12. Witness Evidence Flashcards
What are the two types of witness evidence?
- Direct
- Circumstantial
What is the general rule for what a witness must have done to be able to give evidence at trial?
Signed a previous witness statement setting out their evidence
What happens if a witness statement is not served, and what is a way around this?
Party cannot call that witness, unless they receive court permission
If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served?
7 days
What can the other party do if a party decides not to call a witness who has had a witness statement served, and how will the court treat what they do?
Other party can refer to the statement, but the court will treat this as hearsay
Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?
- Statement must have been made out of court
- Statement must be used to prove the truth of what is being stated
When will a witness statement not be hearsay?
When the witness thereafter comes to court, their statement plus their answers under cross-examination are all treated as if they were made in court and cease to be hearsay
What six factors will the court consider when determining the weight to apply to a witness statement entered as evidence where the witness does not come to court?
- Reasonable/practicable to force witness to attend?
- Original statement made contemporaneous with the event?
- Single or multiple hearsay?
- Motive to misrepresent facts?
- Was original statement edited?
- Does the situation suggest attempt to prevent proper evaluation of evidence?
If a party wishes to rely on hearsay evidence, what must they do, and what is the effect of the witness attending the trial on how this obligation must be satisfied?
Must serve notice on the other side.
If the witness is attending court, the witness statement itself constitutes notice.
In response to notice that the other side wishes to rely on hearsay evidence, within what time limit must the recipient make an application to the court to call the witness, if they wish to do so?
14 days
One of what three things must occur for a party to have their own witness declared as hostile by the court?
- Witness is unfavourable to the side who called them
- Lack of cooperation to tell the truth on behalf of party who called them, or
- Evidence is entirely inconsistent with their witness statement
What is the effect of a witness being declared hostile?
They can be cross-examined by the party who called them
What is similar fact evidence and what must it be to be admissible?
Evidence of previous incidents or conduct as evidence of similar conduct in the case in question. Must be relevant.
What is a Notice to Admit Facts, and within what time limit before trial must it be served?
A request on the other side to admit certain facts that are capable of agreement and admission. Must be served 21 days before trial.
What happens when a Notice to Admit Facts is served, the facts were not admitted, but were then proved at trial?
The court may order the party who refused to admit to pay the costs associated with proving the facts at trial, irrespective of the outcome of the case
