Part 2.1 - Witnesses - Division 4/5- EIC and Re-Exam; X-exam Flashcards
37 Leading questions
(1) No leading question to be put to W in EIC or R-exam unless
(LQ = Question that directly or indirectly suggests a particular answer to the question OR assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked)
(1)(a) court gives leave
(1)(b) Relating to matters introductory to witness’s evidence
(1)(c) No objection is made and each other party represented by Aussie LP or prosecutor
(1)(d) Question relates to a matter not in dispute
(1)(e) If W is expert witness, the question is asked for the purpose of obtaining their opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.
(2) In civil proceedings only: Ban on leading questions does not apply 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, unless court otherwise directs.
(3) Subsection (1) doesn’t 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.
38 Unfavourable witnesses (determined at VD) – questions of procedure
(1) Party who called witness may, with court’s leave, question the W as though they were cross-examining the W about:
(a) Evidence given by the W that is unfavourable to the party who called them;
(b) Prevarication (matter of which the W may r’bly be supposed to have knowledge and about which it appears to court W is not, in EIC, making a genuine attempt to give evidence);
(c) Whether the W has, at any time, made a prior inconsistent statement.
(2) TAKEN TO BE XE FOR PURPOSES OF THIS ACT (other than for 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 takes place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If Court so directs, order will be how they order it.
(6) Without limiting the matters that the court may account in determining whether to give leave/direction under this section, it’s to take into account (a) whether party gave notice at earliest opportunity of intention to seek leave (b) matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
39 Limits on re-examination
On re-exam, (a) W may be questioned about matters arising out of evidence given by them in X-exam (this doesn’t include X-exam as UF witness); and (b) other questions may not be put to them unless the court gives leave.
S40 Witness called in error
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.
41 Improper questions — (the don’t be a dick rule)
(1) The court must disallow an IQ put in X-exam, or inform witness it need not be answered.
(3) IQ or IQ’ing means a question/sequence of questions that is:
(a) misleading or confusing
(b) unduly annoying, intimidating, harassing, offensive, oppressive, humiliating or repetitive
(c) put to the witness in a manner or tone that’s belittling, insulting or otherwise inappropriate (d) has no other basis than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability)
(5) question not improper merely because the question (a) challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b) requires W to discuss subject that could be considered distasteful to/private by, the W
(6) A party may object to a question put to a W on the ground that it is an improper question.
(7) But duty on court by this section applies whether/not objection is raised to particular Q.
(8) Failure by court to disallow question under this section, or inform the W that it needn’t be answered, doesn’t affect the admissibility in evidence of any answer given by W in response.
* *Cross-reference with ethics if sexual assault and JDA if children
42 Leading questions
(1) Can put leading question to W in X-exam unlss court disallows it/directs W not to answer (2) w/o limiting matters that court may take into account in deciding whether to disallow, it is to take account the extent to which:
(a) Evidence given by W in EIC in unfavourable to party who called the W
(b) The W has an interest consistent with an interest of the cross-examiner
(c) The W is sympathetic to the party conducting the XE, generally/on a particular matter
(d) W’s age, or any of their mental/intellectual/physical disability, may affect W’s answers.
(3) Ultimately: court to disallow or direct W not to answer if satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) Section does not limit the court’s power to control leading questions.
NB – Brown v Dunn rule – have to put your positive case to them (stab in front, not the back)
43 Prior (before court) inconsistent (ie, contradictory) statements of witnesses
(essentially, you can XE W about PIS w/o giving full particulars, but if you want to adduce your own evidence of their PIS you need to bring the statement to their attention before doing so - can re-open case to adduce that evidence)
(1) W can be X-exam about a PIS alleged to have been made by the W whether or not:
(a) Complete particulars of the statement have been given to the W; or
(b) A document containing a record of the statement has been shown to the witness.
(2) If, in XE, W does not admit that they have made a PIS, the X-examiner cannot adduce evidence of the statement other than from the W unless, in the X-exam, the X-examiner:
(a) Informed the W of enough of the circumstances of the making of the statement to enable the W to ID the statement; and
(b) Drew the W’s attention to so much of statement as is inconsistent with W’s evidence
(3) For purpose of adducing evidence of statement, a party may re-open the party’s case.
44 Previous representations of other persons
(1) Except as provided under this section, a cross-examiner cannot ask a W about a PR alleged to have been made by a person other than the W.
(2) But they can do so if:
(a) Evidence of the PR has been admitted; or
(b) The Court is satisfied that it will be admitted.
(3) If that is not the case and the representation is contained in a document, process is only as follows:
(a) the document must be produced to the witness
(b) if document is audio recording etc, W must be given means (eg, headphones) to listen to it so only he hears it without other persons present hearing the contents
(c) W then must be asked whether, having heard/ read contents, W stands by the evidence they have given
(d) neither the X-examiner nor the W is to identify the document or disclose any of its contents
(4) Document so used may be marked for identification.
45 Production of documents
(1) Section applies if a x-examiner is asking a W about (a) their PICS recorded in a document or (b) a PR made by another person recorded in a document.
(2) if court so orders or another party so requires, the cross-examiner must produce (a) the document; or (b) such evidence of the contents of the document as is available to the party,
to the court or that other party.
(3) Court can then (a) examine it, (b) give directions as to its use and (c) admit it even if it has not been tendered by a party ((4) but not if it’s inadmissible)
(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document
46 Leave to recall witness
(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) the evidence adduced contradicts what the witness said in EIC or (b) the witness could have given evidence about the matter in EIC —
(2) A reference in this section to matter raised by evidence adduced by another party includes reference to inference drawn from, or that party intends to draw from, that evidence.
