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Criminal Evidence > XIC, XX, REX, Criminal and Civil > Flashcards

XIC, XX, REX, Criminal and Civil Flashcards

1
Q

When should the D generally testify?

- 1 Point

A
  • Generally before any other defence witness
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2
Q

In CRIMINAL proceedings when will the witness NOT give ORAL EVIDENCE?

( - 2 Point )

A
  • When the judge has made a SPECIAL MEASURES direction for video evidennce
  • When the matter is NOT CONTROVERSIAL and the parties have AGREED to adduce the WITNESS STATEMENT
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3
Q

How is EXAMINATION CHIEF carried out in CIVIL proceedings?

- 1 Point

A

Normally the WITNESS STATEMENT will stand as EVIDENCE IN CHIEF in civil proceedings

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4
Q

Can witnesses discuss their evidence with other witnesses?

- 1 Point

A

No. Neither can they read or hear other witness’s evidence.

NOTE:
Police officers may discuss and confer notes which they take immediately after the event however this may affect the WEIGHT of the evidence due to the risk of COLLUSION/CONTAMINATION

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5
Q

In case of CRIMINAL PROCEEDINGS
When will a witness (whilst giving oral evidence) be allowed to REFRESH his MEMORY from a document made/verified by him?

( - 2 Points )

A
  • if he gives EVIDENCE that the document RECORDS his RECOLLECTION of the matter at an earlier time
  • his recollection of the matter is likely to have been SIGNIFICANTLY BETTER at the earlier time than it is when he testifies

NOTE:
Applies to earlier SOUND RECORDINGS accounts as well

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6
Q

Is it possible to MEMORY REFRESH from a COPY of the document?

( - 1 Point )

A

Yes

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7
Q

In case of CIVIL PROCEEDINGS
When will a witness (whilst giving oral evidence) be allowed to REFRESH his MEMORY from a document made/verified by him?

( - 2 Points )

A
  • The witness MADE/VERIFIED the document
  • The document was CONTEMPORANEOUS - made at the time of the events described or soon after the facts were still FRESH in his memory

NOTE:
CONTEMPORANEITY is a question of FACT and DEGREE.
The court has the discretion to allow memory refresh from a non-contemporaneous document

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8
Q

When are MEMORY REFRESHING DOCUMENTS admissible?

- 5 Points

A

Usually they are NOT ADMISSIBLE
EXCEPT:
- Where the witness is XXd on parts of the document NOT USED for MEMORY REFRESHING and the party who called the witness WANTS IT ADMITTED
- Where it is ALLEGED that the document is FABRICATED
- where the EVIDENCE of a witness is INCONSISTENT with the document
- DIFFICULT for the JURY to follow XX without a COPY

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9
Q

Hearsay exception (Memory Refresh)?

- 1 Point

A

Where a witness is XXd on a DOCUMENT used by him to MEMORY REFRESH whilst giving evidence, and the document is consequently received in evidence, THE STATEMENT IS ADMISSIBLE AS EVIDENCE OF THE MATTER STATED of which THE WITNESS’S ORAL EVIDENCE WOULD BE ADMISSIBLE

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10
Q

Admissibility of PREVIOUS STATEMENT where a witness in CRIMINAL PROCEEDINGS is UNABLE TO REMEMBER what they said EARLIER

A

Where a witness cannot be REASONABLY EXPECTED to remember matters stated by him in a PREVIOUS STATEMENT, the previous statement may be ADMISSIBLE as EVIDENCE OF THE MATTER STATED of which the WITNESS’S ORAL EVIDENCE WOULD BE ADMISSIBLE.

May be admissible IF:
- the statement was made by the witness when the matters stated were FRESH in his MEMORY but he does not REMEMBER them well enough to give oral evidence and CANNOT BE REASONABLY EXPECTED TO DO SO

AND

  • He testifies that to the BEST OF HIS BELIEF he MADE the statement and it STATES THE TRUTH
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11
Q

When are PREVIOUS CONSISTENT STATEMENTS admissible?
IN CRIMINAL PROCEEDINGS
( - 6 Points )

A

Generally inadmissible because they contravene the RULE AGAINST PREVIOUS CONSISTENT STATEMENTS and the RULE AGAINST HEARSAY.

But ADMISSIBLE when falls under one of these EXCEPTIONS:

  • [HEARSAY EXCEPTION] To REBUT SUGGESTION OF RECENT FABRICATION
  • [HEARSAY EXCEPTION] Where the statement IDENTIFIES or DESCRIBES a PERSON, OBJECT or PLACE
  • [HEARSAY EXCEPTION] Where it is a COMPLAINT made by the VICTIM of an alleged offence
  • Where it is a WHOLLY EXCULPATORY statement made by the D
  • Where the statement forms part of RES GESTAE
  • Where it is a statement made by a person FOUND in POSSESSION of RECENTLY STOLEN GOODS or OTHER INCRIMINATING ITEMS and it EXPLAINS his POSSESSION

NOTE:
If the statement falls within one of the 6 exceptions it is admissible as evidence of CREDIBILITY
Where the statement ALSO falls within a HEARSAY EXCEPTION it is admissible as evidence of CREDIBILITY “AND” of the MATTER STATED

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12
Q

When are PREVIOUS CONSISTENT STATEMENTS admissible?
IN CIVIL PROCEEDINGS
( - 2 Points )

A

Only admissible
- To REBUT a suggestion of RECENT FABRICATION
OR
- with LEAVE OF COURT

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13
Q

What can be done when a witness becomes UNFAVOURABLE?

- 1 Point

A

Call other witnesses/adduce other evidence to prove what the witness has failed to prove?

NOTE:
BAD CHARACTER EVIDENCE cannot be adduced by the party who called the witness to DISCREDIT the UNFAVOURABLE witness

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14
Q

Who is an UNFAVOURABLE witness?
Who is a HOSTILE witness?

( - 2 Points )

A
  • UNFAVOURABLE: A witness who does not COME UP TO PROOF/FAILS TO PROVE but is not HOSTILE
  • HOSTILE: A witness who is UNWILLING to tell the TRUTH on behalf of the party calling him to XIC
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15
Q

How to understand whether a witness is HOSTILE?
Why is the witness behaving this way?

( - 2 Points )

A
  • witness has made PREVIOUS INCONSISTENT STATEMENTS / FORGETS FACTS / REFUSES TO ANSWER QUESTIONS
  • motive is IRRELEVANT
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16
Q

What can be done in case of a HOSTILE witness?

- 2 Points

A
  • give the witness a CHANCE to MEMORY REFRESH

- if refuses seek LEAVE OF COURT to DECLARE WITNESS HOSTILE

17
Q

What FACTORS should the judge take into account when exercising his DISCRETION to DECLARE THE WITNESS HOSTILE?

( - 6 Points )

A
  • NATURE of any EVIDENCE given by the witness
  • the WITNESS’S DEMEANOUR
  • RESPONSIVENESS to QUESTIONS
  • INCONSISTENCIES between EVIDENCE and any PREVIOUS STATEMENT
  • ANY EXPLANATION for this DIFFERENCE
  • REFUSAL to MEMORY REFRESH
18
Q

When a witness has been DECLARED HOSTILE, what can be done to deal with him?

( - 3 Points )

A
  • OTHER EVIDENCE can be called to CONTRADICT the WITNESS
  • TRIAL JUDGE has a discretion to allow LEADING QUESTIONS
  • seek LEAVE OF COURT to XX the witness in relation to his PREVIOUS INCONSISTENT STATEMENT
19
Q

How to PROVE a PREVIOUS INCONSISTENT STATEMENT?

- 2 Points

A

Where witness DENIES making such statement,

  • mention CIRCUMSTANCES of supposed statement (sufficient to designate the particular occasion)
  • ask WHETHER or NOT he has MADE the STATEMENT
20
Q

In case of PREVIOUS INCONSISTENT STATEMENTS. What happens if he ACCEPTS the previous statement
What happens if he DENIES?

( - 2 Points )

A
  • IF ACCEPTS:
    then it becomes the witness’s testimony but can affect CREDIBILITY
  • IF DENIES:
    it becomes ADMISSIBLE as EVIDENCE OF CREDIBILITY
    AND
    EVIDENCE OF MATTER STATED of which ORAL EVIDENCE would be ADMISSIBLE
21
Q

When a witness DENIES a PREVIOUS INCONSISTENT STATEMENT and it becomes admissible as evidence of CREDIBILITY and MATTER STATED.
What are the JURY’S OPTIONS?

( - 3 Points )

A
  • ACCEPT the truth of the witness’s CURRENT TESTIMONY
  • ACCEPT the truth of the PREVIOUS STATEMENT
  • IGNORE BOTH STATEMENTS on the basis that witness is NOT WORTHY OF BELIEF
22
Q

What are PROPER and IMPROPER questions in XX?

- 2 Points

A

PROPER:
questions of a nature that the truth of IMPUTATION conveyed by them would SERIOUSLY affect the OPINION of the court as to the WITNESS’S CREDIBILITY.
e.g. ask about previous convictions or discreditable conduct or suggest that a witness is biased

IMPROPER:
questions in which the IMPUTATION concerns matters so REMOTE in time or matters so SLIGHTLY RELEVANT to CREDIBILITY
that the imputation is GREATLY OUT OF PROPORTION

23
Q

What are COLLATERAL MATTERS and what do they RELATE to?

- 2 Points

A
  • A matter is COLLATERAL when the PARTY XXing the witness COULD NOT have called evidence on that matter fit the WITNESS had not been called
    (because the MATTER is not RELEVANT to an ISSUE in the proceedings)
  • COLLATERAL MATTERS only RELATE to CREDIBILITY of the WITNESS
24
Q

What will the judge take into ACCOUNT on deciding whether a matter is COLLATERAL?

( - 2 Points )

A
  • necessity, if possible, of not involving the jury in such distractions
  • whether admission is in the interest of justice
25
Q

What is the RULE OF FINALITY?

- 1 Point

A

Answer given by a witness in response to a question regarding COLLATERAL MATTERS is FINAL

NOTE:

  • Evidence cannot be adduced to rebut the answer
  • but there are EXCEPTIONS to the rule of FINALITY
26
Q

What are the exceptions to the RULE OF FINALITY?

- 5 Points

A
  • Where witness DENIES AN ALLEGATION OF BIAS
  • Where witness DENIES PREVIOUS CONVICTIONS
  • Where witness DENIES PREVIOUS INCONSISTENT STATEMENT
  • Where witness has PHYSICAL/MENTAL problems resulting in unreliable evidence
  • Where witness has a GENERAL REPUTATION OF UNTRUTHFULNESS
27
Q

What are the situations in which D will NOT be allowed to XX the C in PERSON?

( - 4 Points )

A

NOTE: Applies to SEXUAL OFFENCES, ASSAULT, INJURY, THREAT OF INJURY

1) Where D is charged with a SEXUAL OFFENCE he will not be allowed to do so
- In connection with the SEXUAL OFFENCE
OR
- ANY OTHER OFFENCE with which he is CHARGED IN THE PROCEEDINGS

2) Where the witness is a PROTECTED WITNESS he will not be allowed to do so
- In connection with the offence in RELATION TO WHICH HE IS A PROTECTED WITNESS
OR
- ANY OTHER OFFENCE with which he is CHARGED IN THE PROCEEDINGS

28
Q

Who is a PROTECTED WITNESS?

- 2 Points

A

The C himself or person who WITNESSED the COMMISSION of the offence

AND
is a CHILD during XX
Was a CHILD during Evidence in chief
Was a CHILD when giving EIC by VIDEO RECORDING

NOTE:
CHILD means under 18 in case of SEXUAL OFFENCES
Under 14 in case of any other offenses

29
Q

When can the court use its DISCRETION to prevent the XX of ANY WITNESS by D in person?

( - 3 Points )

A
  • it is likely to DIMINISH quality of evidence
  • prohibiting D from XXing in person will IMPROVE the quality of evidence
  • it would not be contrary to the INTEREST OF JUSTICE to do prevent the D from XXing in person
30
Q

Where the court prevents the D from XXing in person what should be done in relation to LEGAL REPRESENTATION?

( - 3 Points )

A
  • court must INVITE the D to obtain legal representation to conduct the XX
  • if D REFUSES, court must APPOINT a qualified legal representative to XX for the D if it is in the interest of justice
  • A court appointed legal representative is not responsible to the D but being manifestly ineffective will raise human rights issues
31
Q

If the court does exercise its DISCRETION to prevent the D from XXing any witness in person, how should the JURY be DIRECTED?

( - 2 Points )

A

Judge must WARN the jury not to DRAW ANY INFERENCE from the fact that D was not allowed to XX
or because XX was conduced by a qualified legal representative instead of D

32
Q

What is the RULE regarding SEXUAL BEHAVIOUR?

- 3 Points

A 
EXCEPT with LEAVE OF COURT,
NO EVIDENCE may be adduced
AND
NO QUESTIONS may be asked in XX 
about the SEXUAL BEHAVIOUR of the C

NOTE:
Extends to SEXUAL BEHAVIOUR with the D
EXCEPT the events in relation to which the D is CHARGED
LEAVE is not needed regarding related matters
SEXUAL BEHAVIOUR does not include FALSE COMPLAINTS

33
Q

When is LEAVE OF COURT granted to adduce evidence/questions of SEXUAL BEHAVIOUR?

( - 6 Points )

A

Only granted if:
REFUSING to give leave might RENDER UNSAFE a CONCLUSION by the jury or court to a RELEVANT ISSUE
OR
the EVIDENCE or QUESTION falls within one of the FIVE GATEWAYS

FIVE GATEWAYS:
- s41(3)(a) -
The evidence/questions RELATE to AN ISSUE OTHER THAN CONSENT

- s41(3)(b) -
 The evidence/questions
 RELATE to RELEVANT ISSUE OF CONSENT 
AND
the sexual behaviour took place AT OR ABOUT the same time as the charge event which forms the basis of the charge

NOTE: EVENT 1 took place at or about the same time as the event CHARGED with

-s41(3)(c)(i)-
 The evidence/questions
 RELATE to RELEVANT ISSUE OF CONSENT 
AND 
the sexual behaviour is allegedly in some respect SO SIMILAR to the D's version of the sexual behaviour of the C that the similarity cannot reasonably be explained as coincidental

NOTE: EVENT 1 is STRIKINGLY SIMILAR to EVENT charged. Even though did not happen AT OR ABOUT THE SAME TIME

-s41(3)(c)(ii)-
 The evidence/questions
 RELATE to RELEVANT ISSUE OF CONSENT 
AND 
the sexual behaviour is allegedly in some respect SO SIMILAR to ANY OTHER SEXUAL BEHAVIOUR OF THE C WHICH TOOK PLACE AT OR ABOUT THE SAME TIME AS THE EVENT that the similarity cannot reasonably be explained as coincidental

NOTE: EVENT 1 is STRIKINGLY SIMILAR to EVENT 2 and EVENT 2 took place at or about the same time as the EVENT in issue which is EVENT 3

-s41(5)-
The EVIDENCE/QUESTIONS are necessary to enable the D to REBUT or EXPLAIN P evidence concerning the C’s SEXUAL BEHAVIOUR

Criminal Evidence (3 decks)

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