The course of evidence

Question 1

What is the judges role in a jury trial?

Answer 1

Decide all questions concerning 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 facts of the english common law adversarial system?

Answer 2

Facts of the case and evidence emerge by means of question put to 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

During the trial the judge’s function is to ensure that the evidence is produced according to the established rules ruling if necessary on admissibility

Neither the judge or jury is generally entitled to go beyond the evidence presented by the parties and call witnesses or pursue inquiries of their own. The judge may require the prosecution to call a witness who has not been called but this right is only exercised rarely.

The judge should only ask questions when in the open of the judge justice requires it. This will usually be for the purpose of clarification or the elimination of irrelevancy. Judge must be careful not to descend into the arena.

The defendant does not have to give evidence or to do anything to do anything to assist the prosecution in presentation of the case. He may stay silent and demand prosecution to prove the case.

Facts may be judicially noticed when they are known or accepted and cannot reasonably be questioned or when facts are capable and accurate and ready determination by reference to sources whose accuracy cannot be proved.

Question 3

Can a person unable to take an oath give evidence?

Answer 3

With the judge’s permission a witness of any age may give evidence without making an oath or affirmation to tell the truth.

If the judge does this he must inform the witness of the importance of telling the truth and not telling lies.

The evidence would then be treated as if it had been under oath.

Permission will be given for intellectually disabled or children unable to promise to tell the truth.

Question 4

What is the order of business for a jury trial?

Answer 4

After the jury has been empaneled and a foreperson selected the judge commences the trial with some brief instruction which covers the role of the jury and the need to keep an open mind, the burden and standard of proof

The crown makes an opening address in which the prosecutor will provide a detailed explanation of the charge or charges, reiterate the burden and standard proof, and summarize the case against the defendant and the evidence the crown will call.

Following the crown opening the case for the crown is presented, each witness is called and questioned by the prosecutor, cross examined and re-examined. Judge may also ask questions that in the judge’s opinion is required in the interest of justice.

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, in some cases this simply consists of the role of the jury and burden of proof. In others it goes further and outlines its evidence and its relation to the crown case.

The defence then calls its case by calling its witnesses who are subject to the above process.

The crown concludes making a closing address to the jury and sums up the case, no new information may be introduced or new issues raised.

Following this the defence makes a closing address.

The judge sums up the case for the jury.

Question 5

What section covers the examination of witnesses?

Answer 5

S84 - Examination of witnesses
1) Unless other provision or judge directs
- After a witness gives evidence in chief
- After giving evidence in chief the witness may be cross examined by all parties other than the party calling the witness
- After all parties who wish to do so have crossed the witness the witness may be re-examined

If a witness gives evidence in a affidavit or by reading a written statement in a courtroom it is to be treated as evidence in chief

Question 6

Outline the different catagories of offences and what trials can be elected?

Answer 6

Cat 1 & 2 (No imprisonment to less than 2yrs) JAT only

Cat 3 (2yrs or more) JAT or jury election

Cat 4 (scheduled offences) trialed by high court jury unless ordered as JAT for long and complex cases.

Question 7

What is a view, provide an example?

Answer 7

A view is an inspection of a place or thing that is not in the courtroom.

Eg inspection of a scene or building where offending took place.
A judge decides whether or not a view shall be held.

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

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

Question 8

Can the prosecution comment on a defendants silence?

Answer 8

S53 Defendants right to silence
No person other than the defendant or his counsel may comment on the fact the defendant did not give evidence at his trial

This prohibits prosecution but the judge may, if he does he must emphasize that the burden remains on the crown

Question 9

What is the purpose of evidence in chief?

Answer 9

To elicit testimony that supports the case of the party calling that witness

Must be given orally by a witness after he or she has taken an oath.

Ordinary means usually in court, but does not necessarily mean physically present e.g. AVL. may be in written form when both parties consent.

Question 10

What is a leading question?

Answer 10

One that directly or indirectly suggest a particular answer

Question 11

Can a leading question be asked in evidence in chief or re-examination?

Answer 11

General rule is that leading questions cannot be asked during evidence in chief or re-examination

Question 12

Why are leading questions prohibited for evidence in chief

Answer 12

Prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:

Natural tendency to agree with suggestions put to them by saying yes.

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 witness

Question 13

When may a leading question be allowed in evidence in chief?

Answer 13

To direct a witness to the subject of identification evidence eg was that the car you saw

In respect of questions about the surrounding circumstances in order to jog a witnesses 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 evidence in chief of very young people, people who have difficulty speaking english. Judge must ensure necessary

Where the witness has been declared hostile.

Question 14

What are the two types of refreshing memory?

Answer 14

Refreshing in court
- Reading written statement to refresh memory
S90(5) evidence act for the purpose of refreshing his memory 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.

Refreshing memory out of court
- Witnesses may before they give evidence refresh by reading statements or briefs. Or check recollection with OC.
Requirement is that the documents are within the witnesses own knowledge
R v Foreman confirmed the common law approach to refreshing out of court has not changed by the EA06

Question 15

What must a person do to consult a document when giving evidence?

Answer 15

Leave of judge must be obtained
The document must be shown to every party in the proceeding

The document is required to be made or adopted by a witness at a time when his memory was fresh.

Whether a document was made with a fresh memory depends on the circumstances of the case.

Question 16

What things can be considered to determine if a document was made with a fresh memory?

Answer 16

The court stated there is a non exhaustive set of factors that can be considered including
Significance of the events
Time elapsed between events and statement
Detail and lucidity of recollection
Evidence about the freshness of the witnesses memory

Question 17

What was held in Rongonui v R in relation to a fresh memory document?

Answer 17

Rongonui v R held that a statement made 6 weeks after the event could be held as made at the time the memory was fresh

Question 18

Are previous consistent statements admissible?

Answer 18

Generally inadmissible because the mere repetition of an allegation does not increase its truthfulness.

The intention is to prevent parties from inundating the courts with amounts of repetitive material in order to shore up testimony

Question 19

When is a previous consistent statement admissible? (3)

Answer 19

The statement responds to a challenge that will be made about there veracity or accuracy based on a previous inconsistent statement or claim of intervention

Forms an integral part of the events before the court.

Consists of the mere fact that a complaint has been made in a criminal case

Question 20

When may a party find a witness to be hostile?

Answer 20

The party who calls a witness may often find that the witness fails to give precisely the evidence they expect. Although the 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 generally not allowed to challenge the veracity of their own witness.

However if the witness displays hostility towards the party who has called them leave may be sought to declare them hostile.

Judge would grant a hostile witness if he considers it necessary for the purpose of doing justice

Question 21

What does a judge declaring a hostile witness allow?

Answer 21

allows the calling party to do the following:
Ask leading questions

Asking questions designed to probe the accuracy of memory and perception

Asking questions to prior inconsistent statements

Other challenges to veracity, including evidence from other witnesses

Question 22

What is a hostile witness defined as under s4?
(3 things)

Answer 22

Witness who
- Exhibits a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge.

• Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who calls the witness.
• Refuses to answer questions or deliberately withholds evidence

Question 23

What are the two purposes of cross examination?

Answer 23

To elicit information supporting the case of the party conducting the cross

To challenge the accuracy of the testimony given evidence in chief eg by casting doubt on the witnesses veracity or by eliciting contradictory testimony

Question 24

Who has the right to cross?

Answer 24

All other parties other than the ones calling the witness have the right to cross examine.

Thus in trials involving multiple defendants each defendant has the right to cross examine witness of both the prosecution and co defendants

Question 25

What three sections place statutory controls on cross examination?

Answer 25

• cross exam duties s92
  Limits on cross by parties in person s95
  Prohibition of unacceptable questions s85

Question 26

Is there a duty to cross examine?

Answer 26

Duty to cross examine arises when S95
Party must cross examine a witness when:

The cross examination deals with significant matters

And the matters are relevant and in issue in the preceding

The matters contradict the evidence of the witness

The witness may reasonably be expected to be in a position to give admissible evidence on those matters

Question 27

What covers a unacceptable question?

Answer 27

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 express in a language that is too complicated for the witness to understand.

Question 28

What will a judge take into account in regards to the witness when determining if a question is unacceptable?

Answer 28

Age and maturity of the witness

Physical intellectual physiological or psychiatric impairment of the witness

Linguistic or cultural background

Nature of the proceeding

Case of hypothetical question
and whether the hypothesis has been or will be proved by other evidence.

Question 29

Does a defence have to produce the document they wish to examine a witness on?

Answer 29

S96
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 circumstances making the statement are adequately identified to the witness

S96 is not restricted to inconsistent statements and can cover any previous statement
A witness may be cross about a previous statement either oral or documentary form. Without being shown the statement or having its contents disclosed by the cross examiner. The cross examiner must adequately identify to the witness the time place and other circumstance concerning the making of the statement.

If the witness does not admit making the statement the cross examiner may wish to prove the statement in which 2(a)and b will apply requiring them to show the statement.

Question 30

What are the limits on re-examination?

Answer 30

After cross the party who called may re examine on any issue raised during cross not any other matter except with permission of judge

If additional evidence allowed, must allow further cross and then further re exam

Question 31

What is evidence in rebuttal and when may it be used?

Answer 31

Evidence called by either party after the completion of their own case in order to rebut something can only be given 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 rising out of the conduct of the defence, the relevance of which could not have been foreseen.

Was not available or admissible before the prosecution’s case was closed

Is required in the interest of justice for any other reason.

Question 32

Up to when is rebuttal evidence permissible in a jury trial or JAT

Answer 32

Evidence in rebuttal may be permissible to the point a jury retires.

Or prior to a decision in a JAT

In addition to rebuttal a judge may recall a witness where he considers it is in the interest of justice to do so S99

Question 33

What are the Judicial Warnings between S122 - 127

Answer 33

S122 warning that evidence may be unreliable

S123 directions about certain ways of giving evidence

S124 warnings about lies

S125 directions about children’s evidence

S126 warnings about identification evidence

S127 delayed complaints or failure to complain in sexual cases

Question 34

Summarize when a S122 unreliable evidence warning may or must be used?

Answer 34

Judge MAY warn about evidence he thinks may be unreliable,

MUST consider when certain classes of evidence are given.

He is required to consider to give a warning when the following evidence is given:
- Hearsay evidence
- Confession evidence by a defendant
- Memory affected by long delays, 10 year cut off is arbitrary

Question 35

Summarize when a S123 direction in relation to evidence given?

Answer 35

S123 requires the judge to direct that the jury that evidence may be given in different ways and no adverse inferences should be drawn against the defendant or witness who has offered evidence in a different way

Question 36

Summarize a S124 lie warning and when it may be given?

Answer 36

S124 - warning about lies

Instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding.

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

or if the defendant requests the warning is given, it MUST be given.

Question 37

What is included in a S124 lie direction

Answer 37

The jury needs to be satisfied the defendant did lie before they use the evidence

People lie for various reasons

The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence.

Question 38

What does S125 prohibit in terms of childrens evidence

Answer 38

prohibits:
The judge from giving warnings about the absence of corroboration for childrens evidence if it would not have been given about a adults evidence.

Any direction or a comment that there is a need to scrutinize the children’s evidence with special care or that children have a tendency to invent or distort.

Question 39

What should OC do when in the court? (4)

Answer 39

Ensure you look stand and speak correctly

Identify the defendant

Locate your witnesses and help them as required.

Do no mix with jurors or members of defence

Question 39

What Should the OC do prior to a trial, and at a trial when engaging with witnesses? (7)

Answer 39

Advises witnesses of the time place date of trial, exhibits to be presented

Check whether they have given evidence before and advise of procedure, what to do speak clearly slowly, if you don’t know, you don’t know

Advise witnesses if they made a witness statement that they may read it to refresh their memory, but can only read that

Ensure witnesses remain within call if they are excluded from the courtroom

Check the jury list to make sure none of the jurors are known to the witnesses

Warn the witnesses they are not to mix with jurors

Advise witnesses about witness expenses

Question 40

What should be done when giving evidence? (6)

Answer 40

Take care you answer the question

Say you do not know rather than guess.

Do not be flippant

Address the judge as your hono

Address the prosecutor and defence as sir or mam

Advise the judge of any mistakes you have made as soon as possible or advise the prosecutor if you have finished giving evidence.

Question 41

What do you do if you need to refer to your notebook?

Answer 41

Ask the courts permission

Introduce the material properly eg i interviewed the defendant and wrote the answers in my notebook at the time

Remember that the defence and jury are entitled to view nbx

Remember that you are only allowed to refresh your memory, not allowed to read the entire entry.

Question 42

How would you introduce a notebook statement of admission to the court?

Answer 42

At … I spoke to the defendant. Following a general discussion on …(the weather) I then asked him …. She replied ….. I then asked him if he wished to make a statement. He agreed and I now produce and read that to the court.

Question 43

If your evidence includes evidence which supports the defence case what do you do?

Answer 43

If you can give evidence that is favorable to the defence you must do so, you are there to assist the court to arrive at the truth of the matter. It shows you are unbiased and confirms your credibility.

Question 44

What are 5 key short points for giving evidence as a OC Case?

Answer 44

TRUTHFUL
FACTUAL
UNBIASED
CALM
PROFESSIONAL