The Course of Evidence

Question 1

What is the Judge’s role in a trial by jury (DEI)?

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

Witnesses who are 12 years of age and older must take an oath or affirmation before giving evidence. Witnesses under the age of 12 must:

Answer 2

• 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.

Question 3

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

Answer 3

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 their trial.

Question 4

What is the purpose of the evidence in chief?

Answer 4

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

Question 5

Define leading question, and what is the general rule in relation to them?

Answer 5

EA06 defines a leading question as one that directly or indirectly suggests a particular answer to the question.

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

Question 6

What are three reasons why leading questions are not generally permitted (NER)?

Answer 6

• 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 7

S89 EA06 details situations in which leading questions may be permitted in examination in chief and re-examination. What are they ((IU)CJ)?

Answer 7

(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

Question 8

Can a witness refresh their memory before court? Explain.

Answer 8

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, or briefs of evidence, or check their recollection of events with the officer who interviewed them, and so forth.

The requirement is that the documents which the witness refers to to refresh their memory relate to matters which are within the witness’s own knowledge.

Question 9

If a witness wishes to consult a document while giving evidence, what three conditions must be satisfied (LSM)?

Answer 9

• The leave of the judge must be obtained
• The document must be shown to every other party in the proceeding
• The document has been made or adopted by a witness at a time when their memory was fresh

Question 10

What is the previous consistent statement rule ((VAI)IC)?

Answer 10

S35 EA06

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

(2) A previous statement 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 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 11

If a witness is declared hostile, they may be asked questions in the manner of cross-examination to the extent that the judge considers necessary for the purposes of doing justice. This may include (LPPC):

Answer 11

• Asking leadings 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 (providing that any evidence offered is substantially helpful in assessing the witness’s veracity)

Question 12

Define hostile witness (VIRD)

Answer 12

In relation to a witness, means the witness -

• 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

Question 13

What is the distinction between unfavourable witnesses and hostile witnesses (GSP)?

Answer 13

Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile

This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.

Question 14

What are the two purposes of cross-examination?

Answer 14

• 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 15

When may a Judge deem a question an unacceptable question (s85 EA06)?

UIMNRE

Answer 15

In any proceeding, a 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.

Question 16

Can a witness be cross-examined on a prior inconsistent statement, and what is the process?

Answer 16

Witnesses may be cross-examined as to prior inconsistent statements, such as written witness statements and oral statements.

S96 EA06 explains -

(1) a party who cross-examines a witness may question the witness about a previous statement made by the 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.

Question 17

What are the limits and conditions on the re-examination of a witness?

Answer 17

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, but may not be questioned on any other matter, except with the permission of the judge.

Question 18

What is evidence in rebuttal (FC N/A IOJ)?

Answer 18

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
• was not available or admissible before the prosecution’s case was closed
• is required to be admitted in the interests of justice for any other reason

Question 19

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

Answer 19

• warning that evidence may be unreliable (s122)
• directions about certain ways of giving evidence (s123)
• warnings about lies (s124)
• directions about children’s evidence (s125)
• warnings about identification evidence (s126)
• delayed complaints or failure to complain in sexual cases (s127)

Question 20

Under s122(2), the judge must consider whether to give a warning whenever certain types of evidence (unreliable evidence) is given. List those types of evidence (HDWDH)

Answer 20

• hearsay evidence
• evidence of a statement by the defendant
• evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant
• 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
• evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously

Question 21

Explain s125 EA06

Answer 21

S125 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 have not been given in the case of an adult complainant
• any direction or a comment (absent of 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 22

If you need to refer to your notebook you must:

Answer 22

• ask the court’s permission
• introduce the material properly, e.g., 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