PREPARATION FOR, AND THE COURSE OF, A TRIAL OR PROOF

Question 1

precognition def

Answer 1

is a document prepared pre-trial setting out the evidence which it is hoped a witness will give:

Question 2

mc avoy v Glasgow

Answer 2

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

Question 3

Henderson v patrick

Answer 3

CIVIL- NO requirement to submit precognition. but refusal will be a matter for comment and crossexamination.

Question 4

hm v monson

Answer 4

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

Question 5

1995 act s.155(4)(summary) 267A (solemn)

Answer 5

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

Question 6

low v macneil

Answer 6

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

Question 7

kerr v HM ADV

Answer 7

WHAT USE CAN BE MADE OF PREGOGNTIONS

Question 8

MCAVOY V GLASGOW

Answer 8

There is, however, nothing to stop a precognoser giving hearsay evidence of what the witness said to him

Question 9

s. 9 civil evidence scot rules

Answer 9

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

Question 10

What use can be made of precognition

Answer 10

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.

Question 11

Clarke v Edinburgh and District Tramways 1914 SC 77

Answer 11

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

Question 12

Moffat v News Group Newspapers

Answer 12

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

Question 13

1995 Act, ss 66, 67 and 78(4

Answer 13

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

Question 14

ss 121-123 of the Criminal Justice and Licensing (Scotland) Act 2010

Answer 14

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

Question 15

Holland v hm adv

Sinclair

Answer 15

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

Question 16

define oath

Answer 16

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

Question 17

Meehan v hm adv

Answer 17

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

Question 18

r vkemble

Answer 18

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

Question 19

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.

Answer 19

(4) Recording of evidence

In sheriff court Ordinary Cause and Outer House, and in solemn criminal procedure.

Question 20

presence in court OLD def

Answer 20

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

Question 21

1995 Act, s 267/Evidence (Scotland) Act 1840, s3; terms almost identical as 1840 Act formerly applied to both civil and criminal cases

Answer 21

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.”

Question 22

Affleck v HM

Answer 22

presence in court.The parties can consent to the witness being present in court

Question 23

macdonald v mackenzie

Answer 23

PRESENCE IN COURT The judge can raise the issue even if no party object

Question 24

GERRARD V R W SIVES LTD

Answer 24

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

Question 25

Civil Evidence (Scotland) Act 1988 s 4; 1995 Act, ss 268-269

Answer 25

What if a witness gives evidence, remains in court, and is later recalled

Question 26

examination of witness the general irder

Answer 26

1. exam in chief 2. cross exam 3. re-exam

Question 27

scaldlan v hm adv

Answer 27

the exam of witness more complicated where there are more then 2 parties

Question 28

McKenzie v mckenzie

Answer 28

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

Question 29

frank v hm adv crim

Answer 29

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

Question 30

Macleod v hm adv

Answer 30

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

Question 31

niven vhart

Answer 31

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

Question 32

black v bairds & dalmellington

Answer 32

refreshing memory | Medical notes can be read

Question 33

Deb v Normand

Answer 33

REFRESHING MEMORY If the notes are not referred to by the witness, the other party has no right to see them

Question 34

define cross exam

Answer 34

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

Question 35

McKenzie v mckenzie

Answer 35

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.

Question 36

Bryce v british railway board MODERN APPRACH

Answer 36

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

Question 37

keenan v Scottish wholesale cooperative society

Answer 37

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

Question 38

walker v mcgruther & marshall

Answer 38

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

Question 39

young v guild

Answer 39

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

Question 40

MCPHERSON V COPELAND

Answer 40

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

Question 41

WILSON V BROWN

Answer 41

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

Question 42

GIBSON V BICC

Answer 42

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

Question 43

1995 263(5)- CRIM EVIDENCE SCOT 1852 S,4 CIVIL EVIDENCE 1988 S.4(1a)- civil

Answer 43

recall by witness CRIM- stat power CIVIL -stat power

Question 44

THOMSON V HM

Answer 44

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

Question 45

BIRREL V HM

Answer 45

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

Question 46

1995 ACT S.269

Answer 46

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

Question 47

1995 ACT S.268

Answer 47

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

Question 48

TALLIS V HM ADV

Answer 48

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.

Question 49

ELLIOT V TUDHOPE

Answer 49

QUESTIONS BY JUDGE- leading questions by the judge may be permissable

Question 50

MCCALLUM V PATERSON

Answer 50

QUESTIONS BY JUDGE | retrile can always ask witness if they have cred including conviction

Question 51

mcleod v hm adv

Answer 51

QUESTIONS BY JUDGE | cross exam should be allowed if judges q elicits new evidence

Question 52

rollo v wilson

Answer 52

QUESTION BY JUDGE. | the judge has power at common law to recall a witness ex proprio motu but only clear ambiguities

Question 53

dickie v HM adv

Answer 53

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

Question 54

hm adv v grimmond | 1995 act s.275C

Answer 54

CROSS EXAM ON CHARACTER AND CRED cannot lead evidence on this point (expert evidence on sub sbehaviour of complainer often sexual cases)

Question 55

hm adv v ashrif

Answer 55

CROSS EXAM ON CHARACTER AND CRED can lead evidence on previous conviction

Question 56

s.111(8) and 192(3) 1995 act

Answer 56

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

Question 57

THOMPSON V CROWE

Answer 57

OBJECTIONS TO Q trial within a trial any Q about evidence should be debate WITHOUT JURY so they need not know it existed.

Question 58

HM ADV V SINCLAIR

Answer 58

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

Question 59

HUTCHISON V HM

Answer 59

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

Question 60

AULD V MCBEY

Answer 60

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

Question 61

s,24 vulnerable witness act 2004

Answer 61

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

Question 62

1995 act s.271(1)

Answer 62

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

Question 63

1995 act s.271F

Answer 63

vulnerable witness the ACCUSSED THEMSELVES CAN BE A VULNRABLE WITNESS

Question 64

1995 act s.271H

Answer 64

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

Question 65

1995 act s.271HA

Answer 65

AS A RESULT OF 2014 ACT the scotministers may specify additional measures which for the time being are to be treated as SPECIAL MEASURES

Question 66

1995 act s.271C

Answer 66

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

Question 67

1995 act s.271A

Answer 67

vulnerable witness: | a request can be made for a child or deemed vulnerable witness to give evidence WITHOUT special measures

Question 68

1995 act s.271B

Answer 68

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

Question 69

high court of justiciary practice note No 2 of 2005

Answer 69

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.