The Course of Evidence

Question 1

WHAT IS A JUDGES ROLE IN TRIAL BY JURY?

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 AND AFFIRMATIONS - AGE AND 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
• make a promise to tell the truth, before giving evidence

Question 3

WHAT IS THE PURPOSE OF EVIDENCE IN CHIEF?

Answer 3

To elicit testimony that supports the case

of the party calling that witness.

Question 4

DEFINE LEADING QUESTION

Answer 4

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

Question 5

REASONS FOR FORBIDDING LEADING QUESTIONS

Answer 5

• 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 6

RULES AROUND LEADING QUESTIONS

Answer 6

Leading questions may not be asked during evidence in chief or re-examination

Question 7

CIRCUMSTANCES LEADING QUESTIONS ARE PERMITTED - SECTION 89

Answer 7

• the question relates to introductory or undisputed matters
• the question is put with the consent of all other parties
• the Judge, in exercise of the Judge’s discretion, allows the question.

Question 8

WHAT DOES SECTION 90(5) PROVIDE REGARDING REFRESHING MEMORY?

Answer 8

for the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.”

Question 9

WHEN IS A PREVIOUS CONSISTENT STATEMENT ADMISSIBLE?

Answer 9

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

Question 10

O/C CASE - GIVING EVIDENCE

Answer 10

• Take care that you actually answer the question being asked.
• Say you do not know, rather than guess.
• Do not be flippant.
• Address the judge as “Your Honour“ or “Sir/Ma’am”.
• Address the prosecutor and defence as “Sir/Ma’am”.
• Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.

Question 11

WHEN IS A WITNESS DEEMED TO BE HOSTILE ?

Answer 11

• Displays active hostility
• Refusing to answer questions or withholds information

Leave is sought to declare as hostile witness

Question 12

WHAT QUESTIONS CAN BE ASKED TO A HOSTILE WITNESS?

Answer 12

• leading questions
• questions designed to probe the accuracy of memory and perception
• questions as to prior inconsistent statements
• other challenges to veracity, including evidence from other witnesses

Question 13

DEFINE HOSTILE WITNESS

Answer 13

Section 4 - Evidence Act 2006

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 14

WHEN DOES THE DUTY TO CROSS EXAMINE ARISE?

Answer 14

• the cross-examination deals with “significant matters” in the proceeding
• the matters are “relevant” and “in issue” in the proceeding,
• the matters “contradict the evidence of the witness”
• The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.

Question 15

SECTION 85 - UNACCEPTABLE QUESTIONS

Answer 15

Questions that are:

• improper
• unfair
• misleading
• needlessly repetitive
• expressed in language that is too complicated for the witness to understand

Question 16

WHAT MAY THE JUDGE TAKE INTO ACCOUNT FOR DISCRETION FOR AN UNAACEPTABLE QUESTION?

Answer 16

• the age or maturity of the witness
• any physical, intellectual, psychological, or psychiatric impairment of the witness
• the linguistic or cultural background or religious beliefs of the witness
• the nature of the proceeding; and
• in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Question 17

Sequence of jury trials ( 8 points)

Answer 17

• jury is empanelled an foreperson selected
• prosecution gives their opening address
• prosecution case is presented
• defence give their opening address
• the defence case is presented
• prosecution make their closing statement
• defence make their closing statement
• judge sums up
• jury retires to decide the verdict