The Course of Evidence Flashcards
Judge’s role in Trial by Jury
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.
Features of Adversarial Justice System
Developed through the English common law, The essential features of this system are:
- Facts of the case, evidence relevant to those facts, emerge by means of questions put by the prosecution or defence to witnesses called by them.
- It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they would ask.
- Each party has the right to test the testimony of witnesses called by the opposing party through cross examination.
- During the trial itself, the Judge’s function is to ensure the evidence is produced according to the established rules, ruling if necessary on its admissibility.
- Neither judge nor jury are generally entitled to go beyond evidence presented by the parties and call witnesses or pursue inquiries of their own. Rarely, the Judge may require the prosecution to call a witness who has not been called. The Judge has the right to to recall witnesses where necessary in the interest of justice in exceptional circumstances.
- The Judge should only asks questions when, in the opinion of the judge, justice requires it. Usually for the purpose of clarification or elimination of irrelevancy. The Judge must be careful not to “descend into the area” by asking questions which go beyond the points and issues presented. The jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness.
- The defendant does not have to give evidence or do anything to assist the prosecution in the presenting of it’s case; they may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
- Facts may by judicially noticed where they are known and accepted and cannot be reasonably questioned, or where the facts are capable of accurate and ready determination by reference to sources who accuracy cannot be reasonably questioned. Judicially noticed facts need not be proved. In addition, a Judge may admit as evidence any published documents that are deemed to be reliable sources of information in matters of public history, literature, science or art.
Oaths and Affirmations
> 12 years must take an oath or affirmation.
< 12 years must:
- be informed by the judge of the importance of telling the truth and not telling lies; and
- after given that information, make a promise to tell the truth, before giving evidence.
With the Judge’s permission, a witness of any age may give evidence without taking an oath, affirmation or a promise to tell the truth. If give such permission, the judge must inform them of the importance of telling the truth and not telling lies - intellectual disability.
Sequence of Jury Trials
- Sworn, empanelled, fore person. Introduction by Judge, standard/burden of proof, role/mechanics of jury.
- Crown opening address, explanation of charge, standard/burden of proof, summarise case and evidence to be called.
- Crown witness called, questions, cross-examination, re-examine. Judge may also ask questions.
- Defence open address, role/task of jury, burden of proof, outline evidence to called.
- Defence witness called, questions, cross-examination, re-examine. Judge may also ask questions.
- Crown closing address, summary of prosecution, no new evidence may be introduced or new issues raised.
- Defence closing address, summary of defence.
- Judge sums up to jury before it retires to consider verdict.
Sequence may be varied
Defence may give brief statement of the issues in dispute at the conclusion of Crown Opening Address, so the jury is made more aware of what the case is about before it hears any evidence. Defence still entitled to making full opening address.
Cat 1 - fines
Cat 2 - <2 years
Cat 3 - >2 years
Cat 4 - offence in schedule 1 in High Court (Jury) or Judge along in long or complex cases including juror intimidation.
A View
Inspection of a place or thing outside the Courtroom. e.g. inspection of a scene or building. Judge decides whether a view should be held. All parties and lawyers are entitled to attend. Information obtained at a view may be used as though the information had been given in evidence.
Commenting on Defendant’s right of silence
- Judge
- Defendant
- Defendant’s counsel
may comment on the fact the defendant did not give evidence at his or her trial.
Judge may comment, burden of proof still on Crown and not leave the jury with the impression if the defendant were innocent he/she would’ve given evidence.
Evidence in Chief
Purpose
Purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
Must usually be given orally after taken the oath or affirmation.
Draw out the witness’s own recollection.
The prohibition of Leading Questions
The general rule is that leading questions may not be asked during evidence in chief or re-examination.
Leading Questions is one that directly or indirectly suggests a particular answer to the question s(4).
Prohibition is based on the belief that it will produce unreliable evidence for the following reasons:
- Natural tendency for people to agree to suggestions, even if suggestions do not precisely accord to their view of what happened.
- Counsel asking leading questions of their own witness can elicit answers they wish to receive, reduce the spontaneous / genuineness of the the testimony.
- Danger in resulting of manipulation, construction of evidence, collusion between witness and counsel.
When leading questions are permitted
Section 89 Evidence Act 2006
Leading questions in examination in chief and re-examination
(1) In any proceeding, a leading questions must not be put to a witness in examination in chief or re-exmaination 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.
When leading questions are permitted
Continued
Judge may allow based on his/her discretion:
- Subject of identification evidence “Was that the car you saw?”
- Jog a witnesses memory, provided the central question is not suggested in the question.
- Assist counsel elicit evidence in chief of very young people, limited english, intellectually impaired.
- Hostile witness.
Refreshing memory in Court
If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied:
- with leave of the Judge
- document must be show to all parties in the proceeding
- requires the document to be made or adopted by the witness at a time when their memory was fresh. Rangoon v R decision of statement made 6 weeks after was still fresh memory.
Document may become admissible if the person where there is a case of inability to recall.
Previous consistent Statement
Section 35 Evidence Act 2006
Generally not admissible, repeated and heard on several occasions will give it great impact. Jury may give it more weight.
Previous consistent statement rule:
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless sub s(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 made 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.
Hostile Witness
A witness who display hostility towards the party that has called him or her.
If leave is sought and granted by the Judge, they may be declared hostile witness and may be asked questions in the manner of cross-examination. This may include:
- asking leading questions
- asking questions designed to probe the accuracy of memory or perception
- asking questions as to prior inconsistent statement
- other challenges to veracity, including evidence from other witnesses.
There are no rules restricting a party from calling a witness who is known to be hostile to that party.
Hostile Witness Defined
Section 4 Evidence Act 2006
Means a witness:
- exhibits or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness about the matter which the witness may reasonable suppose 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
- refuse to answer questions or deliberately withholds evidence.