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 • Determine - whether there is any evidence that is fit to be submitted to the jury for its consideration • 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.
Oaths/Affirmations and Promises Different age requirements
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.
Leading Question Definition
S4 Evidence Act 2006 One that directly or indirectly suggests a particular answer to the question
Leading Question General rule when may not be asked and why - Based on the belief that it will produce unreliable evidence for the following reasons:
The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89). Based on the belief that it will produce unreliable evidence for the following reasons: • Agree- 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. • Easily Elicit - 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. • Danger - 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.
When are leading questions allowed in evidence in chief Legislation (1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—
S89 Evidence Act 2006 (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.
Why would the judge exercise his discretion to allow leading questions 4 points
• Identification - To direct the witness’s attention to the subject of Identification evidence (for example, “Was that the car you saw?”). • Circumstances - 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. •Assist - 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. • Hostile - Where the witness has been declared Hostile.
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:
• 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”.
Previous Consistent Statements Rule 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: Subsection 2 - veracity or accuracy
S35 Evidence Act 2006 (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 on a claim of recent invention on the part of the witness.
Previous Consistent Statements Rule 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: Subsection 3 - reliable and provides information
S35 Evidence Act 2006 (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.
Hostile Witness If declared hostile, 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). These questions 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).
