The Course of Evidence

Question 1

Judge’s Role in Trial by Jury

When a judge is presiding over a trial by jury, he or she must:

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

Oaths/Affirmations and Promises

Different age requirements

Answer 2

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.

Of Note:
With the Judge’s permission, a witness of any age may give evidence without taking an oath, affirmation or a promise to tell the truth. If give such permission, the judge must inform them of the importance of telling the truth and not telling lies - intellectual disability.

Question 3

Leading Question

Definition

Answer 3

S4 Evidence Act 2006

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

Question 4

Leading Question

General rule when may not be asked

and why - Based on the belief that it will produce unreliable evidence for the following reasons:

Answer 4

The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89).

Based on the belief that it will produce unreliable evidence for the following reasons:

• Agree - 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.
• Easily Elicit - 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.
• Danger - 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 5

When are leading questions allowed in evidence in chief

Legislation
Section 89
(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—

Answer 5

S89 Evidence Act 2006

(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 6

Why would the judge exercise his discretion to allow leading questions

4 points

Answer 6

• Identification - To direct the witness’s attention to the subject of Identification evidence (for example, “Was that the car you saw?”).
• Circumstances - 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.
• Assist - 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.
• Hostile - Where the witness has been declared Hostile.

Question 7

Refreshing memory in court

If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied:

Answer 7

• 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”.

Question 8

Previous Consistent Statements Rule

Section 35
(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:

Answer 8

S35 Evidence Act 2006

(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 made 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 9

Hostile Witness

If declared hostile, 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).

These questions may include:

Answer 9

• 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 10

Hostile Witness

Legislation

Definition

Means the witness…….

Answer 10

S4 Evidence Act 2006

• Veracity - 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
• Inconsistent - 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 - Refuses to answer questions or deliberately withholds evidence.

Question 11

Purpose of Cross-Examination

There are two purposes of Cross-Examination:

Answer 11

• 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 12

Duty to Cross-Examine

The duty to cross-examine will therefore arise under the Act when:

Answer 12

• 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 13

Unacceptable Questions

Legislation

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers…….

Answer 13

S85 Evidence Act 2006

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

Of note

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 14

Evidence in Rebuttal

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. Such leave may be given to the prosecution if the further evidence:

Answer 14

• 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 15

Judicial Warnings

There are a number of circumstances in which a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight.

These are contained in ss 122-127of the Evidence Act 2006:

Answer 15

• Lies - Judicial warnings about Lies – S124
• Unreliable - Judicial warning that evidence may be Unreliable – S122
• Delayed - Delayed complaints or failure to complain in sexual cases – S127
• Children’s Evidence - Judicial directions about Children’s evidence – S125
• Giving Evidence - Judicial directions about certain ways of Giving evidence – S123
• Identification - Judicial warnings about Identification evidence – S126

Question 16

Warning that evidence may be unreliable

Legislation

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:

Answer 16

(a) Hearsay - Hearsay evidence:
(b) Defendant Statement - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) Witness Motive - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) Cell Confession - 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) Historic Conduct - Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 17

Warnings about lies

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

Answer 17

• 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.

Question 18

When giving evidence

Address Judge as:

Address Prosecutor/Defence as:

Answer 18

Judge as ‘Your Honour”, or “Sir/Ma’am”

Prosecutor/Defence as “Sir/Ma’am”

Question 19

Features of Adversarial Justice System

Answer 19

Developed through the English common law, The essential features of this system are:

• Facts of the case, evidence relevant to those facts, emerge by means of questions put by the 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 would ask.
• Each party has the right to test the testimony of witnesses called by the opposing party through cross examination.
• During the trial itself, the Judge’s function is to ensure the evidence is produced according to the established rules, ruling if necessary on its admissibility.
• Neither Judge nor jury are generally entitled to go beyond evidence presented by the parties and call witnesses or pursue inquiries of their own.
• The Judge should only asks questions when, in the opinion of the judge, justice requires it. Usually for the purpose of clarification or elimination of irrelevancy.
• The defendant does not have to give evidence or do anything to assist the prosecution in the presenting of it’s case; they may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
• Facts may by judicially noticed where they are known and accepted and cannot be reasonably questioned, or where the facts are capable of accurate and ready determination by reference to sources who accuracy cannot be reasonably questioned. Judicially noticed facts need not be proved.

Question 20

Sequence of Jury Trials

Answer 20

1. Jury is empaneled and a foreperson selected.
2. Crown gives their opening address.
3. Crown witness called, questions, cross-examination, re-examine. Judge may also ask questions.
4. Defence open address, role/task of jury, burden of proof, outline evidence to called. (although may make their address after the Crown’s)
5. Defence witness called, questions, cross-examination, re-examine. Judge may also ask questions.
6. Crown closing address, summary of prosecution, no new evidence may be introduced or new issues raised.
7. Defence closing address, summary of defence.
8. Judge sums up to jury before it retires to consider verdict.
9. Jury retires to decide the verdict.

Question 21

Jury Trail Sequence may be Varied

Answer 21

Defence may give brief statement of the issues in dispute at the conclusion of Crown Opening Address, so the jury is made more aware of what the case is about before it hears any evidence. Defence still entitled to making full opening address.

Cat 1 - fines
Cat 2 - <2 years
Cat 3 - >2 years
Cat 4 - offence in schedule 1 in High Court (Jury) or Judge along in long or complex cases including juror intimidation.

Question 22

Commenting on Defendant’s Right of Silence

Answer 22

• Judge
• Defendant
• Defendant’s counsel..
  may comment on the fact the defendant did not give evidence at his or her trial.

Judge may comment, burden of proof still on Crown and not leave the jury with the impression if the defendant were innocent he/she would’ve given evidence.

Question 23

Evidence in Chief

Purpose

Answer 23

Purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.

Must usually be given orally after taken the oath or affirmation.

Draw out the witness’s own recollection.

Question 24

Limits on Re-examination

Answer 24

Re-examine for purpose of clarifying or qualifying any issues raised during cross examination, but may not question on any other matter unless the Judge permits.

• Additional evidence allowed may be allowed. Then - cross examine, re examine

Question 25

Practical Matters for ‘Not Guilty’ Hearings

Witnesses

The officer in charge of the case should:

Answer 25

• 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 that if they have made a written statement, they may read it to refresh their memory before giving evidence.
• Ensure witnesses remain within call.
• Check the jury list to make sure that none of the jurors are known to the witnesses.
• Warn the witnesses that they are not to mix with or speak to jurors.
• Advise the witnesses about witness expenses.

Question 26

Practical Matters for ‘Not Guilty’ Hearings

General

The officer in charge of the case should:

Answer 26

• 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 27

Practical Matters for ‘Not Guilty’ Hearings

Giving Evidence

The officer in charge of the case should:

Answer 27

When you are giving evidence:
• 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.

Question 28

Practical Matters for ‘Not Guilty’ Hearings

Referring to Notebook

The officer in charge of the case should:

Answer 28

If you need to refer to your notebook:
• Ask the court’s permission.
• Introduce the material properly.
• Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
• Remember that you are only allowed to refresh your memory

Question 29

Practical Matters for ‘Not Guilty’ Hearings

General Guidence

The officer in charge of the case should:

Answer 29

At all times be truthful, factual, unbiased, calm and professional.