PREPARATION FOR, AND THE COURSE OF, A TRIAL OR PROOF Flashcards
precognition def
is a document prepared pre-trial setting out the evidence which it is hoped a witness will give:
mc avoy v Glasgow
a precognition is any compilation of the evidence which it is hoped that a witness will give derived from statements made by him and reduced to writing
Henderson v patrick
CIVIL- NO requirement to submit precognition. but refusal will be a matter for comment and crossexamination.
hm v monson
CRIM The “civic duty” to submit to precognition There is said to be a civic duty for a witness in a criminal case to give precognitions both to the defence and to the Crown
1995 act s.155(4)(summary) 267A (solemn)
CRIM The power of the Crown to cite witnesses for precognition The Crown may cite a witness for precognition: a failure to appear or to give relevant information may be punished as a criminal offenc
low v macneil
CRIM Precognition on oath A sheriff may grant an order for any alleged witness – other than a co-accused – to appear before the sheriff in chambers for a precognition on oath: 1995 Act, s 291. Failure to attend or answer questions (or prevarication) is an offence. The court may grant the order if satisfied that it is reasonable to require precognition on oath in the circumstances
kerr v HM ADV
WHAT USE CAN BE MADE OF PREGOGNTIONS
MCAVOY V GLASGOW
There is, however, nothing to stop a precognoser giving hearsay evidence of what the witness said to him
s. 9 civil evidence scot rules
The abolition of the rule against hearsay in civil proceedings does not render precognitions admissible: see the definition of “statement” in s 9 of the Civil Evidence (Scotland) Act 1988
What use can be made of precognition
Precognitions are to be used in preparation of a case – generally, very little use of them can be made in cou
Note that the prohibition of the use of precognitions does not apply to precognitions on oath as they are not subject to the same problems.
Clarke v Edinburgh and District Tramways 1914 SC 77
Disclosure of potential witnesses CIVIL
In most civil cases, there is an obligation to exchange lists of witnesses.
At common law, there was a power to apply to the court for disclosure of the names or addresses of persons “representing” the parties in the issue under dispute
Moffat v News Group Newspapers
Disclosure of potential witnesses CIVIL PROCEEDINGS
Administration of Justice (Scotland) Act 1972, s 1A
seek disclosure of identity of persons who (a) might be witnesses in existing or likely civil proceedings or (b) might be defenders in any civil proceedings which are likely to be brought
1995 Act, ss 66, 67 and 78(4
Disclosure of potential witnesses CRIM
In solemn procedure, the Crown must provide a list of witnesses with the indictment and the defence must provide one in advance of trial
summary procedure there is no statutory obligation on Crown to provide list but this is done on request
ss 121-123 of the Criminal Justice and Licensing (Scotland) Act 2010
Disclosure of potential wCrown also has a continuing duty to disclose all information obtained in the course of an investigation which would: (a) materially weaken or undermine the evidence that is likely to be led by the prosecutor, (b) would materially strengthen the accused’s case, or (c) is likely to form part of the evidence to be led by the prosecutor. Failure to do so may result in breach of Article 6 ECHRitnesses CRIM
Holland v hm adv
Sinclair
Disclosure of potential witnesses CRIM
Crown also has a continuing duty to disclose all information obtained in the course of an investigation which would: (a) materially weaken or undermine the evidence that is likely to be led by the prosecutor, (b) would materially strengthen the accused’s case, or (c) is likely to form part of the evidence to be led by the prosecutor. Failure to do so may result in breach of Article 6 ECHR
define oath
I swear by Almighty God that I will tell the truth, the whole truth, and nothing but the truth.”
(Act of Adjournal (Criminal Procedure Rules) 1996, Rule 14.5 (and Form 14.5A and B); Rules of Court of Session 1994, Forms 36.10A and BAll witnesses must take the oath or affirm before giving evidence. Failure to do so is A CONTEMPT OF COURT
Meehan v hm adv
If a witness has declared a form of oath to be binding upon him, no objection can be taken on the ground that it later appears to be in conflict with his religious beliefs (see Oaths Act 1978, s 4(2
r vkemble
If a witness has declared a form of oath to be binding upon him, no objection can be taken on the ground that it later appears to be in conflict with his religious beliefs (see Oaths Act 1978, s 4(2
Evidence (Scotland) Act 1866; Rules of the Court of Session 1994, r 36.11; Ordinary Cause Rules 1993, rule 29.18; 1995 Act, ss 93, 157.
(4) Recording of evidence
In sheriff court Ordinary Cause and Outer House, and in solemn criminal procedure.
presence in court OLD def
At common law a witness who had been in court and heard the evidence of other witnesses was thereby rendered incompetent to testify. The only exception was that skilled witnesses might be allowed to hear evidence of fact, but were required to withdraw during the evidence of other skilled witnesses
1995 Act, s 267/Evidence (Scotland) Act 1840, s3; terms almost identical as 1840 Act formerly applied to both civil and criminal cases
admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.”
Affleck v HM
presence in court.The parties can consent to the witness being present in court
macdonald v mackenzie
PRESENCE IN COURT The judge can raise the issue even if no party object
GERRARD V R W SIVES LTD
PRESENCE IN COURT
Can this be a basis for objecting to a person’s presence in court (as opposed to their evidence being led thereafter
Civil Evidence (Scotland) Act 1988 s 4; 1995 Act, ss 268-269
What if a witness gives evidence, remains in court, and is later recalled
examination of witness the general irder
- exam in chief
- cross exam
- re-exam
scaldlan v hm adv
the exam of witness more complicated where there are more then 2 parties
McKenzie v mckenzie
EXAM IN CHIEF
Leading questions” (those which contain or suggest the answer) are generally prohibited. If they are nevertheless asked, the answers obtained are generally worthless
frank v hm adv crim
EXAM IN CHIEF
The term “hostile witness” has no technical meaning in Scotland, and a party does not require leave to suggest that his witness is lying or unreliable
Macleod v hm adv
EXAM IN CHIEF
Where a witness gives internally contradictory evidence, it is up to the jury to decide which part of the witness’s evidence they prefe
niven vhart
refreshing memory
The general rule is that a witness should speak from memory, but can refresh his or her memory by looking at notes which he made at the time or shortly thereafter.
The other party is normally entitled to see such notes
black v bairds & dalmellington
refreshing memory
Medical notes can be read
Deb v Normand
REFRESHING MEMORY If the notes are not referred to by the witness, the other party has no right to see them
define cross exam
The purpose of cross examination is to test a witness’s veracity and accuracy, to obtain evidence on points about which the witness has not been questioned, and generally to elicit admissions or information favourable to the cross-examiner’s case. But it is open to serious objections, particularly in the case of young or vulnerable witnesses
Leading questions are permissible, but hypothetical questions, and “double” or trick questions will be discouraged: e.g. “Have you stopped beating your wife
McKenzie v mckenzie
FAILURE TO CROSS EXAMINE IN CIVIL
the most obvious principles of fair play dictate that, if it is intended later to contradict a witness upon a specific and important issue to which that witness has deponed, or to prove some critical fact to which that witness ought to have a chance of tendering an explanation or denial, the point ought normally to be put to the witness in cross-examination.
Bryce v british railway board MODERN APPRACH
Failure to cross-examine: civil cases
a failure by the defender to cross-examine the pursuer’s witness can be objectionable as failing to lay a foundation for the defence case – i.e. pursuer has been prejudiced because no opportunity to “meet” defence cas
if prosecutor doesn’t object ot evidence being led then it will be.
but the cross exam of a pursuers witness will be done at def expense
keenan v Scottish wholesale cooperative society
Failure to cross-examine: civil cases failure to cross exam def witness. NO Q OF PREJUDICE but failuere can be taken as IMPLIED ACCEPTANCE OF THE EVIDENCE
sometimes concession regarded as pros conceding what is true
walker v mcgruther & marshall
Failure to cross-examine: civil.
exceptionally rare incident both sides accepted that witness was truthful.
witness negligent. witness argue they didn’t drive at the time eitness cross exam = liar. BUT PROS NEVER STATE TO WITNESS THAT THEY WERE LYING.
defence argue as it was never put to witness that they were neg and cannot impliedly accept that point.
HELD pros v. clear YES IT WAS ACCEPTED
young v guild
FAILURE TO CROSS EXAM CRIM
FAILURE TO CROSS EXAMINE CAN BE SUBJECT TO COMMENT BUT DOESNT AMMOUNT TO ACCEPTANCE OF EVIDENCE
failure to cross exam wont be fatal to the case of the crown. CASE UNDERSTOOD things may be different if defence believe the crown is accepting of their points and leads to need for further evidence
MCPHERSON V COPELAND
FAILURE TO CROSS EXAM CRIM failure by the defence
failure ti cross examine subject of judicial comment doesn’t preclude their witness on the same pt
WILSON V BROWN
FAILURE TO CROSS EXAM CRIM
a failure by the def to cross exam a pros witness does not supply proof or corrob of a key element
GIBSON V BICC
REXAM where a witness makes damaging admissions in cross exam, the court may have regard to a failure to re-exam at that point.
purpose of rexam is to go over/ throw up any issues/ doubts and no successful clarification then taken into account
1995 263(5)- CRIM
EVIDENCE SCOT 1852 S,4
CIVIL EVIDENCE 1988 S.4(1a)- civil
recall by witness
CRIM- stat power
CIVIL -stat power
THOMSON V HM
RECALL OF WITNESS BY PARTY no automatic right of recall an interests of justice test applies. CROWN witness unable to ID witness in court but was able to ID to police sherrif thought she was provocotating. she was held in court. at the end of court she was recalled and ID accused
APPEAL s.263(5) rectify omission not to bringwitness back HELD section put NO restriction on how you crecalled your witness
BIRREL V HM
RECALL OF WITNESS BY PARTYwitness arrested for purgury. crown asks for recall. key witness then incrim birrel practice should not be extended so far as to exclude a witness accused of purgery. HELD LEGIT USE OF SECTION
1995 ACT S.269
PROOF REPLICATION AND ADDITIONAL EVIDENCE
proof in replication this is something which the pros or pursuer may be allowed to do to avoid prejudice
either predited request made at any time def close case and speech of judge
1995 ACT S.268
PROOF REPLICATION AND ADDITIONAL EVIDENCE
ADDITIONAL EVIDENCE- crim cases ONLY. judge persuaded that evidence material not reasonably made available or could not have been forseen
TALLIS V HM ADV
QUESTIONS BY JUDGE. judge may put Q tto clear up ambiguities that are not leared up by either examiner or cross exam and such q he should regard relevant for determination
BUT SHOULD NOT TAKE THE ROLE OF CROSS EXAM.
ELLIOT V TUDHOPE
QUESTIONS BY JUDGE- leading questions by the judge may be permissable
MCCALLUM V PATERSON
QUESTIONS BY JUDGE
retrile can always ask witness if they have cred including conviction
mcleod v hm adv
QUESTIONS BY JUDGE
cross exam should be allowed if judges q elicits new evidence
rollo v wilson
QUESTION BY JUDGE.
the judge has power at common law to recall a witness ex proprio motu but only clear ambiguities
dickie v HM adv
CROSS EXAM ON CHARACTER AND CRED
It is legit to cross examine a witness of crd BUT this right is said to be limited.
ASK ABOUT PREVIOUS ONVICTIONS can also ask prostitute if hang around with prostitutes
hm adv v grimmond
1995 act s.275C
CROSS EXAM ON CHARACTER AND CRED
cannot lead evidence on this point
(expert evidence on sub sbehaviour of complainer often sexual cases)
hm adv v ashrif
CROSS EXAM ON CHARACTER AND CRED can lead evidence on previous conviction
s.111(8) and 192(3) 1995 act
OBJECTIONS TO Q
should alys be noted in case of appeal
NO REVIEW OF COMPETENCE, RELEVANCE OR ADMISSIBILTY OF EVIDENCE IS POS UNLESS OBJECTION WAS TAKEN AT TRIAL
111(8) = solemn
192(3)=SUMMARY
THOMPSON V CROWE
OBJECTIONS TO Q trial within a trial any Q about evidence should be debate WITHOUT JURY so they need not know it existed.
HM ADV V SINCLAIR
OBJECTIONS TO Q
Accused will testify in trial within a trial and crown cannot use evidence. if what is said in the trial within the trial is substantially different to what is discussed in trial then it can be talked at that point.
AN IMPROPER 1 IF NOT ANSWERED CANNOT GIVE RISE TO SUCH PREJUDICE AS TO JUSTIFY DESERTION OF DIET
HUTCHISON V HM
prevaricating witness
Where a witness is in contempt the jdge should not order the detention of the witness in open court, since that might create prejudice in the minds of the jury
AULD V MCBEY
special type of witness: child witness
l. inglis argues that
best witness are boys and girls. their eyes are open but they are not talking with neighbours
s,24 vulnerable witness act 2004
used to be that children under 12 were subject to competency test
now due to s.24 it is of the courts discrestion whether to put a child on oath or admonish them to tell the truth
1995 act s.271(1)
outlines categories of VULNRABLE WITNESS
1. CHILD WITNESS UNDER 18
2. mental disorder/ fear and distress/ sexual offences / asylum and immigration s.4 (trafficking peeples)
significant harm to the person if they give evidence
1995 act s.271F
vulnerable witness the ACCUSSED THEMSELVES CAN BE A VULNRABLE WITNESS
1995 act s.271H
vulnerable witness special measures to be granted:
standard special measure
tv link evidence
using a screen to stay out of sight
using a supporter
other..
taking evidence by commisioner
excluding members of public when vulnerable witness giving statement
1995 act s.271HA
AS A RESULT OF 2014 ACT the scotministers may specify additional measures which for the time being are to be treated as SPECIAL MEASURES
1995 act s.271C
vulnerable witness STANDARD SPECIAL MEASURES, are automatically granted on request for a child deemed a vulnerable witness. in all other cases the court has DISCRESCRETION
1995 act s.271A
vulnerable witness:
a request can be made for a child or deemed vulnerable witness to give evidence WITHOUT special measures
1995 act s.271B
vulnerable witness
child under 12 in respect of sexual assult/ offences. the court should not normally require the witness to be in court for the purpose of giving evidence
high court of justiciary practice note No 2 of 2005
the removal of wigs and gowns by the judge, counsel and solicitors; (b) the positioning of the child at a table in the well of the court along with the judge, counsel and solicitors, rather than requiring the child to give evidence from the witness box; (c) the clearing from the court room of all persons not having a direct involvement in the proceedings.
