Trial Flashcards
are opening and closing speeches evidence?
no
explain closing/leading questions
a question which prompts the answer wanted. Usually, a yes or no response.
explain open/non-leading questions
a question which requires a more detailed answer (i.e. starts with what, who, where, why, when)
what is the order of questioning?
1) W takes oath / affirmation
2) Examination in chief by party who called W
3) Cross examination by other party
4) Re-examination by party who called W
when will W not take an oath?
if they are under 14
explain examination in chief
o Purpose is for W to tell their story. Counsel cannot ask leading questions.
explain cross-examination
o Purpose is to put case to W (i.e. suggesting their version of the case is wrong and putting client’s version to them), undermine their credibility & obtain evidence that supports your case
o Closed questions asked as easier to control the W
o Must be issues to W a party intends to rely on i.e. D claims was acting in self-defence. D’s counsel must put this to V on cross-examination otherwise D will not be entitled to enter the witness box and give evidence on this
explain re-examination
o Closed and open questions allowed. W can only be asked about things that arose in examination in chief and cross examination.
o Normally only happens to clarify any confusion.
are other Ws allowed in the court?
- Any Ws (not inc. experts) are not allowed in the court until D has testified
what is the order of P’s evidence?
- Oral evidence usually complainant goes first
- W/s of those not giving oral evidence read out (i.e. hearsay or s9 statement)
- Summary or full transcript of interview read out unless D’s solicitor objects. If so, the audio recording is played
explain P’s opening speech
- Factual details, outline of P’s case, Ws they will call & summary of evidence
- The law, elements to secure a prosecution, issues that may arise (i.e. admissibility) BOP and that D must be acquitted if they cannot be sure of guilt
when is a Voir Dire hearing held?
- Held if D seeks to challenge the admissibility of P’s evidence i.e. confession challenged under s76, EWT under s78, bad character
what happens at Voir Dire hearing?
- If in the CC, jury will leave the court room.
- Ws relevant to admissibility will give evidence.
- Both parties will make submissions.
- If inadmissible, P cannot make any further reference to it at the trial
when will there be no case to answer?
There will be no case to answer where (R v Galbraith test):
o P has failed to put evidence to prove an essential element of the offence; or
o The evidence has been so discredited by cross-examination, or it is so manifestly unreliable, no reasonable tribunal could safety convict on it
what happens is a submission of no case to answer is made?
- P must be given the opportunity to make representations.
- If successful, charge is dismissed.
give examples of no case to answer
- Example D is charged with bike theft. P has failed to prove the bike belonged to someone else. An essential element of theft is that the stolen item belonged to someone else. D’s solicitor should make a submission.
- Example D is charged with ABH. V said attack was unproved. During cross examination, V admits that he through the first punch, he did know D and exaggerated his injuries. D’s solicitor should make a submission.
explain the order of D’s evidence
If D is giving evidence, they are called first unless the court directs otherwise
does D need to give evidence?
D is not a compellable W, but should give evidence:
o Where D has raised a defence or disputes truth of P evidence;
o If D is consistent in interview and evidence as this bolsters credibility;
o To prevent inferences under s35 at trial if P raises issues that require an explanation from D and D fails to do this
what happens if D is found G?
either:
o Sentence immediately. D will deliver plea in mitigation; or
o Adj. for reports. D will need to be bailed or remanded in custody
Bail less likely in CC if offence is serious
what happens if D is found NG?
discharged and free to go.
Judge will usually order their legal costs are paid from the state fund (unless funded by RO)
explain D changing their plea from NG to G
when might this happen?
- can be done at any time before verdict with discretion of the judge
o Might happen where submission of no case to answer fails or judge has ruled evidence D intended to rely on inadmissible
explain D changing their plea from G to NG
when might this happen?
must apply in writing as soon as practicable after becoming aware of the grounds (i.e. D misunderstood P’s case)
what is the order of trial in the MC?
- Opening speech by prosecution
- Prosecution evidence
- Consideration of no case to answer.
- Possible opening speech from defence
- Defence evidence (if above submission is not made / is made and fails)
- Potential closing speech from prosecution.
- Potential closing speech from defence.
- Mags retire to consider verdict and then deliver this
re: Magistrates’ Court
re: Magistrates’ Court
what will happen if D wants to challenge the admissibility of P’s evidence?
MC will either:
o Hold a voir dire hearing. However, in the MC because the Mags decide on fact and law, there will often be a pre-trial hearing to deal with admissibility to avoid the trial bench being subconsciously influenced.
o Hear the evidence and consider admissibility if D makes a case of no submission to answer or in closing speeches
re: Magistrates’ Court
explain ‘consideration of no case to answer’
D can make a submission but also the court can, of its own motion or on application of D, acquit where there is no case to answer (see above test).
re: Magistrates’ Court
will D make an opening or closing speech?
they can choose whether to make opening or closing speech
re: Magistrates’ Court
when is P allowed to make a closing speech?
- Permissible where D has introduced evidence other than their own or they are legal represented
- P should only make a speech where the matter is complicated and it will assist the court
re: Magistrates’ Court
what are tips for the defence in relation to the closing speech?
- Remind court of BOP and D must be acquitted if not satisfied.
- Refer to legal elements to be proved and where P has come up short
- Evidential issues i.e. give Turnbull warning, undermine credibility
- List weaknesses of P evidence and strength of D evidence
