The Course of Evidence

Question 1

The judge’s role in a jury trial

Answer 1

• Decide all questions concerning the admissibility of evidence
• Explain and enforce the general principles of law applying to the issue
• Instruct the jury on the rules of law by which the evidence is to be weighed

Question 2

Oaths and affirmations

Answer 2

Witnesses who are 12 years of age or older must take an oath or affirmation

Witnesses under the age of 12

• must be informed by the judge of the importance of telling the truth and not telling lies and
• make a promise to tell the truth

Question 3

The purpose of evidence in chief

Answer 3

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

Question 4

The general rule for leading questions

Answer 4

Is that leading questions may not be asked during evidence in chief or re-examination s 89

Question 5

Define leading question

Answer 5

One that directly or indirectly suggests a particular answer to the question s 4

Question 6

Why are leading questions generally not permitted

Answer 6

• Natural tendency for people to agree with suggestions put to them
• Council can more easily elicit the answers they wish to receive reducing the genuineness of the testimony
• A danger that leading questions will result in the manipulation or construction of the evidence

Question 7

When are leading questions allowed s 89

Answer 7

• To direct the witness’s attention to the subject of identification
• In respect of questions about surrounding circumstances in order to jog a witness’s memory
• To assist council in eliciting the evidence in chief of young people or vulnerable Witnesses
• Where the witness has been declared hostile

Question 8

How to address a judge

Answer 8

• Your honour
• sir / ma’am

Question 9

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

Answer 9

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.

Question 10

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

This is about lying by the defendant

Answer 10

1. The jury needs to be satisfied that the defendant did lie before they use the evidence,
2. People lie for various reasons, and
3. The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.

Question 11

How can a witness refresh their memory?

Answer 11

By reference to statements, briefs of evidence or a deposition statement on the basis statements may have been made months before.

Question 12

Section 35

A previous consistent statement is not admissible unless with 35(2) which is:

Answer 12

(2) (a) it responds to a challenge to the witness’s veracity or accuracy or a claim of Invention
(b) forms an integral part of the events before the court
(c) consists of the mere fact a complaint has been made in a criminal case

Question 13

Define hostile Witness

Answer 13

• Exhibits a lack of veracity when giving evidence to the party who called the witness
• Gives evidence that is inconsistent with a statement made by them
• Refuses to answer questions or deliberately withholds evidence

Question 14

Questions that may be asked of a hostile Witness

Answer 14

1. Leading questions
2. Questions designed to probe the accuracy of memory and perception
3. Questions as to prior inconsistent statements
4. Other challenges to veracity

Question 15

What is the difference between a hostile and unfavourable Witness ?

Answer 15

At Witness that simply fails to come up to brief may be unfavourable

ie suffers a memory loss

Question 16

What are the two purposes of cross-examination ?

Answer 16

• 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 17

When is there a duty to cross-examine ?

All four answers use the word matter(s)

Answer 17

1. The cross examination deals with significant matters
2. The matter is relevant
3. The matter contradicts the evidence of the witness
4. The witness may be expected to be in a position to give evidence on those matters

Question 18

Types of unacceptable questions

Answer 18

• Improper
• Unfair
• Misleading
• Needlessly repetitive
• Expressed in a language too complicated for the witness to understand

Question 19

What is rebuttal evidence ?

Answer 19

Evidence called by either party after the completion of their own case to rebut something arising during the trial

Question 20

Section 122

The judge may give a warning that evidence may be unreliable in relation to - Sec 122(2)

Answer 20

S122(2)
(a) Hearsay evidence
(b) Evidence of a statement by the defendant if it is the only evidence implicating the defendant
(c) Evidence by a witness who may have motive to give false evidence
(d) Evidence of a statement by the defendant to another person while detained or in custody
(e) Evidence about the conduct of the defendant more than 10 years previously

Question 21

Referring to your notebook

if you need to refer to your notebook

Answer 21

1. Ask the court’s permission.
2. Introduce the material properly – eg, by saying, “I interviewed the defendant and wrote the answers in my notebook at the time”.
3. Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
4. 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.