The Course of Evidence Flashcards
Judge’s role in trial by jury
When a judge is presiding over a trial by jury, he or she 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
Four Categories of offences
Judge alone
Category 1 - not punishable by imprisonment
Category 2 - Max of less than 2 years imprisonment
Election for Jury
Category 3 - 2 years imprisonment or more
Category 4 - limited list of offences in schedule 1 of Act
Section 33
Evidence Act
Restriction on comment on defendant’s right to silence at trial
33 - Restriction on comment on defendant’s right to silence at trial-
In a criminal proceeding, no person other than the defendant, defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial
Section 89
Evidence Act 2006
Leading questions in examination in chief and re-examination
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 the parties; or
c) the Judge, in exercise of the Judge’s discretion, allows the question.
(2) Subsection (1) does not prevent the 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.
Section 35
Evidence Act 2006
Previous consistent statements rule
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
Hostile Witness
Whether the witness is hostile in one of the ways defined in section 4 of Evidence Act 2006 is a question of law for the Judge, on application from a party in the proceeding
Purpose of cross-examination
- 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
All parties, other than the one calling the witness have the right to cross-examine. Thus, in trials with multiple defendants each defendant has the right to cross the witness of both prosecution and co-defendants
Statutory controls of cross-examination
Evidence Act 2006
92 - Cross-examination duties
95 - limits on cross-examination by parties in person
85 - the prohibition on unacceptable questions
93 - Leading questions (co-defendants running a co-ordinated defence)
Section 92
Evidence Act 2006
Cross-examination Duties
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
Section 85
Evidence Act 2006
Unacceptable Questions
85 - Unacceptable questions
(1) In any proceeding the Judge may disallow or direct the 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
b) any physical, intellectual, psychological or psychiatric impairment of the witness
c) the linguistic or cultural background or religious beliefs of the witness
d) the nature of the proceeding
e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding
Section 96
Evidence Act 2006
Cross-examination on previous statements of witnesses
96 - Cross-examination on previous statements of witnesses
(1) A party that 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 its 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 witnesses testimony
(3) If a document is used 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) right to make a no-case application and
b) right in relation to the order of addressing the court
Evidence in Rebuttal
Called by either party after the completion of their own case, in order to rebut something raised in the trial, can be admitted with the leave of the court.
Leave may be given to 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
- was not available or admissible before the prosecutions case was closed
-is required to be admitted in the interests of justice for any other reason (this last one applies to Defendant also)
Judicial Directions and warnings
Judge may direct a jury
Section 122 - judicial warning that evidence may be unreliable
Section 123 - judicial directions about certain ways of giving evidence
Section 124 - judicial warnings about lies
Section 125 - judicial directions about children’s evidence
Section 126 - judicial warnings about identification evidence
Section 127 - delayed complaints or failure to complain in sexual cases
