Witnesses (Ch 2 Part 2.1) Flashcards
Competence and compellability - starting point
Every person is competent to get evidence and every person who is competent is compellable (s 12). Competence is a preliminary question (s 189 voir dire). 
Witness is not competent if they…
Lack capacity to understand a question about a fact or to give an answer to such a question that can be understood, and that capacity cannot be overcome (notes section 30 interpreters and section 31 deaf and mute witnesses). To give sworn evidence they must be able to understand that they are under an obligation to tell the truth (if not may still give unsworn evidence if the court tells the person it’s important to tell the truth, maybe ask things they don’t know, and they should feel no pressure to agree with things that aren’t true.
Are a Judge or a jury in that proceeding (juror can give evidence about conduct of proceeding though).
And accused in a criminal trial as a Prosecution witness (applies to co-accused per Kirk).
Note, evidence given does not become in admissible if witness dies or ceases to be competent before concluding their evidence (however consider discretionary exclusion under ss 135 or 137, especially if no chance to cross-examine).
A person is not compellable if…
Substantial cost or delay would be incurred in insuring that a person with reduced capacity could understand questions and give answers that can be understood and adequate evidence will be given on that matter by other sources (s 14). 
A sovereign or head of state/country/MP in certain circumstances (s 15).
A Judge to give evidence about a proceeding unless the court leave leave (s 16).
And associated accused tried together with the accused (remember, not even competent for the prosecution per Kirk). They are compellable if tried separately from the accused, and in practice, their matter has finalised.
A spouse, de facto, parent, child in a criminal proceedings if they object to giving any evidence and the court finds that there is a likelihood that direct or indirect harm might be caused to the person or their relationship if they give evidence and the nature or extent of the harm outweighs the desirability of them giving evidence (with regard to the nature and gravity of the offence, substance and importance of the evidence, whether any other evidence of matter reasonably available, nature of relationship, whether would have to disclose matter received in confidence) (s 18).  Does not extend to a party adducing a written statement made by the witness. The prosecution must not comment on the objection, the courts decision or the failure of the witness to give evidence.
Refreshing memory in court with documents
Police offices in criminal proceedings: May give evidence in chief for prosecution by reading or being led through a written statement that was made and signed by the officer at the time of or soon after the events to which it relates and a copy of the statement has been given to the accused a reasonable time before the hearing (S 33). This extends to people who were police offices at the time the statement was made.
All other witnesses: Whilst giving evidence a witness must not use a document to revive their memory without leave. In determining whether to give leave, the court must consider whether the witness will be able to recall the fact or opinion adequately without the document AND whether the document is or is a copy of a document that was written when the events were fresh in the witnesses memory or was at such a time found to be accurate by the witness (and section 192). (s 32).
Refreshing memory out of court
The EA does not limit a witnesses ability to refresh their memory out of court. On the request of a party, the court may require the production of any doc of thing that was used to revive a witness is memory out-of-court (whether successfully or not). If, without reasonable excuse, the document or thing is not produced, the Judge may refuse to admit the evidence given by the witness so far is it concerns q fact as to which the witness so tried to revive their memory (34). The party that calls for production of the document is not required to tender it (35). Client legal privilege for any document used to revive memory will be waived (s 122(6)). 
The rule in Jones v Dunkel (civil)
An unexplained failure to call a witness who might reasonably be expected to be able to comment on a fact in issue or tender evidence may lead to an inference that the uncalled evidence would not have assisted the party. A jury direction to this effect maybe given.
The rules in Jones v Dunkel (criminal)
Jones v Dunkel does not apply in criminal proceedings. Where the prosecution fails to call or question a witness without providing a reasonable explanation, the defence may seek a direction under s 43 JDA. This direction will only be given where there is no reasonable explanation for the failure to call the witness. This direction informs the jury that it may conclude the witness would not have assisted the prosecution case.
Notes ethics rule 89 - The prosecution must call all witnesses whose evidence is admissible unless repetitious or plainly untruthful or unreliable. The prosecution must inform the opponent of any witness the prosecution is not calling (r 90).
Where the accused doesn’t give evidence or call a particular witness there is a prohibition on suggesting that the jury may conclude the accused is guilty, use the failure to provide an explanation of facts, or infer that the evidence would not have assisted the defence case (JDA s 42). Note ethics prosecution must disclose all material, including names and means of finding prospective witnesses, that could constitute evidence relevant to guilt or innocence (r 87).
Also, defence may request a direction that prosecution has an obligation to prove guilt, that the accused is not required to give evidence, that the jury should not speculate about what the evidence would have been and that the fact the accused didn’t give evidence is not evidence against the accused, is not an admission, must not be used to fill gaps and does not strengthen the prosecution case (JDA s 41). 
Leading questions (exam-in-chief)
A leading question is a question that directly or indirectly suggest a particular answer or that assumes the existence of a fact in dispute that has not yet been put to a witness. A leading question must not be put to witness in examination in chief unless the court gives leave, the question relates to an introductory matter, no objection is made and each other party has legal representation, the question relates to a matter that is not in dispute, or if an expert witness, the purpose of the question is to obtain an opinion about a hypothetical statement of facts (being facts in respect of which evidence has or is intended to be given).
Unfavourable witnesses
A party who call a witness may, with leave, question the witness as though it were cross examining them about the witnesses evidence that is unfavourable to the party, a matter about which the witness may reasonably be expected to have knowledge and about which it appears the witness is not making a genuine attempt to give evidence, or whether the witness has made a prior inconsistent statement. 
The effect of doing so is that such questioning is taken to be cross-examination for the purposes of the evidence act. Leading questions may be asked and Brown v Dunn must be complied with. With leave, the person may be questioned on matters going to credibility only.
In determining whether to grant leave, the court must consider whether the party gave notice of intention at earliest possible opportunity and the matters on which or extent to which the person is likely to be questioned by another party (in addition to section 192).
Witness called in error
A party is free to withdraw a witness provided that the witness has not been questioned about a matter relevant to a question to be determined.
Improper questions
The court must disallow an improper question or inform the witness that it may not be answered the duty of the court applies regardless of whether a party objects (41).
An improper question is a question that is misleading or confusing, is unduly annoying harassing intimidating offensive oppressive humiliating or repetitive, is put to the witness in a belittling insulting or otherwise inappropriate manner, or has no basis other than stereotype.
The question is not improper merely because the question challenges the truthfulness consistency accuracy of a statement or the question requires the witness to discuss a private or distasteful matter.
In proceedings for sexual assault or indecency barristers have an ethical duty which mirrors this requirement (r 62).  failure to comply may constitute unsatisfactory professional conduct or professional misconduct and entail disciplinary consequences.
At prosecutor must not seek to inflame or bias the court against the accused (r 85). 
Leading questions (XXN)
A party may put leading questions in cross-examination unless disallowed by the court. Court is to disallow if satisfied evidence would be better ascertained without use of leading questions. The court must take into account the extent to which evidence unfavourable to party who called the witness, witness has interests consistent with the XXNer, witness is sympathetic to party conducting XNN, or the witnesses age mental intellectual or physical disability which may affect answers.
PIS by witness (simple – credibility only)
- The PIS is only relevant to the witnesses credibility so it’s credibility evidence and is prima facie inadmissible (102).
- However, counsel can try to adduce evidence of the PIS through the witness in cross-examination if it could substantially affect the assessment of the witnesses credibility (103). The witness may be cross-examined about a PIS whether or not they’ve been given complete particulars or shown a document containing the PIS (s 43(1)).
- If W denies or doesn’t admit to making the PIS and counsel has informed W of the circumstances of making the PIS to allow W to identify it and has drawn W’s attention to inconsistencies (43), evidence of the PIS can be adduced otherwise than from W (leave not required because the evidence tends to prove that W made a PIS (106).
PIS by witness – credibility and hearsay (truth of PIS)
- The PIS is a PR made by W that is being adduced to prove the truth of the asserted fact contained in the PR. The PIS is prima facie inadmissible as hearsay (unless an exception applies, in which case it’s admissible for its hearsay purpose and is not credibility evidence).
- However, the PIS is relevant to W’s credibility. Whilst s 102 prohibits adducing credibility evidence:
—> s 103 allows for evidence of the PIS to be adduced through W in XXN if it could substantially affect the assessment of W’s credibility (W can be XXN’d about PIS whether or not they’ve been given complete particulars or shown a doc containing the PIS (s 43(1)).
—> s 106 allows evidence of the PIS otherwise then from W to be adduced where counsel has informed W of enough of the circs of making the PIS to allow W to identify it and has drawn W’s attention to the inconsistencies (43) and W denies or does not admit it (leave not required as the evidence tends to prove W made a PIS). - The PIS is therefore admissible for its credibility purpose and is only admissible for that purpose (as it’s excluded as hearsay). The PIS is therefore admissible for another purpose and s 60 renders it also admissible for its hearsay purpose.
- The party who called W may wish to seek that the court limit the use of the evidence under section 136, arguing that hearsay is inherently unreliable and when it was tested in court W denied it.
Previous representations of other persons
A cross examiner may only put a previous representation made by another person to a witness in accordance with section 44.
A cross examiner may XXN a witness about the previous representation and its contents if:
(a) evidence of the previous representation has been admitted or the court is satisfied that it will be; OR
(b) If the court is not satisfied it will be admitted and the representation is contained in the document, the document must be produced to the witness in a way that others present Do not see or hear content and a witness must then be asked whether, having seen or heard the document, they standby the evidence. Neither the witness or the XXNer can identify contents of the document.
