Topic 11- Examination of Witnesses

Question 1

What is examination-in-chief?

Answer 1

This is the examination of a witness by the party calling him

The object is to elicit evidence supportive of the party’s case

Question 2

What is the general rule in examination-in-chief questioning?

Answer 2

You cannot ask leading questions

Question 3

What is a leading question?

Answer 3

A question framed in such a way to suggest the answer sought

Question 4

Can leading questions be allowed in examination-in-chief?

Answer 4

They may be allowed in the interests of justice, at the discretion of the judge

Question 5

What circumstances can leading questions be asked in examination-in-chief?

Answer 5

May be asked on formal and introductory matters

If the witness is to be treated as hostile

Question 6

What circumstances can a document be used to refresh the witness’ memory in EiC?

Answer 6

If the document records his memory at the time it was made

That his recollection at that time is likely to have been better than at the time of oral evidence

Question 7

What is the definition of a document?

Answer 7

Anything in which information of any description is recorded

Does not include sounds, or moving images

Question 8

What is the requirement for a document to be used as a refresher for a witness?

Answer 8

It must have been prepared by the witness himself

Question 9

If a witness refreshes his memory from a statement before going into the witness box, do the refreshing conditions apply?

Answer 9

No

Question 10

If a witness has refreshed their memory from a document, can the other side inspect the document?

Answer 10

Yes, and they can then cross-examine the witness upon the relevant matters

Question 11

Are previous complaints made by a witness admissible?

Answer 11

Yes

Question 12

Can previous consistent or self-serving statements be admissible in examining a witness?

Answer 12

No, but there are exceptions

Question 13

What are the exceptions to admissibility of self-serving/previous consistent sentences?

Answer 13

Res gestae

Accusations

Question 14

Is this statement admissible:

I killed X. If I had not done so, X would have certainty killed me.

Answer 14

Yes, as it is an accusation which is admissible

Question 15

If a witness admits making an inconsistent statement, is that statement admissible?

Answer 15

Yes

Question 16

Can a party ask questions concerning their own witness’ bad character, previous convictions, etc?

Answer 16

No, they should not impeach or discredit their own witness

However, there is one exception

Question 17

What is the exception to a party asking questions on their own witness’s bad character?

Answer 17

If it supports part of the prosecution case

Question 18

When can an application to treat a witness as hostile be made?

Answer 18

When the witness first shows signs of hostility

Question 19

What are signs of a hostile witness?

Answer 19

If the witness gives contradictory and adverse statements

Question 20

If a judge determines a witness to be hostile, can this be appealed?

Answer 20

No, the decision will be absolute

Question 21

What are the factors a judge will consider when deciding if a witness is hostile?

Answer 21

If the witness is willing to assist the trial

If the witness has been proven to be hostile

If the witness has been proven to have made inconsistent statements

Question 22

What is cross-examination?

Answer 22

This is the questioning of a witness by the opposing party

Question 23

Can an accused cross-examine any witness called by the prosecution?

Answer 23

Yes

But there are exceptions

Question 24

What are the exceptions for an accused in person cross-examining any witness called by the prosecution?

Answer 24

If they have been charged with a sexual offence, they may not cross-examine the complainant

If the witness is a protected witness

Question 25

What are the circumstances where the judge will refuse the accused in person to cross examine a witness?

Answer 25

If the quality of evidence by the witness would be diminished by cross-examination If it would not be contrary to the interests of justice

Question 26

Where an accused in person is prohibited from cross-examining a witness, what will the court suggest?

Answer 26

They will invite the accused to appoint a legal representative

Question 27

What is the objective of cross-examination?

Answer 27

To elicit from the witness evidence supporting the cross-examining party's version of facts in issue To weaken or cast doubt upon the accuracy of the evidence To impeach the witness's credibility

Question 28

Can the judge ask a witness questions?

Answer 28

Yes, in particular where the accused is unrepresented, and it is in the interests of justice

Question 29

What circumstances may a judge ask a witness questions?

Answer 29

In order to clarify ambiguities in answers

Question 30

What are the restrictions on questioning in cross-examination?

Answer 30

The questions should be confined to putting questions of fact No need for lengthy questioning on matters that aren't in issue

Question 31

How can the judge restrict cross-examination?

Answer 31

By putting time limits on the duration of the questioning

Question 32

What are collateral matters?

Answer 32

Matters which go merely to credit but which are irrelevant to the issues in the case

Question 33

Is evidence that contradicts a witness' denial of bias towards party admissible?

Answer 33

Yes

Question 34

After cross-examination of a witness, can that witness be re-examined?

Answer 34

Yes, but they should be asked about matters arising in cross-examination

Question 35

What special measures can be used for special witnesses (eg, children, disabled)?

Answer 35

Screening the witness from the accused Giving evidence by live link Giving evidence in private Removal of wigs and gowns Video recording of evidence Witness anonymity orders

Question 36

What are the main categories of eligibility for special witnesses?

Answer 36

Witnesses under 18 Vulnerable witnesses affected by mental or physical impairments Witnesses in fear or distress Complainants of sexual offences or slavery Witnesses in homicide or firearm cases

Question 37

If a witness is not eligible for special measures, what can they do to get them?

Answer 37

The court must determine whether the quality of the evidence would be diminished by the witness' condition They can then give them special measures for testifying

Question 38

What are the circumstances needed for a witness to use live link?

Answer 38

Person's availability Suitability of live link facilities Importance of the evidence

Question 39

What is an intermediary measure for a defendant?

Answer 39

Where the defendant can be assisted by an intermediary, to facilitate their participation in the trial

Question 40

What is the role of an intermediary?

Answer 40

To assist a defendant's communication needs and effective participation in trial

Question 41

What are the two conditions for a witness to be offered to refresh their memory under s139?

Answer 41

The document records their recollection at the time Their recollection the time was better than during their examination

Question 42

Where a witness mentioned a key detail in their witness statement, but then denies it in examination, what should be done?

Answer 42

An application for permission to cross-examine the witness on the basis that they are a hostile witness

Question 43

Can a hostile witness be re-examined?

Answer 43

Yes

Question 44

If a witness is making statements that obviously do not line up with their witness statement (likely due to being hostile), what can the examining party do during their EiC?

Answer 44

Apply to ask leading questions to the witness This is to treat them as a hostile witness

Question 45

When a defendant enters a guilty plea, can they choose to offer to give evidence against their co-accused as a prosecution witness?

Answer 45

Yes