The Course of Evidence

Question 1

What must the Judge do when presiding over a trial?

Answer 1

• Decide all questions concerning the admissibility of evidence
• Explain and enforce the general principles of law applying to the point at issue
• Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 2

What are the essential features of an adversarial justice system?

Answer 2

• The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
• 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.
• Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.

Question 3

What are the requierments in relation to Oaths and Affirmations?

Answer 3

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77). Witnesses under the age of 12 must:
• be informed by the judge of the importance of telling the truth and not telling lies, and
• after being given that information, make a promise to tell the truth, before giving evidence.

Question 4

When may a demonstration or reconstruction be held?

Answer 4

If relevant and if their probabtive value outweighs the risk of unfair prejudicial effect on the proceeding.

Question 5

Who may comment on the Defendants right to silence at trial?

Answer 5

In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Question 6

What is limited by S32 in relation to the defendant exercising his right to silence,

Answer 6

Section 32 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. In addition, the judge must direct the jury that it may not draw an inference of guilt from the failure.

Question 7

What is the purpose of Evidence in Chief?

Answer 7

The purpose of evidence in chief is to elicit testmony that supports the case of the party calling that witness.

Question 8

What is the general rule in realtion to leading questions?

Answer 8

Leasing questions may not be asked during evidence in chief or re-examination.

Question 9

What is a leading question?

Answer 9

A question that indirectly or directly suggests a particular answer to a question.

Question 10

Why are leading questions prohibited?

Answer 10

Leading questions are prohibited based on the belief that it will produce unreliable evidence for the following reasons;

• 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 11

When are leading questions permitted?

Answer 11

(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.

Question 12

What are some circumstances where leading questions may be allowed?

Answer 12

It is likely that leading questions may be allowed under s89(1)(c) in the following circumstances:
• To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
• To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from young or vulnerable witnesses.
• Where the witness has been declared hostile.

Question 13

What does S90(5) of the Evdience Act allowfor in relation to refreshing memory in court.

Answer 13

Section 90(5) of the Evidence Act 2006 provides that “for the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.”

Question 14

What conditions must be satisfied when a witnesses is conculting a document to refresh their memory in court?

Answer 14

• the leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.

Question 15

What may a witness do to refresh their memory out of court?

Answer 15

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before, or they may check their recollection of events with the officer who interviewed them, and so forth. The documents which the witness uses to refresh his or her memory may have been made by either the witness or by someone else; the requirement is simply that the document relates to matters which are within the witness’s own knowledge.

Question 16

When are previous consistent statments admissible?

Answer 16

A previous statement of a witness that is consistent with the witness’s evidence is admissible if the 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 17

What may be done when questioning a hostile witness?

Answer 17

the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers necessary for the purposes of doing justice (s94). This may include:

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

Question 18

What is a hostile witness?

Answer 18

In relation to a witness, means the witness
• 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
• 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
• refuses to answer questions or deliberately withholds evidence.

Question 19

What is the differecne between a hostile witness and an unfavorable witnesses?

Answer 19

Witnesses who simply fail to come up to brief 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 is hostile.

Question 20

What are the two purposes of cross-examination?

Answer 20

• to elicit information supporting the case of the party conducting the cross-examination
• to challenge the accuracy of the testimony given in evidence-in-chief (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).

Question 21

When is there a duty to cross examine?

Answer 21

Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on or explain it

The duty to cross-examine will therefore arise under the Act when:
•the cross-examination deals with “significant matters” in the proceeding, and
• the matters are “relevant” and “in issue” in the proceeding, and
• the matters “contradict the evidence of the witness”, and
• The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.

Question 22

What questions are considered unacceptable?

Answer 22

In any proceeding, the Judge may disallow, or direct that a witness is not obliged to
answer, any question that the Judge considers:

improper, unfair, misleading, needlessly
repetitive, or expressed in language that is too complicated for the witness to
understand.

Question 23

What may a judge have regard to in realtion to determining unacceptable questions?

Answer 23

Judge may have regard to—

(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 24

What limits exist on re-examiniation?

Answer 24

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge.

Question 25

What is Evidence in rebuttal

Answer 25

Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court.

Question 26

When is leave likley to be given for evidence in rebuttal

Answer 26

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’s case was closed, or
• is required to be admitted in the interests of justice for any other reason.

Question 27

What are the 6 areas where Judicial warnigns may be given?

Answer 27

• 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 children’s evidence – s125
• judicial warnings about identification evidence – s126
• delayed complaints or failure to complain in sexual cases – s127.

Question 28

What warning will a judge give if he is of the opinion the evidence is unreliable?

Answer 28

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, the Judge may warn the jury of the need for caution in deciding—

• *(a) whether to accept the evidence:
  (b) the weight to be given to the evidence.**

Question 29

What types of evidence may attached a warning from the judge about:

(a) whether to accept the evidence:
(b) the weight to be given to the evidence.

Answer 29

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 30

What is prohibited in relation to a child evidence?

Answer 30

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 scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.

Question 31

What should be included when a warnign is given in relation to suggestions that the defendant lied?

Answer 31

When a warning must be given, it should include direction that:

• The jury needs to be satisfied that the defendant did lie before they use the evidence,
• People lie for various reasons, and
• The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.