Witnesses

Question 1

What is Witness Competence?

Answer 1

Legal permission to give Evidence in Court.

Question 2

What are the Limits of a Defendant’s Competence in a Case with Multiple Defendants?

Answer 2

Co-Defendants cannot Testify for the Prosecution against one another until their respective Proceedings conclude.

Question 3

When is a Child or a Disabled Person Competent?

Answer 3

Generally, the Test is whether the Person can:

• Understand the questions posed to them; and
• Provide understandable answers thereto.

If the Person is Deaf or Speech-Impaired, the Test is whether they understand the importance of taking an Oath or Affirmation.

Question 4

What are the Limits of an S/CP’s Competence?

Answer 4

None. An S/CP can Testify for either the Prosecution or the Defence.

Question 5

What is Witness Compellability?

Answer 5

Legal power to require Testimony.

Generally, if a Witness is Competent, then it is Compellable.

Question 6

What are the Limits of the Defendant’s Compellability?

Answer 6

The Defendant cannot be compelled to Testify on its own behalf.

Question 7

What are the Limits of an S/CP’s Compellability?

Answer 7

For the Defence:

• Compellable to Testify in support of their Partner.

For the Prosecution:

• Only Compellable to Testify against their Partner if the Offence involves:
  • Domestic Violence: Assault, injury, or threat of injury to the S/CP.
  • Child Harm or Abuse: Assault, injury, or threat of injury to a child under 16.
  • Sexual Offenses Against Minors: Sexual Offences involving a child under 16.
  • Related Offenses: Attempts, conspiracy, or aiding and abetting the above Offences.

Question 8

When may a Witness provide Non-Expert Opinion Evidence?

Answer 8

The opinion is a common observation that reflects general knowledge. Classic examples include:

• Drunkenness: Descriptions of signs of intoxication.
• Visual Recgonition: Description and Identification based on observed visual features.
• Auditory Identification: Description and Identification based on observed auditory features.

Question 9

When may a Witness provide Expert Evidence?

Answer 9

• Expert Evidence is needed.
• The Witness is unbiased and independent.
• The Witness possesses the relevant qualifications.
• The Witness Testifies within the bounds of its expertise.

Generally, the Jury is not obliged to accept Expert Evidence, even if it is uncontradicted, in which case it is Directed to do so.

Question 10

What are the Limits of the Privilege against Self-Incrimination?

Answer 10

• It does not apply in Civil Proceedings.
• It cannot be used to protect others, only oneself.
• The Defendant cannot claim the Privilege, though it has the Right to Silence.
• It does not prevent Investigators from obtaining the same information through other means.

Question 11

When may a Witness give Unsworn Evidence?

Answer 11

• When the Witness cannot fully appreciate the significance of an Oath or Affirmation; but still
• Understands their responsibility to be honest and the occasion’s seriousness.

In all other cases, an Oath or Affirmation is mandatory.

Refusal to take an Oath or Affirmation can be treated as Contempt of Court.

Question 12

What is Examination in Chief?

Answer 12

The calling of Witnesses to:

• Give Testimony; and
• Field Non-Leading Questions from the Calling Party.

Question 13

When is a Leading Question acceptable?

Answer 13

• The subject is undisputed.
• The Witness is being Cross-Examined.
• The Witness has been declared Hostile.

Elsewise, answers from Leading Questions are lesser Probative Value

Question 14

What is a Hostile Witness?

Answer 14

One that is:

• Unwilling to Testify truthfully; or
• Contradicts their Prior Statements.

In which case, the Calling Party may seek a declaration from the Judge.

Question 15

What is the Effect of a Witness being declared Hostile?

Answer 15

• The Calling Party can Cross-Examine the Witness; and
• Introduce its Prior Inconsistent Statements as substantive Evidence.

Question 16

When is a Previous Consistent Statement admissible?

Answer 16

§120 Complaints:

• Prompt complaints about a Crime to an authority.

Res Gestae:

• Statements made as an immediate reaction to a Crime.

Allegation of Fabricated Testimony:

• In response to an allegation of fabricated Testimony.

Response to Police Allegations:

• Statements made in response to Police accusations are admissible.

Otherwise, they are inadmissible.

Question 17

When can a Witness use a Written Statement as a Refresher?

Answer 17

Outside of Court, before giving Oral Testimony.

Question 18

When can a Witness use a Written Statement in its Testimony as a Refresher?

Answer 18

• The Parties agree.
• It provides a better recollection than they can independently offer.
  • This is a very high bar.

The Counterparty may apply to have the Statement admitted into Evidence.

Question 19

What is Cross-Examination?

Answer 19

An opportunity to question the Witness by the Counterparty.

Question 20

What is the Browne v Dunn Principle?

Answer 20

The Cross-Examiner must directly challenge any part of a Witness’s Testimony they intend to dispute.

Question 21

What is the Finality Principle?

Answer 21

An answer to a question on a collateral issue is considered final.

Question 22

What are the Restrictions on Cross-Examination?

Answer 22

• Leave for Sexual History: Questions on prior sexual history require Court Leave.
• Judicial Discretion: The Judge may limit Cross-Examination to certain issues.
• Professional Conduct: The Cross-Examiner should not aim to unduly distress or offend a witness without a specific evidentiary purpose.

Question 23

What is Re-Examination?

Answer 23

An opportunity for the Calling Party to resolve Issues raised in Cross-Examination.

Question 24

What are the Restrictions on Re-Examination?

Answer 24

• Same as Examination in Chief.
• Scope limited to Issues raised in Cross-Examination.

Question 25

Can a Witness sit in Court before being Called?

Answer 25

No, unless it is the Defendant or an Expert.