The Course of Evidence

Question 1

Judge’s role in trial by jury

Answer 1

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

• 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

Oaths and affirmations

Answer 2

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77). Witnesses under the age of 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

Exceptions to oaths and affirmations with Judge’s Permission

Answer 3

With the judge’s permission, a witness of any age may give evidence without taking an oath, making an affirmation or a promise to tell the truth. If the judge gives such permission, he or she must inform the witness of the importance of telling the truth and not telling lies before the witness gives evidence. The evidence of the witness must then be treated as if it had been given on oath. Permission will be given for witnesses, such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.

Question 4

Examination of Witness Legislation

Answer 4

s83

(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Question 5

Sequence of Jury Trials

Answer 5

1. After jury is empanelled and a foreperson is selected, the judge commences the trial with a brief opening instruction to the jury covering their role, mechanics of jury service, keeping an open mind, burden and standard of proof etc.
2. The Crown makes an opening address covering a detailed explanation of the charge(s), the burden and standard of proof, summary of the case, and the evidence to be called.
3. Crown case is presented. Each prosecution witness and is questioned by the prosecutor (evidence of chief), the defence then has the opportunity to cross examine the witness, and if required, the prosecutor can re-examination the witness to clarify or qualify any matters raised during cross-examination. The judge may ask the witness questions which is required in the interest of justice.
4. If the defence intends to call evidence, it will open its case at the conclusion of Crown case, making an opening address to the jury.
5. The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and reexamination as set out above.
6. The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
7. Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
8. Finally, the judge sums up to the jury before it retires to consider its verdict.

Question 6

A view

Answer 6

A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or building where the alleged offending took place).

Question 7

Purpose of Evidence in Chief

Answer 7

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

The goal of evidence in chief and re-examination is to draw out the witness’s own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony.

Question 8

Definition of Leading Question

Answer 8

s4 EA2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question

Question 9

Reason for Prohibition of Leading Questions

Answer 9

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

• 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 10

When leading questions are permitted Legislation

Answer 10

s89

(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.
(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

Question 11

Circumstances where Leading Questions may be permitted

Answer 11

It is likely that leading questions may be allowed under s89(1)(c) in the following circumstances:

• To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
• To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from young or vulnerable witnesses.
• Where the witness has been declared hostile.

Question 12

Refreshing memory in court

Answer 12

Section 90(5) of the Evidence Act 2006 provides that “for the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.

The following conditions must be satisfied:

• the leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”. Whether a document was made while the memory was fresh depends on the circumstances of the individual case. Factors to be considered include the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document.

The document must have been made by the witness, or by another person acting on the witness’s behalf in his or her presence and assented to by the witness

Question 13

Rongonui v R

Answer 13

the Court upheld a decision that a statement made 6 weeks after the event could still be a document made or adopted at a time when the witness’s memory was fresh.

Question 14

Refreshing Memory out of Court

Answer 14

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before, or they may check their recollection of events with the officer who interviewed them.

Question 15

Previous Consistent Statement Legislation

Answer 15

s35
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.

(2) A previous statement of a witness 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 the 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 16

Exceptions to previous consistent statements rule

Answer 16

The judge will admit only as many previous consistent statements as is “necessary” to respond to the challenge to accuracy or veracity, thereby preventing multiple repetitive statements, which would undermine the general rule, being admitted.

Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” (s7) and therefore, unlike the previous law, will be admissible as evidence of its truth as well as of the fact that it was made.

Question 17

Hostile Witness Definition

Answer 17

s4

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 18

Hostile Witness Cross-Examination

Answer 18

If a witness displays active hostility towards the party that has called him or her, leave may be sought from the judge to declare that witness a “hostile witness”. If the application is granted, the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers necessary for the purposes of doing justice (s94). This may include:

• asking leading questions
• asking questions designed to probe the accuracy of memory and perception
• asking questions as to prior inconsistent statements, and
• other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).

Question 19

Distinction between hostile and unfavourable witnesses

Answer 19

A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. 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 20

Purposes of cross-examination

Answer 20

There are two purposes of cross-examination:

• 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).

Question 21

Cross-Examination Legislation

Answer 21

s92

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.

Question 22

The duty to put the case

Answer 22

Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on or explain it.

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

• 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 23

Unacceptable questions legislation

Answer 23

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 24

Cross-examination on previous statements of witnesses Legislation

Answer 24

(1) A party who cross-examines a witness may question the witness about a previous statement made by that 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.
(3) If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a) the defendant’s right to make a no-case application; and
(b) the defendant’s rights in relation to the order of addressing the court.

Question 25

Types of previous statements a witness can be cross-examined on

Answer 25

• written witness statements
• oral statements (for example, recorded on police job sheets)
• A witness may be cross-examined about a previous statement, whether in oral or documentary form (both consistent and inconsistent), without either being shown the statement or having its contents disclosed by the cross-examiner (although the questioner may do so if he or she wishes). The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
• If the witness does not admit to making the statement, the cross-examiner may wish to prove the statement, in which case s96(2)(a) and (b) will apply.

Question 26

Limits on re-examination

Answer 26

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.

If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence, and the judge may also allow further re-examination on matters arising out of that cross-examination.

Question 27

Evidence in rebuttal

Answer 27

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 (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.

Permission may be granted to the defendant if the interests of justice require the further evidence to be admitted.

Evidence in rebuttal may be permissible up to the time when the jury retires

Question 28

Judicial warnings

Answer 28

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:

• judicial warning that evidence may be unreliable – s122
• judicial directions about certain ways of giving evidence – s123
• judicial warnings 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 29

Warning that evidence may be unreliable legislation

Answer 29

s122

(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
(2) 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:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) 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) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge to warn or inform the jury.

Question 30

Direction about how evidence may be given

Answer 30

Requires the judge in criminal proceedings to direct the jury that the law makes special provision for the giving of evidence in certain circumstances, and that no adverse inferences should be drawn against the defendant where a witness has offered evidence in an alternative way (s105), where a defendant has not been allowed to personally cross-examine a witness (s95), or where a witness offers evidence in accordance with a witness anonymity order (s112).

Question 31

Warnings about lies

Answer 31

Section 124 provides for instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding. It is a matter for the jury to conclude whether the defendant actually did lie.

The inference to be drawn from the lie is a matter for the jury. A proven lie by a defendant about a material matter can be taken into account as circumstantial evidence of guilt (and/or as going to veracity).

No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie, or if the defendant requests that the warning is given, in which case a warning MUST be given.

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

• 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 32

Directions about evidence given by children

Answer 32

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 it prohibits:

• the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
• any direction or a comment (absent 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 33

Practical Matters - Witnesses

Answer 33

The Officer in charge of the case should:

• Advise witnesses of the time, date, and place of the trial, and the exhibits to be presented at the trial.
• Check whether they have given evidence before. If not, advise them of the procedure. For example, where they are to stand, that they should speak slowly and clearly, tell the truth, and say, “I do not know“ rather than guess an answer.
• Advise witnesses that if they have made a written statement, they may read it to refresh their memory before giving evidence. However, they cannot read other documents, such as the job sheets or briefs.
• Ensure witnesses remain within call if they are excluded from the courtroom.
• Check the jury list to make sure that none of the jurors are known to the witnesses.
• Warn the witnesses that they are not to mix with or speak to jurors.
• Advise the witnesses about witness expenses.

Question 34

Practical Matters - O/C Case General

Answer 34

• Ensure that you look, stand and speak correctly.
• Identify the defendant.
• Locate your witnesses and help them as required.
• Do not mix or gossip with jurors or members of the defence.

Question 35

Practical Matters - O/C Case Giving Evidence

Answer 35

When you are giving evidence:

• Take care that you actually answer the question being asked.
• Say you do not know, rather than guess. • Do not be flippant.
• Address the judge as “Your Honour“ or “Sir/Ma’am”.
• Address the prosecutor and defence as “Sir/Ma’am”.
• Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.

Question 36

Practical Matters - Referring to Notebook

Answer 36

If you need to refer to your notebook:

• Ask the court’s permission.
• Introduce the material properly – for example, 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.

Question 37

Practical Matters - Introducing a notebook statement of admission to the court

Answer 37

When you have obtained a statement of admission which is to be read to the court, begin by giving evidence of any prior discussions or oral admissions. It is important to do this in case the statement is rejected because it is the only admissible evidence of an admission. Your evidence of the discussion should include only passing reference to irrelevant material.

Question 38

Practical Matters - general guidance

Answer 38

If you can give evidence that is favourable to the defence, you must do so. You are there to assist the court to arrive at the truth of the matter; it shows you are unbiased and confirms your credibility as a witness.

Remember: at all times be truthful, factual, unbiased, calm and profession