The course of a trial Flashcards
Browne v Dunn
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.
Leading question under the UEA
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
what is a hostile witness at common law? (front conference room)
one who is unwilling the tell the truth for the advancement of justice (R v Hayden and Slattery).
what are the 2 common law factors that can indicate a witness is hostile?
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)
what needs to be shown before you can cross examine a hostile witness? (2 numbers on the floor tiles)
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).
rebutting a suggestion of a recent invention (what’s on the television)
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
Finality rule and 4 exceptions (in the bin room)
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
Leading questions at common law (elevators)
counsel B may ask leading questions of W, and ask any questions the judge is prepared to allow Mooney v James
Common law rule to recall a witness
- 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.
Inappropriate/improper questions
s 21
What happens if a question is raised about whether a witness is competent to give evidence
the witness may give unsworn evidence under s 9B. Judge instructs them that they have to tell the truth
common law test for bias
motive for giving false evidence R v Umanski.
Key issues in examination in chief (4)
-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.
Key issues in cross-examination (4)
improper questions
previous inconsistent statements
the finality rule
Browne v Dunn
Re-examination involves (2)
same issues in examination in chief
limitation to questions arising in cross
When a person fails to give evidence, explain what happens in both a civil and criminal trial
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.
Common law tests to refresh memory
- witness needs to demonstrate a need to refresh memory
- document needs to be verified as accurate
- it must be demonstrated that she made her statement contemporaneously with the events
Re Van Beelan (test has been distilled down into the UEA)
Previous consistent statement in examination in chief
not permissible because it is assumed that the witness is telling the truth under oath (R v Conolly).
what is the purpose of s 15(2) of the EAQ?
a shield for the accused against being asked questions in cross examination about a previous charge or conviction
When the EAQ says that a question may only be asked with permission of the Court, what should you do?
Ask for a voir dire.
Best evidence rule
original documents must be tendered in the absence of an excuse to supply a copy Butera v DPP.
When would section 20 come into play
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
Consider this provision whenever credibility is an issue
s 20
