Practical matters for “not guilty” hearings

Question 1

Witnesses

Answer 1

The officer in charge of the case should:
* Advise witnesses of the time, date, and place of the trial, and the exhibits to be presented at the trial.
* Check whether they have given evidence before. If not, advise them of the procedure. For example, where they are to stand, that they should speak slowly and clearly, tell the truth, and say, “I do not know“ rather than guess an answer.
* Advise witnesses that if they have made a written statement, they may read it to refresh their memory before giving evidence. However, they cannot read other documents, such as the job sheets or briefs.
* Ensure witnesses remain within call if they are excluded from the
courtroom.
* Check the jury list to make sure that none of the jurors are known to the witnesses.
* Warn the witnesses that they are not to mix with or speak to jurors.
* Advise the witnesses about witness expenses.

Question 2

O/C Case General

Answer 2

Ensure that you look, stand and speak correctly.
* Identify the defendant.
* Locate your witnesses and help them as required.
* Do not mix or gossip with jurors or members of the defence.

Question 3

O/C Case Giving evidence

Answer 3

When you are giving evidence:
* Take care that you actually answer the question being asked.
* Say you do not know, rather than guess.
* Do not be flippant.
* Address the judge as “Your Honour“ or “Sir/Ma’am”.
* Address the prosecutor and defence as “Sir/Ma’am”.
* Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.

Question 4

Referring to your notebook

Answer 4

If you need to refer to your notebook:
* Ask the court’s permission.
* Introduce the material properly – for example, by saying, “I interviewed the defendant and wrote the answers in my notebook at the time”.
* Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
* Remember that you are only allowed to refresh your memory – you
cannot read the whole entry unless you have permission to read the notes of the interview.

Question 5

Introducing a notebook statement of admission to the court

Answer 5

When you have obtained a statement of admission which is to be read to the court, begin by giving evidence of any prior discussions or oral admissions. It is important to do this in case the statement is rejected because it is the only admissible evidence of an admission.

Your evidence of the discussion should include only passing reference to irrelevant material.

Example:
“At ….. I spoke to the defendant. Following a general discussion on ….. (weather, sport, etc), I then asked him ….. He replied, “…..” etc. I then asked him if he wished to make a statement. He agreed and I now produce and read this to the Court”.

Question 6

General guidance

Answer 6

If you can give evidence that is favourable to the defence, you must do so.

You are there to assist the court to arrive at the truth of the matter; it shows you are unbiased and confirms your credibility as a witness.

Remember: at all times be truthful, factual, unbiased, calm and professional.

Question 7

Summary

Answer 7

• The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law.
• The simplified conduct of a jury trial is:

− the jury is empanelled and a foreperson selected
− the prosecution gives their opening address
− the prosecution case is presented
− the defence gives their opening address (although the defence may
make an address after the prosecution opening)
− the defence case is presented (if they choose to call any witnesses)
− the prosecution makes their closing statement
− the defence makes their closing statement
− the judge sums up
− the jury retires to decide the verdict.

• Witnesses who are 12 years of age or older must take an oath or
  affirmation before giving evidence (s77). Witnesses under the age of 12:

− must be informed by the judge of the importance of telling the truth and not telling lies, and
− must, after being given that information and before giving evidence, make a promise to tell the truth.

• The previous consistent statements rule states that the previous statement made by a witness that is consistent with the witness’s evidence is inadmissible at trial unless exceptions found in the section apply.
• There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial. These include:

− the way evidence is given during the proceeding
− a warning about evidence that may be unreliable, and
− a warning about lies.