Syllabus Area 19 - Evidence of Fact Flashcards
What power does the court have to control evidence (what can be ordered)?
The court may control evidence through giving directions. The directions can be issues which require evidence, the nature of the evidence, the way it is presented, evidence to be excluded and limiting cross examination on evidence.
What is the general rule regarding evidence of witnesses?
Evidence will usually be given orally by witnesses at trial BUT any other hearing, it will be given written.
What directions can the court make as to evidence of witnesses?
identifying/limiting issues to factual evidence, identifying witnesses to be called/read out, limiting the length or format of witness statements.
What other form can evidence of witnesses be given?
Through a video link.
What can parties rely upon in trials in terms of evidence?
Their witness statement or application notice as long as it is verified by a statement of truth.
Who can order cross examination and what order can be made for cross examination?
At any hearing other than the trial, ANY party can apply to court in writing to cross examine a witness.
What happens if a witness does not turn up for cross examination?
Their evidence may not be used.
What must a witness statement have?
A verified statement of truth.
What happens if a party makes a false statement?
If it is verified by a statement of truth but without honest belief, this can lead to contempt of court.
What is an affidavit?
A form of a written statement, similar to a witness statement, but it is sworn evidence.
What can a witness give instead of a witness statement?
A witness summary or affidavit.
What format must be followed for witness statements and affidavits?
PD32.
What is a deposition?
A deposition is where a person is examined before a hearing takes place.
What is the procedure of a deposition?
A party applies for an order of a deposition, the deponent is then examined by a judge/court officer, which is then recorded in full and a copy is sent to the court, the party obtaining a deposition and all other affected parties.
What may a deposition require?
A production of any relevant documents.
What must a deposition order contain?
A date, time and place of examination.
What kind of manner must a deposition take place in?
Similarly to an examination at trial and it can be private in the right circumstances.
Who does the deposition apply to?
Technically anyone as it can be conducted that a person not named in the order to be examined if all partis consent to this and are present.
When can a deposition be used and when should it be served?
It can be used at a hearing - if they are intending to use it they must serve a notice of at least 21 days before fixed hearing.
If a deposition is used at a hearing, what can the court require?
For the deponent to attend the actual hearing and give evidence orally.
Can a deposition be inspected?
Yes, it is treated the same as a witness statement.
What is a witness statement?
A witness statement is a written signed statement containing evidence which will orally be given at trial.
What can the court order in terms of witness statements?
For them to be served on all parties and give directions as to how they are to be served/filed.
If a party wishes to rely upon a witness statement at trial, what must happen?
If a party wishes to rely upon it, they must call the witness to give oral evidence or put the statement as hearsay.
How else can a witness statement be used at trial?
As an examination in chief.
What power does the court have in terms of amplification of evidence?
The court has the power to limit the information in the witness statement or oral evidence to relevant matters only.
What happens if a witness wants to expand upon their evidence at trial?
With courts permission, he may be able to expand upon his statement and give evidence as to new matters since the witness statement was served IF THERE IS GOOD REASONS.
What happens if a witness wants to expand upon their evidence at trial but is not allowed?
Counsel may deal with it as a preliminary issue as late changes are seen to be unfair to the other side.
What happens if a witness is not called?
if the party that serves the witness statement does not call the witness or put the evidence as hearsay, that means any party can put a statement in as hearsay and that witness can be examined.
What happens if a party fails to attend a trial but has filed a witness statement?
The statement will not be treated as hearsay to be relied upon at trial.
What is a witness summary?
A witness summary is where someone who is finding it difficult to serve a witness statement can apply with permission to serve a witness summary which is a summary of evidence.
What must a witness summary include?
Name, address of intended witness, served within same period of witness statement, same rules as expanding on statements and formats as witness statements.
If a witness summary is wanted, what must a party do?
Apply for permission as it must be expressly sought as this is not standard directions.
What is the consequence of failing to serve a witness statement or summary?
The witness will not be allowed to be called.
What can a witness be cross examined on?
Any part of their witness statement even if it was not examined during examination in chief.
Can a witness statement be used for any other purpose?
No, only for the purpose of the proceedings in which it is served unless there is consent in writing or court gives permission.
Can a witness statement be available for inspection?
Yes, during trial.
What if a party does not want a witness statement to be available for inspection?
A party may ask for this but the court will not approve this unless it is in the interests of justice, public interest, nature of financial info, and need to protect CC/PP.
What is a witness summons?
A document produced by court to require someone to attend court to give evidence or produce a document which each party is given a separate summons.
Who issues a witness summons?
Usually court, but parties can ask.
When must a party obtain permission from court in terms of witness summons?
If the summons are issued less than 7 days before trial, if summons are issued for a witness to attend court/produce docs on any date except for trial/any other hearing.
Who can set aside/vary a summons?
Court may do this.
What if a court is inferior to issue a witness summons?
Another court can do this if the court who is wishing to do this is inferior.
When must a witness summons be served?
A witness summons becomes binding if it is 7 days before a witness is due to be required in court.
What is the right of a witness in terms of compensation?
A witness must be offered or paid a reasonably sufficient amount to compensate loss of time/travel expenses.
What is a notice to admit facts?
This is where a party serves a notice on another party requiring him to admit certain facts or parts of the case to dispose of those facts.
What is the time limit for a notice to admit facts?
21 days before a fixed trial.
When can an admission of facts be used?
Only in the current proceedings.
What is deemed to be admitted unless asked?
Authenticity of documents.
What is the procedure if someone wants to prove a documents authenticity?
It must be served a the latest date of serving a witness statement/within 7 days of disclosure of document.
