the course of evidence

Question 1

what is a judges role in a trial by jury

Answer 1

the judge must:

• decide all questions concerning the admissibility of evidence
• determine whether there is any evidence that is fit to be submitted to the jury for it’s consideration
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which evidence is to be weighed out once submitted

Question 2

what are the features of an adversarial justice system

Answer 2

1. the facts of the case and evidence relevant to those facts emerge by questions put by the prosecution and defence to witnesses called by them.
2. It is up to each party to decide what witnesses to call, the order in which they should be called and what questions they should be asked.
3. each party has the right to test the testimony of witnesses of the opposing party through cross examination.
4. during the trial the judges function is to ensure the evidence is produced according to the established rules, ruling on admissibility if necessary.
5. neither judge nor jury are entitled to go above the evidence presented by the parties and all witnesses or pursue enquiries on their own.

Question 3

what must occur before witnesses under 12 give evidence

Answer 3

witnesses under 12 yrs old must:

• be informed by the judge of the importance of telling the truth and not telling lies, and
• after being given that information and before giving evidence, make a promise to tell the truth

Question 4

where the judge permits a witness to give evidence without taking an oath, affirmation or promise to tell the truth, what must the judge do

Answer 4

1. inform the witness of the importance of telling the truth and not lies before the witness gives evidence.
2. the evidence of the witness must be treated as if it had been given on oath.

Permission will be given for witnesses such as adult with intellectual disability, or a child witness unable to tell the truth.

Question 5

who may comment on a defendants decision not to give evidence

Answer 5

• the defendant,
• the defendants counsel, or
• the judge

Question 6

what is the general purpose of the examination in chief

Answer 6

to elicit testimony that supports the case of the party calling that witness

Question 7

what is a leading question

Answer 7

a leading question is one that directly or indirectly suggests a particular answer to the question (s4)

Question 8

what is the leading question on the prohibition of leading

Answer 8

leading questions may not be asked during evidence in chief or re examination

Question 9

why are leading questions not permitted

Answer 9

• there is a natural tendency for people to agree with suggestions put to them by saying yes, even if those suggestions do not precisely accord with their own view of what happened
• counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony
• there is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness

Question 10

what are the exceptions to the general rule around leading questions

Answer 10

s89(1) of EA 2006

a leading question may not be put to a witness in examination in chief or re examination unless:

a) the questions relate to introductory or undisputed matters, or
b) the question is put with consent from all parties, or
c) the judge, in the exercise of the judge’s discretion, allows it

Question 11

if a witness has memory loss can they be called hostile

Answer 11

a witness with memory loss is not necessarily hostile and leave may be sought to allow the witness to refresh their memory.

s90(5) of EA 2006 - for the purpose of refreshing his or her memory while giving evidence a witness may with prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh

Question 12

what must be done to ensure accuracy if a witness wishes to consult a document whilst giving evidence

Answer 12

• the leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• the document was made or adopted by a witness at a time when his/her memory was fresh

r v cameron held that there is a non exhaustive set of factors that can be considered including the significance of the events to the witness, the time elapsed between the events and the making or adoption of the document, evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document

Question 13

refreshing memory before court

Answer 13

witnesses may before giving evidence in court refresh their memory by reference to statements, briefs of evidence or deposition statements prepared on the basis of statements which they may have made some months before or may check recollection of events with officer who interviewed them, requirement simply that documents relates to matters which are within the witnesses own knowledge

Question 14

when are previous consistent statements admissible

Answer 14

s35(1) of EA 2006 - a previous statement of a witness that is consistent with the witnesses evidence is not admissible unless subsection 2 applies

s35(2) of EA 2006

a previous statement of a witness that is consistent with the witnesses evidence is admissible if their statement:

a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
b) forms an integral part of the events before the court; or
c) consists of the mere fact that a complaint has been made in a criminal case.

Question 15

when can a witness be declared hostile

Answer 15

if witness displays hostility towards the party that has called him or her, leave may be sought from the judge to declare that witness hostile

Question 16

once the judge has granted an application to treat a witness as hostile that witness may be what

Answer 16

they may be asked question in the manner of cross examination to the extent that the judge considers necessary for the purpose of doing justice (s94 EA 2006). this may include:

• asking leading questions
• asking questions designed to probe the accuracy of memory and perception
• asking questions as to prior inconsistent statement and
• other challenges to veracity including evidence from other witness (provided that any evidence offered is substantially helpful in assessing the witness’s veracity

Question 17

what is a hostile witness

Answer 17

s4 of EA 2006

in relation to a witness means a witness that:

a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
c) refuses to answer questions or deliberately withholds evidence

Question 18

what is the distinction between hostile and unfavourable witnesses

Answer 18

witnesses who simply fail to come up to brief may may be unfavourable to the party calling them, but they are not necessarily hostile. This indicates that the simple fact that a witness gives evidence adverse to a party suffers a loss of memory or provides evidence inconsistent with another statement does not by itself justify finding the witness hostile

Question 19

what is the purpose of cross examination

Answer 19

• to elicit information supporting the case of the party conducting cross examination
• to challenge the accuracy of the testimony given in evidence in chief (eg by casting doubt on the witnesses veracity or eliciting contradictory testimony)

Question 20

s85 of EA 2006

Answer 20

A judge may disallow or direct that a witness need not answer questions that the judge considers:

• improper
• unfair
• misleading
• needlessly repetitive
• language too complicated

Question 21

under s85(2) of EA 2006, what may the judge have regard to in relation to unacceptable questions

Answer 21

(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Question 22

for what reasons can evidence in rebuttal can be recalled

Answer 22

further evidence of either party after the conclusion of their case, can only be admitted with leave of the court. Such leave may be given to the prosecution if the further evidence:

• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
• was not available or admissible before the prosecution case was closed or
• is required to be admitted in the interests of justice for any other reason

Question 23

under what circumstances would a judge direct a jury that evidence should be scrutinised with particular care or should be given less weight

Answer 23

s122 - s127 of EA 2006:

• judicial warning that evidence may be unreliable (s122)
• judicial directions about certain ways of giving evidence (s123)
• judicial warnings about lies (s124)
• judicial directions about childrens evidence (s125)
• judicial warnings about identification evidence (s126)
• delayed complaints or failure to complain in sexual cases (s127)

Question 24

what types of evidence must the judge consider giving a warning to the jury for

Answer 24

s122(2) of EA 2006

In a criminal proceeding tried with a jury the Judge must consider whether to give a
warning under subsection (1) whenever the following evidence is given:

a) hearsay evidence

b) evidence of a statement by the defendant, if that evidence is the only evidence
implicating the defendant

c) evidence given by a witness who may have a motive to give false evidence that
is prejudicial to a defendant

d) evidence of a statement by the defendant to another person made while both the
defendant and the other person were detained in prison, a police station, or
another place of detention

e) evidence about the conduct of the defendant if that conduct is alleged to have
occurred more than 10 years previously.

Question 25

If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any
evidence given in that proceeding that is admissible may nevertheless be unreliable what may the judge do

Answer 25

the judge may warn the jury of the need in caution in deciding:

• whether to accept the evidence
• the weight to be given to the evidence

Question 26

what does s125 of EA 2006 direct with regards to evidence given by children

Answer 26

s125 of EA 2006 directs that evidence given by children shall be treated the same way as evidence given by adults, thus it prohibits:

• the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
• any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinize childrens evidence with special care or that children generally have a tendency to invent or distort

Question 27

for not guilty matters what must the OC do with regards to witnesses

Answer 27

• Advise witnesses of the time, date, and place of the trial, and the exhibits
  to be presented at the trial.
• Check whether they have given evidence before. If not, advise them of the
  procedure.
• Advise witnesses they may
  refresh their memory from a statement made before giving evidence.
• Ensure witness remains within call of courtroom.
• Check list to ensure none are known to witnesses.
• Warn not to mix with or speak to jurors.
• Advise of witness expenses.

Question 28

for not guilty matters what must the OC do “generally”

Answer 28

• Ensure that you look, stand and speak correctly.
• Identify the defendant.
• Locate your witnesses and help them as required.
• Do not mix or gossip with jurors or members of the defence.

Question 29

for not guilty matters what must the OC do when giving evidence

Answer 29

Take care that you actually answer the question being asked.

• Say you do not know, rather than guess.
• Do not be flippant.
• Address the judge as “Your Honour“ or “Sir/Ma’am”.
• Address the prosecutor and defence as “Sir/Ma’am”.
• Advise the judge of any mistakes you have made as soon as possible, or
  advise the prosecutor, if you have finished giving evidence.