The course of a trial

Question 1

Browne v Dunn

Answer 1

counsel B must put to witness A, for their comment, any assertion of fact which forms part of the case for B and contradicts witness A’s evidence.

Question 2

Leading question under the UEA

Answer 2

a question which suggests an answer to the question or assumes the existence of a fact before evidence of such fact has been given by the witness

Question 3

what is a hostile witness at common law? (front conference room)

Answer 3

one who is unwilling the tell the truth for the advancement of justice (R v Hayden and Slattery).

Question 4

what are the 2 common law factors that can indicate a witness is hostile?

Answer 4

prior inconsistent statement (McLellan v Bowyer) - always cite 101(1)(a); s 17
witness is biased or has a motive for giving false evidence (R v Umanski)

Question 5

what needs to be shown before you can cross examine a hostile witness? (2 numbers on the floor tiles)

Answer 5

That they’re unwilling to tell the truth in the interests of justice (R v Hayden & Slattery). If the witness has made a prior inconsistent statement or is biased, you can seek leave of the court to prove such a statement was given (s 17, 18). You can then cross examine the witness as to their credit (s 20).

Question 6

rebutting a suggestion of a recent invention (what’s on the television)

Answer 6

may be done by adducing evidence that the witness has maintained the same story in the past s 101(1)(b)
prior consistent statement under the UEA s 108

Question 7

Finality rule and 4 exceptions (in the bin room)

Answer 7

answers given by a witness to questions put to him or her in cross examination concerning collateral matters (credibility as a person rather than as a witness) are final. Those answers cannot be contradicted or rebutted by other evidence Piddington v Bennett and Wood.

Exceptions
1. prior inconsistent statement McLellan v Bowyer - always cite 101(1)(a)
2. Bias R v Umanski
3. Prior convictions s 16
4. reputation for lack of veracity R v BDX

Question 8

Leading questions at common law (elevators)

Answer 8

counsel B may ask leading questions of W, and ask any questions the judge is prepared to allow Mooney v James

Question 9

Common law rule to recall a witness

Answer 9

• an accused is entitled to know, at the close of the Crown’s case, all the evidence he has to rebut R v Chin
• Crown will be entitled to reopen its case when it could not reasonably have been expected to anticipate a line of defence.

Question 10

Inappropriate/improper questions

Answer 10

s 21

Question 11

What happens if a question is raised about whether a witness is competent to give evidence

Answer 11

the witness may give unsworn evidence under s 9B. Judge instructs them that they have to tell the truth

Question 12

common law test for bias

Answer 12

motive for giving false evidence R v Umanski.

Question 13

Key issues in examination in chief (4)

Answer 13

-leading questions (perhaps s 17)
-previous consistent statements (R v Connolly)
-hostile witnesses (R v Hayden and Slattery); - There may also be a need to refresh memory.

Question 14

Key issues in cross-examination (4)

Answer 14

improper questions
previous inconsistent statements
the finality rule
Browne v Dunn

Question 15

Re-examination involves (2)

Answer 15

same issues in examination in chief
limitation to questions arising in cross

Question 16

When a person fails to give evidence, explain what happens in both a civil and criminal trial

Answer 16

Jones and Dunkel
Civil - if you fail to give or lead evidence, then the court may draw any necessary inferences adverse to the case.
Criminal - prosecutor may not comment but any other defendant may do so. Judge may direct jury they may find it easy to accept the prosecutions theory of the case (Weissensteiner). If the accused fails to call/give evidence that would not assist his case, then it’s inappropriate for a judge to give a direction that the evidence would not have assisted his case because it interferes with his right to silence (Dyers). Accused person need not give or call evidence in their defence.

Question 17

Common law tests to refresh memory

Answer 17

1. witness needs to demonstrate a need to refresh memory
2. document needs to be verified as accurate
3. it must be demonstrated that she made her statement contemporaneously with the events
   Re Van Beelan (test has been distilled down into the UEA)

Question 18

Previous consistent statement in examination in chief

Answer 18

not permissible because it is assumed that the witness is telling the truth under oath (R v Conolly).

Question 19

what is the purpose of s 15(2) of the EAQ?

Answer 19

a shield for the accused against being asked questions in cross examination about a previous charge or conviction

Question 20

When the EAQ says that a question may only be asked with permission of the Court, what should you do?

Answer 20

Ask for a voir dire.

Question 21

Best evidence rule

Answer 21

original documents must be tendered in the absence of an excuse to supply a copy Butera v DPP.

Question 22

When would section 20 come into play

Answer 22

If a question is put to a witness as to credit but it would not materially impair the witnesses credit, the the judge may disallow it

Question 23

Consider this provision whenever credibility is an issue

Answer 23

s 20