The Course of Evidence

Question 1

Judges role in trial by jury

Answer 1

When a judge is presiding over a trial by jury, he or she must:

• decide all the questions concerning the admissibility of evidence
• explain and enforce the general principals of law applying to the point at the issue
• instruct the jury on the rules of law by which the evidence is to be weight once it has been submitted

Question 2

Oaths and affirmations

Answer 2

Witnesses 12 years + must take an oath/affirmation before giving evidence (s77).
Witnesses under 12 must:
*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

Jury trials

general understanding

Answer 3

CPA 2011 governs the conduct of all trials

The jury is empanelled and a foreperson selected
Prosecution gives opening address
Prosecution case is presented
Defence gives opening address (although may after PO)
Defence case is presented
Prosecution make closing statement
Judge sums up
Jury retires to decide the verdict

Question 4

Evidence in chief

Answer 4

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling the witness.

The questioning of a party’s own witness under oath.

Usually orally given

Question 5

Leading question

Answer 5

A leading question is one that directly or indirectly suggests a particular answer to a question

|*No comprehensive test for whether a question leading however questions that seek ‘yes/no’ answers are examples

Question 6

Prohibition on leading questions

Answer 6

The general rule is leading questions may not be asked during evidence in chief or re-examination (s89)

Question 7

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

Answer 7

• natural tendency for people to agree with suggestions
• counsel asking leading questions of their own witness can more easily elicit the answer they want
• Danger that the leading question will result in manipulation or construction so evidence through collusion between counsel and witness

Question 8

Goal of evidence in chief and re-examination

Answer 8

To draw out the witnesses own recollection.

Question 9

When leading questions are permitted s89

Answer 9

s89
Leading questions in examination in chief and re-examination
(1)In any proceeding, a leading question must not be out to a witness in examination in chief or re-examination unless-
(a) the question relates to introductory or undiputed 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 10

It is likely that leading questions may be allowed under 89(1)(c) -

Answer 10

• to direct the witness’s attention to the subject of identification (was that the car you saw)
• In order to jog a persons memory about some fact
• To assist counsel to elicit evidence in chief in very young people, English problems, limited intelligence
• Where witness has been declared hostile

Question 11

Refreshing memory in court

Answer 11

• A witness may read their statement to refresh their memory WITH LEAVE FROM THE JUDGE
• The document must be shown to every other party in the proceeding
• The document must have been made when his memory was fresh (ie shortly after the event)

Question 12

Previous consistent statements s35

Answer 12

Previous consistent statements rule
35
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or a claim of recent invention on the part of the witness
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if -
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall

Question 13

General rule - previous consistent statements

Answer 13

The general rule is that a witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in 35(2) or (3) apply

Question 14

Hostile Witness

Answer 14

• exhibits of appears to exhibit a lack of veracity when giving evidence that he is supposed to have knowledge
• gives evidence that is inconsistent with a statement made, and intention to be unhelpful to the party who called the witness
• refuses to answer questions or deliberately withholds evidence

Question 15

Difference between hostile and unfavourable witness

Answer 15

Fail to come up to brief - unfavourable

ie suffers memory loss, provides inconsistent evidence does not in itself mean hostile

Question 16

Two purposes 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

All parties other than the one calling the witness can cross examine

Question 17

Unacceptable questions s85

Answer 17

Unacceptable questions
s85
(1) In any proceeding, the 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.
(2) Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the 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 18

Rebuttal

Answer 18

Evidence called by either party after the completion of their own case, in order to rebut something arising

Question 19

Judicial warnings

Answer 19

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

Question 20

Directions about evidence given by children

Answer 20

s125 - evidence given by children should be in general treated in the same way as evidence given by adults. Thus it prohibits -

• the judge from giving warnings about the absence of corroboration where an adult would not have been warned
• any direction or comment that there is a need to scrutinise children’s evidence with special care, or that children have a tendency to invent/distort