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
• 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.

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

Leading Question

Definition

Answer 3

S4 Evidence Act 2006

One that directly or indirectly suggests a particular answer to the question

Question 4

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 4

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 5

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 5

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 6

Why would the judge exercise his discretion to allow leading questions

4 points

Answer 6

• 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 7

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 7

• 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 8

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 8

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 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 3 - reliable and provides information

Answer 9

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 10

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 10

• 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 11

Hostile Witness

Legislation

Definition

Means the witness…….

Answer 11

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 12

Purpose of Cross Examination

Answer 12

• 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

Question 13

Duty to Cross-Examine

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

Answer 13

• 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 14

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 14

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 15

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 15

• 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 16

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 16

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

Question 17

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 17

(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 18

Warnings about lies

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

Answer 18

• 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 19

When giving evidence

Address Judge as:

Address Prosecutor/Defence as:

Answer 19

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

Prosecutor/Defence as “Sir/Ma’am”