Week 5

Question 1

What is a leading question?

Answer 1

A question which directly or indirectly suggests an answer or assumes the existence of a fact the existence of which is in dispute.

Question 2

Why don’t we ask leading questions?

Answer 2

It is unfair (R v Thynne)

Question 3

Section 32 Evidence Act 1995

Answer 3

Attempts to revive memory
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account—
(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that—
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Question 4

When can a Police Officer read their statement in the box or onto the record?

Answer 4

Section 33 Evidence Act 1995 - Statement made within 13 days of the incident. (DAYS NOT WEEKS) Orchard v Spooner (1992)

Question 5

When conferencing a witness, what should you remember?

Answer 5

Do not conference a witness in the presence of another witness & be away from the defendant

Question 6

What constitutes a breach of the rule of Browne v Dunn

Answer 6

A breach occurs when a witnesses’ evidence is first challenged, ONLY after they have been cross-examined. The breach is established if you don’t cross -examine the witness at all on a point of difference in the case.

Question 7

When does the Prosecutor have to comply with Browne V Dunn?

Answer 7

1. Defence witness gives evidence contrary to Prosecution version;
2. Prosecution witness unfavourable, or
3. Defendant gives evidence contrary to prosecution version

Question 8

What is the difference between Strict and Liberal application in Browne v Dunn

Answer 8

Strict Application: The court refused to allow evidence to be called by the defendant upon certain points to contradict a crown witness. (Schneidas [1980])

Liberal Application: The court denied the defence the ability to make the submission that the unchallenged evidence of a witness should not be believed. (Seymour v ABC)

Question 9

Remedies for Browne v Dunn breaches?

Answer 9

Different types exist; may involve a strict or liberal application of the rule. appropriateness depends upon the circumstances of the case, & the goal is to secure fairness. One such remedy is codified in Section 46 of the Evidence Act - Recalling witnesses.

Question 10

Reasons that B v D breaches occur?

Answer 10

Reasons include:
1. Mere oversight,
2. Inexperience,
3. inadvertence or carelessness
4. fabrication / recent invention

Question 11

Does B v D apply to criminal matters, what is the authority?

Answer 11

Yes. R v Birks (1990) 19 NSWLR 677

Question 12

Where does an Prior Inconsistent statement come from?

Answer 12

Section 43 Evidence Act 1995
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not—
(a) complete particulars of the statement have been given to the witness, or
(b) a document containing a record of the statement has been shown to the witness.
(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner—
(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.
(3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.

Question 13

Leading Question provisions

Answer 13

Section 37 (applies only for evidence in chief) & Section 42 (applies only for cross-examination)

Question 14

What are the 2 key authorities for calling all witnesses?

Answer 14

Whitehorn v R [1983] HCA 42, &
R v Apostilides [1984] HCA 38

Question 15

What must the prosecution do if deciding not to call a particular witness

Answer 15

Explain to the court reasons why they are not being called.

Question 16

3 key reasons a person becomes unfavourable under Section 38

Answer 16

1. Evidence given is unfavourable,
2. Not making a genuine attempt to give evidence, or
3. Witness has made a prior inconsistent statement

Question 17

What must we establish if we want to adduce evidence about a prior inconsistent statement

Answer 17

Get the witness to identify WHERE the statement was alleged to have been made

Question 18

If a victim won’t agree they made a statement, what must we show?

Answer 18

That the witness MADE the statement

Question 19

What’re we going to point out in a prior inconsistent statement?

Answer 19

What the inconsistencies are.

Question 20

What’s the purpose of tendering a PIS under Section 60?

Answer 20

Tendered for a non-hearsay purpose

Question 21

Where does the Court’s control over questioning come from?

Answer 21

Section 26 Evidence Act 1995

Question 22

What provision provides for the Prior Inconsistent Statement of a witness?

Answer 22

Section 43 Evidence Act 1995

Question 23

Should the could disallow a question from being asked, what Section would they rely on?

Answer 23

Section 41 Evidence Act 1995

Question 24

Evidence is not to be taken as irrelevant only because…

Answer 24

A. The credibility of the witness, or
B. The admissibility of other evidence, or
C. The failure to adduce evidence