Part 2.1 - Witnesses - Division 3 - General rules about the giving of evidence Flashcards
26 Court’s control over questioning of witness
Court can make such orders it considers just re:
(a) The way in which witnesses are to be questioned;
(b) The production / use of documents and things in connection with the questioning of a W;
(c) The order in which parties may question a W;
(d) The presence and behaviour of any person in connection with the questioning of a witness.
27 Parties may question witnesses
A party may question any witness, except as provided by this Act.
28 Order of examination in chief, cross-examination and re-examination
Unless court otherwise directs, (a) X-exam is not to take place before the EIC of the W; (b) re-exam not to take place before all other parties who wish to do so have x-exam’d the W.
In other words, unless the Court otherwise orders:
1. EIC
2. XE
3. RE
29 Manner and form of questioning witnesses and their responses
(1) party may question W in any way thought fit, except as provided by this Chapter/as directed by the court.
(2) Court can on own motion or application of party, direct W to give evidence wholly/partly in narrative form.
(3) Such direction may include directions about how evidence to be given in that form
(4) Evidence may be given the form of charts/summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
32 Attempts to revive memory in Court (in course of giving evidence) with document about fact or opinion (stumbling of facts – usually goes to here, not unfavourable witness)
(1) A W mustn’t, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) In deciding whether to give leave, court must take into account, inter alia:
(a) Whether W will be able to recall fact or opinion adequately without using the document; and
(b) Whether doc was (i) written or made by W when events recorded in it were fresh in their memory OR
(ii) was, at such a time, found by the W to be accurate.
(3) If W has revived memory using document while giving evidence with leave, can read aloud from document, with (further) leave of the court.
(4) The other party can then call for the doc and the court is to give such directions as it thinks fit to ensure that so much of the doc as is relevant is produced to that party.
33 Evidence given by police officers
(1) Despite s 32, in any criminal proceeding, PO can give EIC for the prosecution by reading aloud/being led through written statement previously made by that officer, (2) if:
(a) Statement made by PO at time of/soon after events
(b) PO signed the statement when it was made
(c) Copy of statement had been given to A/their lawyer a reasonable time before hearing of the evidence for the P.
(3) reference to PO includes reference to PO at the time of making the statement (ie, a former PO).
34 Attempts to revive memory out of Court
(1) Court may, on request of party, give such directions as are appropriate to ensure specified documents and things used by a W otherwise than while giving evidence to try to revive their memory are produced to requesting party.
(2) Court may refuse to admit the evidence given by the W so far as it concerns a fact as to which the W so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
35 Effect of calling for production of documents
(1) Party not to be required to tender a document only because (a) the party called for it’s production or
(b) inspected it after production
(2) Party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.
36 Person may be examined without subpoena or other process
(1) court can order person who’s (a) present at hearing (b) compellable to give evidence
to give evidence and produce documents/things even if subpoena/other process hasn’t been duly served on them.
(2) such person subject to same penalties etc. as if duly served with subpoena/other process
(3) Party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.
