The Course of Evidence

Question 1

Essential features of the adversarial justice system:

Answer 1

1. the facts of the case, and relevant evidence, emerge by questions
2. each party decides what witness to call, the order, and the questions put to them
3. each party has the right to test a testimony through cross-examination
4. the judge’s function is to ensure the evidence is produced according to the rules
5. neither the judge or jury is entitled to pursue enquiries of their own
6. judge should only ask questions when requires
7. the defendant does not have to give evidence
8. facts may be judicially noticed when known, accepted, and cannot reasonably be questioned.

Question 2

Sequence of jury trials?

Answer 2

1. jury empanelled, foreperson selected, judge gives opening instructions
2. crown provides opening address including detailed explanation of the charges and summary of the case
3. the case for the crown is presented
4. defence opens its case by making an open address to the jury
5. defence presents case
6. crown concludes by making a closing address
7. defence makes closing address to the jury
8. the judge summarises before the jury retires to consider its verdict.

Question 3

Commenting on a defendants right of silence

Answer 3

In a criminal proceeding, no person other than the defendants counsel or the judge may comment on the fact that the defendant did not give evidence at trial

Question 4

s32 of the Evidence Act:

Answer 4

provides that no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to statements, or disclose a defence before trial. The judge must direct the jury that it may not draw an inference of guilt from the failure.

Question 5

What is the purpose of evidence in chief?

Answer 5

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

given orally after witness has taken oath or affirmation

may be given in written form if both parties consent

Question 6

What is a leading question?

Answer 6

One that directly or indirectly suggests a particular answer to a question

Question 7

Three reasons for the prohibition of leading questions?

Answer 7

1. there is a natural tendency for people to agree with suggestions put to them, even if they do not precisely accord with their own view
2. counsel asking leading questions of their own witnesses can more easily elicit the answers they wish to receive, thereby reducing the spontaneity and genuineness of the testimony
3. danger that leading questions will result in the manipulation of construction of the evidence through collusion

Question 8

In what circumstances may a leading question be allowed?

Answer 8

1. to direct a witnesses attention to the subject of identification evidence
2. to jog a witnesses memory
3. to assist in eliciting evidence in chief of very young people, have limited english, or have limited intelligence
4. where the witness as been declared hostile.

Question 9

If a witness wants to refresh memory by consulting a document, what conditions must be satisfied?

Answer 9

1. the leave of the judge must be obtained
2. document must be shown to every other party in the proceeding
3. document must have been “made or adopted” by the witness “at a time when his or her memory was fresh”.

Question 10

Previous consistent statements

Answer 10

Are generally inadmissable, because the mere repetition of an allegation does not increase its truthfulness.

Prevents the parties from inundating the courts with voluminous amounts of repetitive material

Question 11

Three exceptions to previous consistent statements rule

Answer 11

1. the statement responds to a challenge made on the witnesses veracity or accuracy
2. the statement forms an integral part of the events before the court
3. the statement consists of the mere fact that a complaint has been made in a criminal case.

Question 12

Definition of hostile witness (as per s4):

Answer 12

a hostile witness means the witness:

1. exhibits or appears to exhibit a lack of veracity when giving evidence, or
2. 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
3. refuses to answer any questions or deliberately withholds evidence.

Question 13

If a judge declares a witness hostile, what types of questions may now be asked?

Answer 13

1. ask leading questions
2. ask questions designed to probe accuracy of memory and perception
3. challenge veracity, including evidence from other witnesses (provided it is “substantially helpful”

Question 14

What are the two purposes of cross-examination?

Answer 14

1. to elicit information supporting the case of the party conducting the cross-examination
2. to challenge the accuracy of the testimony given in evidence-in-chief

Question 15

Who has the right to cross-examine?

Answer 15

All parties, other than the one calling the witness

Question 16

What are the three statutory controls that cross-examination is subject to?

Answer 16

s92 - cross examination duties
s95 - limits on cross-examination by parties in person
s85 - the prohibition on unacceptable question

Question 17

s92: cross examination duties.

Answer 17

the duty to cross examine arises when:

1. the cross examination deals with “significant matters” in the proceeding
2. the matters are “relevant” and “in issue”
3. the matters “contradict the evidence of the witness”
4. the witness may “reasonably be expected to be in a position to give admissable evidence on those matters”

Question 18

s85: unacceptable questions

Answer 18

the judge may disallow or a direct that a witness is not obliged to answer if the judge considers a questions improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

Question 19

Judicial warnings: circumstances in which a judge may direct the jury that the evidence should be scrutinised with particular care

Answer 19

s122 - evidence may eb unreliable
s123 - certain ways of giving evidenec
s124 - lies
s125 - about childrens evidence
s126 - identification evidence
s127 - delayed complaints of failure to complain in sexual cases

Question 20

Practical matters for “not guilty” hearings.

Witness checklist for O/C

Answer 20

• advise witness of trial details
• check if they have given evidence before
• advise that they can refesh their written statement
• check jury list to ensure they are not known to witness
• warn witness not to speak to jurors
• advise of witness expenses

Question 21

Practical matters for “not guilty” hearings.

Giving evidence checklist

Answer 21

• actually answer question
• do not be flippant
• address judge as “Your Honour” “Sir/Ma’am”
• address prosecutor as “Sir/Ma’am”
• advise judge of any mistakes you have made asap