The Course of Evidence

Question 1

What is the role of a judge in a trial 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

What is the difference in oaths/affirmations for those 12yrs and over v those under 12yrs

Answer 2

• 12 or over - must take an oath or affirmation
• under 12 - must be informed by the judge of the importance of telling the truth and not telling lies, and must make a promise to tell the truth

Question 3

Who may comment on the fact that the defendant did not give evidence at their trial
(right to silence)

Answer 3

• defendant
• defendant’s counsel
• judge

Question 4

What is the purpose of evidence in chief

Answer 4

To elicit testimony that supports the case of the party calling the witness

Question 5

What is the definition of a leading question

Answer 5

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

Question 6

What are the three reasons why leading questions are generally not permitted

Answer 6

• .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
• 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 7

Leading questions must not be asked in evidence in chief or re-examination unless…..

Answer 7

• question relates to introductory or undisputed matters
• question is put with the consent of all other parties
• judge allows the question, in exercise of the judges discretions

Question 8

In what circumstances is it likely that leading questions will be allowed by the judge in exercise of the judges discretion

Answer 8

• identification evidence
• assisting memory
• hostile witness
• young persons, english second language, limited intelligence

Question 9

What must be done if a witness wishes to consult a document to refresh their memory while giving evidence in court

Answer 9

• leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• the document must have been made or adopted by a witness at a time when their memory was fresh

Question 10

How may a witness refresh their memory out of court

Answer 10

Referencing statements which they may have made before. The requirement is that the document relates to matters which are within the witnesses own knowledge

Question 11

When is a previous consistent statement is admissible

Answer 11

• responds 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
• forms an integral part of the events before court
• consists of the mere fact that a complaint has been made in a criminal case

Question 12

If an application is granted to declare a witness “hostile”, what questions can they be asked

Answer 12

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

Question 13

What is the definition of a hostile witness

Answer 13

Means the witness:

• exhibits/appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on the matter about which the witness may reasonably be supposed to have knowledge
• 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
• refuses to answer questions or deliberately withholds evidence.

Question 14

What are the two purposes of cross-examination

Answer 14

• elicit information supporting the case of the party conducting the cross-examination
• challenge the accuracy of the testimony given in evidence in chief

Question 15

When is there a duty to cross examine

Answer 15

• 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 16

In relation to unacceptable questions what type of questions might a judge disallow

Answer 16

• improper
• unfair
• misleading
• needlessly repetitive
• expressed in complicated language

Question 17

When can leave be given to give rebuttal evidence

Answer 17

• 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
• was not available or admissible before the prosecutions case was closed
• required to be admitted in the interests of justice for any other reason

Question 18

What are some examples of judicial warnings where a judge may direct the jury that evidence should be scrutinised with care or given less weight

Answer 18

• unreliable evidence
• certain ways of giving evidence
• lies
• children’s evidence
• identification evidence
• delayed complaints or failure to complain in sexual cases

Question 19

When might a judge give a warning that evidence may be unreliable

Answer 19

• hearsay evidence
• evidence of a statement by the defendant if that evidence is the only evidence implicating the defendant
• evidence by a witness who may have a motive to give false evidence
• evidence of a statement by the defendant to another person while both were in prison or other place of detention
• evidence about conduct of the defendant if the conduct was more than 10 years ago

Question 20

When a warning for lies is given what direction should be included

Answer 20

• the jury needs to be satisfied that the defendant did lie before they use the evidence
• people lie for various reasons
• the jury should not necessarily conclude that just because the defendant lied that they are guilty

Question 21

What should the O/C advise witnesses of in preparation for trial

Answer 21

• time, date, place of trial and exhibits required
• advise them of procedure for giving evidence
• refresh memory from statement before court
• remain within call if excluded from courtroom
• check witnesses are not known to jurors
• warn not to mix or speak with jurors
• witness expenses

Question 22

What should you do if you need to refer to your notebook in court

Answer 22

• ask the courts permission
• introduce the material properly
• seal of other entires as defence and the jury are entitled to view your notes
• are only allowed to refresh your memory - cannot read the whole entry unless permission is granted