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

What happens with witnesses under 12 years when giving evidence?

Answer 2

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

Explain commenting on defendant’s right of silence

Answer 3

In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Question 4

Why are leading questions prohibited?

Answer 4

• 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 5

What may a witness refresh their memory with prior to giving evidence?

Answer 5

Statements, briefs of evidence, or a deposition statement prepared months before, or they may check their recollection of events with the officer who interviewed them.

Question 6

Define Hostile Witness

Answer 6

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 7

Once a witness is hostile, what questions can be asked to the witness?

Answer 7

• 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 8

Explain the distinction between hostile and unfavourable witnesses

Answer 8

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 9

What are the two purposes of cross- examination?

Answer 9

• 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 10

When is there a duty to cross-examine a witness?

Answer 10

• 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 11

When can a judge disallow or direct a witness to not answer a question?

Answer 11

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.

Question 12

What are the limits on re- examination?

Answer 12

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.

Question 13

If a witness wishes to consult a document while giving evidence, what are the conditions?

Answer 13

• 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.

Question 14

The Judge can give leave to call rebuttable evidence after the completion of their own case to rebut something arising during the trial. Such leave may be granted if the further evidence:

Answer 14

• 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 15

List the types of Judicial warnings a Judge may give?

Answer 15

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

Question 16

When what evidence is given must the Judge consider giving a warning?

Answer 16

(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.

Question 17

What is the purpose of evidence in chief?

Answer 17

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

Question 18

Define leading questions.

Answer 18

Leading question is one that directly of indirectly suggests a particular answer to that question.

Question 19

What is the general rule around leading questions?

Answer 19

The general rule is that leading questions may not be asked during evidence in chief or re-examination.

Question 20

When are leading questions allowed?

Answer 20

• the question relates to introductory or undisputed matters
• the question is put with the consent of all other parties
• the Judge allows the question

Question 21

If a witness wishes to consult a document while giving evidence, what conditions must be satisfied?

Answer 21

• The leave of the Judge must be obtained
• The document must be shown t every party in the proceeding
• The documents must have been made or adopted but a witness at a time when their memory was fresh

Question 22

What was held in R v Foreman?

Answer 22

The Court of Appeal confirmed that the approach to refreshing memory out of court before giving evidence has not been changed by the Evidence Act 2006.

Question 23

When is a previous consistent statement admissible?

Answer 23

A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement –
•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
•Forms an integral part of the events before the court
•Consists of the mere fact that a complaint has been made in a criminal case