The Course of Evidence

Question 1

Features of adversarial justice system

Answer 1

“adversarial” or “accusatorial” system of justice developed through the English common law.

• 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.
• During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
• Neither the judge nor the jury is generally entitled to go beyond the evidence presented by the parties and call witnesses or pursue inquiries of their own.
• By the same token, the judge should only ask questions of witnesses when, in the opinion of the judge, justice requires it.
• The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case.
• Facts may be judicially noticed where they are known and accepted and so cannot reasonably be questioned, or where the facts are capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned.

Question 2

Oaths and Affirmations

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.

If the judge gives such permission, he or she must inform the witness of the importance of telling the truth and
not telling lies before the witness gives evidence. The evidence of the witness must then be treated as if it had been given on oath. Permission will be given for witnesses, such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.

Question 3

Jury Trials

Answer 3

As under the previous law for jury trials, the prosecution open the case and call witnesses, to be followed by the defence opening and calling of witnesses. The Court may give the defendant leave to make an opening
statement before the prosecution calls any witnesses. By virtue of s107 of the Criminal Procedure Act 2011, the defence may call a witness immediately after a prosecution witness

Question 4

Sequence of Jury Trials

Answer 4

1. After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof
2. The Crown then makes an opening address, in which the prosecutor will provide a detailed explanation of the charge or charges, reiterate the burden and standard of proof, and summarise the case against the defendant and the evidence that the Crown proposes to call.
3. Following the Crown opening, the case for the Crown is then presented.
4. If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury.
5. The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and reexamination as set out above.
6. The Crown then concludes by making a closing address to the jury.
7. Following the Crown closing, the defence makes a closing address to the jury
8. Finally, the judge sums up to the jury before it retires to consider its verdict.

Question 5

Sequence May Be Varied

Answer 5

It should be reiterated that the defence is not obliged to call any evidence. In the event that it does not do so, the trial proceeds immediately to closing addresses at the conclusion of the prosecution case. Should any hearing proceed without the defendant, s124 Criminal Procedure Act 2011 outlines the applicable procedure to follow.

becoming increasingly common for defence counsel to provide a brief statement of the issues in dispute in the case at the conclusion of the Crown opening and before the prosecution calls any witnesses. The defence is still entitled to make a full opening address at the conclusion of the prosecution case if it intends to call evidence.

judge alone trials for Category 1 and 2 offences (not punishable by imprisonment, or punishable by a maximum of less than 2 years’ imprisonment respectively); judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, which a limited list of offences in schedule 1 of the Act that are tried by a High Court jury unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).

Question 6

A View May Be Held

Answer 6

A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or
building where the alleged offending took place). The judge decides whether or not a view should be held. If a view is held, all parties and their lawyers are entitled to attend.

Demonstrations and reconstructions may also be held if relevant and if their probative value outweighs the risk of unfair prejudicial effect on the proceeding.

Question 7

S33 - Restrictions on comment on defendant’s right of silence at trial

Answer 7

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. The judge must direct the jury that it may not draw an inference of guilt from the failure.

In practice, judges rarely comment on the defendant’s failure to give evidence. However, where a judge wishes to do so he or she must emphasise that the burden of proof still remains upon the Crown and must not leave the jury with the impression that if the defendant were innocent he or she would have given evidence.

Question 8

Evidence in Chief

Answer 8

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

Question 9

The prohibition on leading questions

Answer 9

The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89). A leading question as one that directly or indirectly suggests a particular answer to the question.

The prohibition on leading questions is 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 10

S89 - Leading questions in examination in chief and re-examination

Answer 10

(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.

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.
- Where the witness has been declared hostile.

Question 11

Refreshing Memory

Answer 11

The extent to which a witness is permitted to “refresh” or revive their memory by talking to others or referring to relevant notes and statements is governed by two sets of rules: one relating to refreshment of memory by reference to written documentation in court; and the other relating to refreshment of memory out of court

Question 12

Refreshing Memory in Court

Answer 12

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.” 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:
- 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”.

In some circumstances the document may become admissible under s35(3) This will be the case where there is an
inability to recall the evidence at all.

Question 13

Refreshing memory out of court

Answer 13

In R v Foreman, the Court of Appeal confirmed that the approach to refreshing memory out of court (before giving evidence) has not been changed by the Evidence Act 2006: The principle is that witnesses are free to use whatever means they choose to refresh their memories prior to trial, although the means used can affect the weight that is given to their evidence.

Question 14

• Previous Consistent Statements Rule

Answer 14

(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 15

• Hostile Witness

Answer 15

Leave may be sought from the judge to declare that witness a “hostile witness”. If the application is granted, 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 16

Not a Hostile Witness

Answer 16

The party who has called a witness may often find that the witness fails to give precisely the evidence they expect. Although they may contradict that evidence by producing other witnesses with a different version of the facts, a party calling a witness is not generally permitted to examine the witness with leading questions, and they are not generally entitled to challenge the veracity of their own witness through cross-examination (s84).

Question 17

• S4 - Hostile Witness Defined

Answer 17

• 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.

Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.

Question 18

Purpose of Cross Examination

Answer 18

There are two purposes of cross-examination:
* to elicit information supporting the case of the party conducting the crossexamination
* 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).

All parties, other than the one calling the witness, have the right to crossexamine.

Cross-examination is subject to various statutory controls in the Evidence Act 2006:
* cross-examination duties – s92
* limits on cross-examination by parties in person – s95, and
* the prohibition on unacceptable questions – s85.

S93 - leading questions asked in cross-examination of a witness who has the same, or substantially the same, interest in the proceeding as the cross-examining party may be limited by the judge.

Question 19

2 - Cross-examination Duties

Answer 19

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 20

• S85 - Unacceptable Questions

Answer 20

(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.

S85 will most typically be invoked to control cross-examination.

Question 21

S96 - Cross-examination on Previous Statements of Witnesses

Answer 21

(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 22

Section 96 not restricted to inconsistent statements

Answer 22

The effect of the provisions in s96 can be summarised as:
* A witness may be cross-examined about a previous statement, whether in oral or documentary form (both consistent and inconsistent), without either being shown the statement or having its contents disclosed by the cross-examiner (although the questioner may do so if he or she wishes). The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
* If the witness does not admit to making the statement, the cross-examiner may wish to prove the statement, in which case s96(2)(a) and (b) will apply.

Question 23

Limits on reexamination

Answer 23

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

Question 24

• Evidence in Rebuttal

Answer 24

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:
- 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.

Permission may be granted to the defendant if the interests of justice require the further evidence to be admitted.

Question 25

Recalling Witnesses

Answer 25

A judge may recall a witness who has given evidence, where he or she considers that it is in the interests of justice to do so (s99).

Question 26

Judicial Warnings

Answer 26

• 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 27

• S122 - Judicial directions about evidence which may be unreliable

Answer 27

(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.

Question 28

Warning that evidence may be unreliable

Answer 28

Section 122(1) provides that the judge may warn the jury about evidence that he or she thinks may be unreliable; s122(2) provides that the judge must consider doing so whenever certain classes of evidence are given. This is discretionary, not mandatory.

Section 122(2) requires the judge to consider giving a warning under s122(1) whenever certain types of evidence that inherently carry the risk of unreliability are given (s122(2)(a)-(e)).

Section 122(2)(a) reflects the concern that hearsay evidence may be unreliable because the maker of the statement has not promised to tell the truth, and there can be no testing of the evidence under cross-examination.

Section 122(2)(b), which applies to “confessions” that are the only evidence implicating the defendant, acknowledges the risk that a defendant may falsely “confess”. Section 122(2)(b) envisages a statement that is reliable enough to be admitted, but which still requires a warning because of potential unreliability.

Section 122(2)(e) acknowledges that most memories will be affected by long delays. If the judge does decide to give a warning, there is no requirement in s122 that it be given at a particular time, and there is no particular form of words required.

Question 29

Direction about how evidence may be given

Answer 29

Section 123 requires the judge in criminal proceedings to direct the jury that the law makes special provision for the giving of evidence in certain circumstances, and that no adverse inferences should be drawn against the defendant where a witness has offered evidence in an alternative way (s105), where a defendant has not been allowed to personally cross-examine a witness (s95), or where a witness offers evidence in accordance with a witness anonymity order (s112).

Question 30

S24 - Warnings About Lies

Answer 30

Provides for instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding. It is a matter for the jury to conclude. A proven lie by a defendant about a material matter can be taken into account as circumstantial evidence of guilt (and/or as going to veracity).

No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie.

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.

Question 31

S125 - Directions about evidence given by children

Answer 31

Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults. 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 32

Not Guilty Hearings - Witnesses

Answer 32

The officer in charge of the case should:
- 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. For example, where they are to stand, that they should speak slowly and clearly, tell the truth, and say, “I do not know“ rather than guess an answer.
- Advise witnesses that if they have made a written statement, they may read it to refresh their memory before giving evidence. However, they cannot read other documents, such as the job sheets or briefs.
- Ensure witnesses remain within call if they are excluded from the courtroom.
- 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 33

Not Guilty Hearings - O/C Case General

Answer 33

• 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 34

• Not Guilty Hearings - O/C Case Giving Evidence

Answer 34

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 35

Not Guilty Hearings - Referring to your notebook

Answer 35

If you need to refer to your notebook:
- Ask the court’s permission.
- Introduce the material properly – for example, by saying, “I interviewed the defendant and wrote the answers in my notebook at the time”.
- 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 – you cannot read the whole entry unless you have permission to read the notes of the interview.