the course of evidence 2

Question 1

Hostile Witness Legislation Definition Means the witness…….

Answer 1

S4 Evidence Act 2006 • Veracity - 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 • Inconsistent - 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 - Refuses to answer questions or deliberately withholds evidence.

Question 2

Purpose of Cross Examination

Answer 2

• 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 3

Duty to Cross-Examine The duty to cross-examine will therefore arise under the Act when:

Answer 3

• 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 4

Unacceptable Questions Legislation (1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers…….

Answer 4

S85 Evidence Act 2006 Improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand. Of note 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.

Question 5

Evidence in Rebuttal 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:

Answer 5

• 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.

Question 6

Judicial Warnings There are a number of circumstances in which a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight. These are contained in ss 122-127of the Evidence Act 2006:

Answer 6

• Lies - Judicial warnings about Lies – S124 • Unreliable - Judicial warning that evidence may be Unreliable – S122 • Delayed - Delayed complaints or failure to complain in sexual cases – S127 • Children’s Evidence - Judicial directions about Children’s evidence – S125 • Giving Evidence - Judicial directions about certain ways of Giving evidence – S123 • Identification - Judicial warnings about Identification evidence – S126

Question 7

Warning that evidence may be unreliable Legislation 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:

Answer 7

(a) Hearsay - Hearsay evidence: (b) Defendant Statement - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant: (c) Witness Motive - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant: (d) Cell Confession - 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) Historic Conduct - Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 8

Warnings about lies When a warning must be given, it should include direction that:

Answer 8

• 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 9

When giving evidence Address Judge as: Address Prosecutor/Defence as:

Answer 9

Judge as ‘Your Honour”, or “Sir/Ma’am” Prosecutor/Defence as “Sir/Ma’am”