The course of Evidence

Question 1

What is a judges role in a jury trial?

Answer 1

They must:

• 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 two systems of justice?

Answer 2

Adversarial or Accusatorial

Question 3

What are the essential features of the adversarial justice system?

Answer 3

• Facts and evidence emerge through questioning witnesses
• Each party decides who they call, in what order and what should be asked
• The judge’s function is to ensure that the evidence is produced according to the established rules
• The judge or jury can’t make their own inquiries and go outside the evidence
• The judge should only ask questions of witnesses when justice requires it (in the judges opinion)
• The defendant does not have to give evidence-Facts may be judicially noticed

Question 4

In relation to oaths or affirmations, what age affects how you are sworn in and what is the difference?

Answer 4

12+ must take an oath/affirmation

Under 12 must be

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

Question 5

Can a witness of any age give evidence without taking an oath?

Answer 5

yes, with the judges permission but they must be told the importance of telling the truth.

Question 6

What is contained in s84 in relation to the examination of witnesses?

Answer 6

84
Examination of witnesses
(1)
Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a)
a witness first gives evidence in chief; and
(b)
after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c)
after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2)
If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Question 7

What is the general sequence of jury trials?

Answer 7

• Jury and foreperson selected and judge commences trial with brief opening instructions.
• Crown makes opening address
• Crown proceed to present case and each witness is called and gives evidence in chief then cross-examined then reexamined if necessary. The judge may also ask questions.
• Defence open their case (if they wish to run one)
• Defence present their case and call witnesses who are examined then cross-examined by prosecution as set out above.
• Crown concludes by making a closing address (no new information may be introduced)
• Defence close for the purpose of summarising the defence case
• Judge sums up for the jury before the jury leave to consider their verdict.

Question 8

Does the defence have to call any evidence?

Answer 8

No

Question 9

What is ‘a view’

Answer 9

Is an inspection of a place or thing that is not in the court room.

Any information obtained during a view may be used as though the information had been given in evidence.

Question 10

What restrictions are placed on commenting about the defendants failure to give or offer evidence?

Answer 10

33
Restrictions on comment on defendant’s right of silence at trial

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 11

What inferences can be made from the defendant claiming their right to silence?

Answer 11

No person can invite a fact finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to a statement or disclose a defence before trial.

Question 12

What is the general rule about leading questions?

Answer 12

They may not be asked during the giving of evidence in chief or re-examination.

Question 13

What is the definition of a leading question?

Answer 13

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

Question 14

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for what reasons?

Answer 14

• There is a natural tendency for a person to say yes to a suggestion put to them even if it does not precisely accord with their own view of what happened
• Counsel asking leading questions can more easily elicit an answer they want reducing the spontaneity and genuineness of the testimony
• Danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and witness

Question 15

What is the goal of giving evidence in chief?

Answer 15

Is to draw out the witness’s own recollection and to permit the trier of facts to judge the quality of the witness’s testimony.

Question 16

When are leading questions permitted?

Answer 16

89
Leading questions in examination in chief and re-examination
(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.
(2)
Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

Question 17

What are the circumstances where leading questions may be allowed under S89(1)(c)?

Answer 17

• To direct a witness’s attention to the subject of identification evidence
• In respect of questions around surrounding evidence to jog a witness’s 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 cheift from young persons, people who have difficulty speaking English and people who are of limited intelligence.
• Where the witness has been declared hostile

Question 18

What is found in the section that details how a witness can refresh their memory in court?

Answer 18

90
Use of documents in questioning witness or refreshing memory
(5)
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 19

If a witness wishes to refresh their memory using a document what conditions must be satisfied?

Answer 19

• Leave of the judge is obtained
• Document shown to every other party in the proceedings
• The document was made or adopted at a time when the witnesses memory was fresh

Question 20

Who must complete a document so that a witness can refresh their memory from it.

Answer 20

The witness themselves or someone acting on behalf of the witness in the witness’s presence and assented to by the witness.

Question 21

How can a witness refresh their memory out of court?

Answer 21

by referring to documents made by any person as long as the document relates to matters which are within the witness’s own knowledge.

Question 22

What does the previous consistent statement rule prevent?

Answer 22

Prevents the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness’s consistency.

Question 23

What is the previous consistent statement rule?

Answer 23

35
Previous consistent statements rule
(1)
A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2)
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 24

How may a witness that has been declared hostile be questioned?

Answer 24

May be asked questions in the manner of cross examination to the extent that the judge considers necessary and may include:

• leading questions
• asking questions designed to probe the accuracy of memory and perception
• asking questions as to prior inconsistent statements
• other challenges to veracity, including evidence from other witnesses

Question 25

What is a hostile witness?

Answer 25

A witness which:
-Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourably to the party who called the witness on a matter 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 the 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 26

Difference between a hostile witness and unfavourable witness?

Answer 26

Witnesses who simply fail to come up to brief may not necessarily be hostile.

Question 27

What is the purpose of cross-examination?

Answer 27

• 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

Question 28

Who has the right to cross-examine a witness?

Answer 28

All parties except the party who called the witness

Question 29

What are the statutory controls for cross examination?

Answer 29

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

Question 30

If a party intends to give evidence that contradicts the evidence in chief of another witness, what must be done.

Answer 30

The contradictions must be put to the other witness during cross-examination so they have the opportunity to comment.
Unless this is done, little or no weight will be given to that evidence.
If this is missed then the opposing party may be granted leave to recall the witness.

Question 31

What are the cross examination duties?

Answer 31

92
Cross-examination duties
(1)
In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2)
If a party fails to comply with this section, the Judge may—
(a)
grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b)
admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c)
exclude the contradictory evidence; or
(d)
make any other order that the Judge considers just.

Question 32

When does the duty to cross-examine arise?

Answer 32

• The cross-examination deals with significant maters in the proceeding and
• the matters are relevant and in issue in the proceedings 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 33

What are unacceptable questions and what are the things which a judge can take into consideration when determining if the question is unacceptable?

Answer 33

85
Unacceptable questions
(1)
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.
(2)
Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the 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 34

What is found in the section that governs the cross-examination on previous statements of a witness?

Answer 34

96
Cross-examination on previous statements of witnesses
(1)
A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.
(2)
If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement,—
(a)
the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and
(b)
the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony.
(3)
If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a)
the defendant’s right to make a no-case application; and
(b)
the defendant’s rights in relation to the order of addressing the court.

Question 35

What statements does Cross Examination on previous statements of witness (s96) cover?

Answer 35

All statements, not just prior inconsistent statements.

Question 36

What can be covered during re-examination of a witness?

Answer 36

Only to clarify or qualify and issues raised during the cross-examination and can’t be questioned on any other matter unless permission of the judge is granted.

Question 37

How can rebuttal evidence be introduced once a parties case has been completed?

Answer 37

It can only be admitted with the leave of the court.

Question 38

When may leave of the court be given to the prosecution to offer rebuttal evidence?

Answer 38

• Relates to a purely formal matter
• Relates to a matter arising out of the conduct of the defence, the relevance of which could not have reasonably been foreseen
• Was not available or admissible before the prosecution’s case was closed
• is required to be admitted in the interest of justice for any other reason

Question 39

When can a judge recall a witness who has given evidence?

Answer 39

Where they consider that it is in the interest of justice to do so.

Question 40

What are the 6 sections which a judge may give a judicial warning?

Answer 40

122
Judicial directions about evidence which may be unreliable

123
Judicial directions about certain ways of offering evidence

124
Judicial warnings about lies

125
Judicial directions about children’s evidence

126
Judicial warnings about identification evidence

127
Delayed complaints or failure to complain in sexual cases

Question 41

What is contained in the section where a judge may give a judicial directions about evidence which may be unreliable

Answer 41

122
Judicial directions about evidence which may be unreliable
(1)
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.
(2)
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.
(3)
In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a)
if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b)
if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4)
It is not necessary for a Judge to use a particular form of words in giving the warning.
(5)
If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6)
This section does not affect any other power of the Judge to warn or inform the jury.

Question 42

Under Judicial directions about certain ways of offering evidence (s123) what does the judge advise the jury?

Answer 42

That no adverse inference should be drawn against the defendant where a witness has offered evidence in an alternative way, where a defendant has not been allowed to personally cross-examine a witness or where a witness offers evidence in accordance with a witness anonymity order

Question 43

What is found in the section for judicial warnings about lies?

Answer 43

124
Judicial warnings about lies
(1)
This section applies if evidence offered in a criminal proceeding suggests that a defendant has lied either before or during the proceeding.
(2)
If evidence of a defendant’s lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3)
Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant’s lie, or if the defendant so requests, the Judge must warn the jury that—
(a)
the jury must be satisfied before using the evidence that the defendant did lie; and
(b)
people lie for various reasons; and
(c)
the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4)
In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant’s lie.

Question 44

What are the judicial directions about children giving evidence?

Answer 44

125
Judicial directions about children’s evidence
(1)
In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult.
(2)
In a proceeding tried with a jury in which a witness is a child, the Judge must not, unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment:
(a)
instruct the jury that there is a need to scrutinise the evidence of children generally with special care; or
(b)
suggest to the jury that children generally have tendencies to invent or distort.
(3)
This section does not affect any other power of the Judge to warn or inform the jury about children’s evidence exercised in accordance with the requirements of regulations made under section 201.