The Course of Evidence Pt 2 Flashcards
WHEN MAY REBUTTAL EVIDENCE BE ADMITTED?
- 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
- is required to be admitted in the interests of justice for any other reason
2 RULES OF REFRESHING MEMORY
- refreshment of memory by reference to written documentation in court
- refreshment of memory out of court.
What is ‘a view’ and when is it held?
A “view” is an inspection of a place or thing that is not in the courtroom. A judge decides if it is held. If held all parties and lawyers are entitled to attend.
Why is a previous consistent statement generally inadmissible?
When statements are used over and over again in court it gives a greater impact and if put to the jury there is danger it might place more weight on the evidence than it warrants. This is to prevent repetitive material in the Courts in order to sure up the witnesses consistency.
What are the two purposes of cross examination?
- 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
Cross examination for inconsistent statements may include ….?
- written witness statements
- oral statements
Summary of section 96 - cross examination on previous statements
A witness may be cross-examined about a previous statement, whether in oral or documentary form without being shown the statement or having its contents disclosed by the cross-examine
The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
What happens when a witness denies making the previous statement?
Section 92(2)(a) and (b) apply
(a) - the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing
(b) - the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony
Re examination
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.
What types of judicial warnings can be given out?
- evidence may be unreliable – s122
- directions about certain ways of giving evidence – s123
- lies – s124
- directions about children’s evidence – s125
- identification evidence – s126
- delayed complaints or failure to complain in sexual cases – s127
What evidence must a Judge consider a warning - Section 122 (2)
(a) hearsay evidence
(b) evidence of uncorroborated defendant statement
(c) evidence given by a witness with motive of giving false and prejudicial evidence
(d) evidence of a statement by defendant to another person while both detained in prison, police station,
(e) evidence about defendants conduct 10 years ago
Referring to your notebook
- Ask the court’s permission.
- Introduce the material properly
- Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
- Remember that you are only allowed to refresh your memory – you cannot read the whole entry unless you have permission to read the notes of the interview.
