapable of belief.”
● “If the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, than a selection may be made.”

Question 11

What is the case law of R –v- COSTELLO in relation to cross examination?

Answer 11

… Browne & Dunn does not impose any obligation upon counsel to challenge every word of witness’ evidence (for fear) that any word not so challenged will be given greater weight or cogency by reason of his failure to do so.

Question 12

What section relates to a witness being called in error?

Answer 12

Section 40
A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

Question 13

What section of the evidence act relates to granting leave to recall witnesses. Explain this section.

Answer 13

Section 46
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and—
(a) it contradicts evidence about the matter given by the witness in examination in chief, or
(b) the witness could have given evidence about the matter in examination in chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

Question 14

What section of the evidence act allows parties to question witnesses?

Answer 14

Section 27

Question 15

What section in the evidence act governs prior inconsistent statements? Explain this.

Answer 15

Section 43
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not—
(a) complete particulars of the statement have been given to the witness, or
(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner—
(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.

Question 16

What is an unfavourable witness, what section relates to this in the evidence act?

Answer 16

38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a) evidence given by the witness that is unfavourable to the party
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.

Question 17

What is an unfavourable witness, what section relates to this in the evidence act?

Answer 17

38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.

Question 18

What is the definition of a prior inconsistent statement

Answer 18

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness.

Question 19

What is the case law regarding the authority for tendering prior inconsistent statements?

Answer 19

Cole V R

Question 20

What is the case law regarding Lazano regarding what an unfavourable witness is?

Answer 20

not favourable = unfavourable (also includes neutral)

Question 21

What is a Mamhoud direction in regards to the case law?

Answer 21

Where a witness might have been expected to be called was not called by the prosecution. Possible reason doubt in accused due to not hearing evidence of person not called. Only applies to the prosecution!

Question 22

How can we ask leading questions in court? What section govern’s this in the evidence act?

Answer 22

Section 37

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless—
(a) the court gives leave, or
(b) the question relates to a matter introductory to the witness’s evidence, or
(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor, or
(d) the question relates to a matter that is not in dispute, or
(e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.
(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.
(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Question 23

What is the case that affirms the use of Browne V Dunn in Criminal Proceedings? What is the direction of this case?

Answer 23

R v Birks

Ideas of fairness, in a criminal matter, can have different implications for the defendant or the prosecution. In a civil matter the parties come on a more equal footing.
Unrepresented people shouldn’t be expected to comply with a rule of professional practice.

Question 24

What does Libke v the Queen state in regards to cross examining questions?

Answer 24

inappropriate questions including:

Offensive Questioning
Comments
Compound questions
Cutting off answers before they were completed
Questions resting on controversial assumptions
Argumentative questions

Question 25

What section of the evidence act limits the power on asking leading questions? What does this section state on this?

Answer 25

Section 42
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which—

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and

(b) the witness has an interest consistent with an interest of the cross-examiner, and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and

(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court’s power to control leading questions.

Question 26

What section of the evidence act grants leave of the court? Define this.

Answer 26

Section 192

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Question 27

What section allows a prior inconsistent statement to be tendered? Explain this.

Answer 27

Section 106

106 Exception: rebutting denials by other evidence
(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if—
(a) in cross-examination of the witness—
(i) the substance of the evidence was put to the witness, and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness—
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

Question 28

What section rebuts the hearsay rule when tendering a prior inconsistent statement as evidence?

Answer 28

Section 60

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note—
Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen(1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.