The Course of Evidence

Question 1

Judge’s Role in Trial by Jury When a judge is presiding over a trial by jury, he or she must:

Answer 1

• 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/Affirmations and Promises Different age requirements

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

Defendant giving evidence

Answer 3

In a criminal proceeding, no person other than the Defendant or Defendants counsel or the judge may comment on the fact the defendant did not give evidence at his or her trial.

Question 4

Leading Question Definition

Answer 4

S4 Evidence Act 2006 One that directly or indirectly suggests a particular answer to the question

Question 5

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:

Answer 5

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.

Question 6

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—

Answer 6

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.

Question 7

Why would the judge exercise his discretion to allow leading questions 4 points

Answer 7

• 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.

Question 8

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:

Answer 8

• 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”.

Question 9

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

Answer 9

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.

Question 10

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

Answer 10

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.

Question 11

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:

Answer 11

• 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 12

Hostile Witness Legislation Definition Means the witness…….

Answer 12

S4 Evidence Act 2006 • Veracity - 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

• Inconsistent - 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 - Refuses to answer questions or deliberately withholds evidence.

Question 13

Hostile / unfavourable Witness

Answer 13

distinction must be drawn between unfavourable witnesses that don’t come up to brief and witnesses that are hostile.

Memory loss, inconsistant evidence not hostile.

Question 14

Purpose of Cross Examination

Answer 14

• 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, have the right to cross-examine.

Question 15

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

Answer 15

• 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 16

Unacceptable Questions Legislation (1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers…….

Answer 16

S85 Evidence Act 2006 Improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand. Of note 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 17

Limits on re examination

Answer 17

After cross examination by opposing counsel, the party who called the witness may re examine that witness for the purpose 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 18

Evidence in Rebuttal 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:

Answer 18

• 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 19

Judicial Warnings 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:

Answer 19

• Lies - Judicial warnings about Lies – S124
• Unreliable - Judicial warning that evidence may be Unreliable – S122
• Delayed - Delayed complaints or failure to complain in sexual cases – S127
• Children’s Evidence - Judicial directions about Children’s evidence – S125
• Giving Evidence - Judicial directions about certain ways of Giving evidence – S123
• Identification - Judicial warnings about Identification evidence – S126

Question 20

Warning that evidence may be unreliable Legislation 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:

Answer 20

(a) Hearsay - Hearsay evidence:
(b) Defendant Statement - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) Witness Motive - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) Cell Confession - 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) Historic Conduct - Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 21

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

Answer 21

• 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 22

When giving evidence Address Judge as: Address Prosecutor/Defence as:

Answer 22

Judge as ‘Your Honour”, or “Sir/Ma’am” Prosecutor/Defence as “Sir/Ma’am”