The course of evidence Flashcards

1
Q

What is the Judges role in a trial by Jury?

A
  • To decide all questions concerning admissibility of evidence.
  • To explain and enforce the general principles of law applying to the point at issue.
  • To instruct the Jury on the rules of law by which the evidence is to be weighed once it has been submitted.
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2
Q

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

A
  • Be informed by the judge of the importance of telling the truth and not telling lies, and
  • After being given that information makes a promise to tell the truth before giving evidence
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3
Q

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

A

In a criminal proceeding, no person other than the defendant, counsel or the Judge may comment on the fact that the defendant did not give evidence at their trial.

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4
Q

What is the purpose of the examination in cheif

A

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

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5
Q

Define leading questions and what the general rule in relation to leading questions is

A
  • A leading question is 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
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6
Q

The general rule about leading questions is that leading questions are not to be put to a witness during evidence in cheif or re-examination. What are the 3 reasons why leading questions are not generally permitted.

A
  • There is a natural tendency for people to agree with suggestions put to them by saying “yes”
  • Counsel asking leading questions of their own witnesses can more easily get the answer they wish to receive.
  • There is a danger that leading questions will result in the manipulation or construction of evidence between the counsel and the witnesses.
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7
Q

When are leading questions permitted?

A
  • When the question related to introductory or undisputed matters, or
  • When the questions are put with the consent of all other parties, or
  • When the judge, in the exercise of the judge’s discretion, allows the question
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8
Q

Can a witness refresh their memory before court, explain

A
  • Witnesses may, before they give evidence in court, refresh their memory by reference to statements or briefs of evidence or check their recollection with the officer that interviewed them, and so forth.
  • The requirement is that the document relates to matters which are within their own knowledge.
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9
Q

If a witness wishes to consult a document whilst giving evidence, the following conditions must be satisfied: Or…. can a witness refresh their memory in court. Or…. What three conditions must be satisfied for a witness to consult a document in court.

A
  • The leave of the judge must be obtained
  • The document must be shown to all parties in the proceeding
  • The document needs to have been made or adopted by a witness at a time their memory was fresh
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10
Q

What is the previous consistent statement rule.

A

A previous statement of a witness that is consistent with the witness’s evidence is only admissible if the statement
- Responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of invention on the part of the witness, or
- Forms an integeral part of the events before the court, or
- Consists of mere fact that a complaint has been made in a criminal case

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11
Q

If a witness is declared hostile the witness may be asked questions in the manner of cross-examination to the extent that the judge considers necessary. List four things this may include

A
  • Asking leading 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
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12
Q

Define Hostile Witness

A
  • Exhibits a lack of veracity when giving evidence unfavourably to the party who called the witness on a matter about which the witness may reasonable be supposed to have knowledge of.
  • Give 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 called the witness
  • Refuses to answer questions or deliberatley withholds evidence
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13
Q

A witness is deemed to be hostile when: (M/C)

A

Refuses to answer questions or deliberatley withholds evidence.

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14
Q

Destinction between hostile and unfavourable witnesses …. or … if a witness has memory loss can they be called hostile?

A

Witnesses who simply fail to come up to brief may be unfavourable to the party who called the witness, but they are not necessarily hostile. Witnesses who suffer memory loss or provides evidence inconsistent with another statement does not necessarily justify finding the witness as hostile.

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15
Q

What is the purpose of cross-examination

A
  • To elecit information supporting the case of the party conducting the cross-exmination
  • To challenge the accuracy of the testimony given in evidence in chief
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16
Q

When may a judge deem a question an unacceptable question?

A
  • In any proceeding, the judge may disallow or direct that a witness is not obliged to answer any questions that the judge considers improper, unfair, misleading, needlessly repetitive or expressed in a language that is too complicated for the witness to understand.
17
Q

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

A
  • Witnesses may be cross-examined as to prior incosistent statements, such as written witness statements and oral statements.
  • A party who cross examines a witness may question the witness about a previous statement made by that witness without showing it or dislcosing it contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.
  • If a witness does no expressly admit making the statement and the party wishes to prove they did, the party must show or disclose the statement to witness and the witness must be given an opportunity to deny making the statement or explain the inconsistency.
18
Q

Re-examination of a witness, what are the limits and conditions

A

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during the cross-examination, but may not be questioned on any other matter, except with the permission of the judge.

19
Q

What is evidence in rebuttal?

A

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 given to the prosecution if the further evidence:
- Relates to a purley formal matter
- Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been forseen
- 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

20
Q

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

A
  • Judicial warning that evidence may be unreliable
  • Judicial warning about lies
  • Judicial warning about identification evidence
  • Judicial directions about childrens evidence
  • Judicial directions about certain ways of giving evidence
  • Delayed complaints or failure to complain in sexual cases
21
Q

Under Section 122(2), the judge must consider whether to give a warning whenever certain types of evidence (unreliable evidence) is given. List those types of evidence

A
  • Hearsay evidence
  • Evidence of a statement by the defendant if that’s the only evidence implicating 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 in prison, police station, or other place of detention
  • Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously
22
Q

Section 125(1) - Does a judge have to give a warning where a child is a witness, if not why not?

A

No, a judge is not required to give a corroboration warning in a case involving a child complainant where the warning would not have been given had the complainant been an adult.

23
Q

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 prohibits

A
  • The Judge from giving warnings about the absense of corroboration where a warning would not be given in the case of an adult complainant.
  • Any direction or a comment that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendancy to invent or distort.
24
Q

If you need to refer to your notebook you must:

A
  • Ask the courts permission
  • Introduce the material properly
  • Jury and defence are entitled to view officer notebook so seal off other entries
  • Remember that you are only allowed to refresh your memory, you cannot read the whole entry
25
Q

When giving evidence in court, you should address the judge as: (M/C)

A

Your honor or Sir/Ma’am