5. The Course of Evidence

Question 1

What is Judge’s role in trial by jury?

DQ
EEPOL
ROL

Answer 1

• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 2

Oath and Affirmations

Answer 2

Witnesses over 12 may take an oath and affirmation

Under 12
* be informed by the judge of the importance of telling the truth and not
telling lies, and
* after being given that information, make a promise to tell the truth, before giving evidence.

Question 3

Evidence in chief
Purpose?

Answer 3

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.

Question 4

What is a leading questions (S4), and what is the general rule re LQ during evidence?

Answer 4

A leading question is one that directly or indirectly suggests a particular answer to the question

The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89).

Question 5

Why are LQ generally prohibited?

Because TIM is a retard

What circumstances would LQ be allowed

Answer 5

Prohibited because-
- tendency for people to agree by saying yes despite not understanding
- easy to illicit answers thereby reducing the spontaneity and genuineness of the testimony.
- manipulation of evidence through collusion.

Circumstances where it may be allowed:
questions relate to undisputed matter
or All parties consent,
or Judges discretion allows it.

Such as:
* Identification
* Assisting memory
* Eliciting info from incoherent witnesses
* Hostile witnesses

Question 6

Refreshing Memory

1. In Court
2. Out of court.

Answer 6

If a witness wishes to consult a document while giving evidence, the following conditions must be satisfied:
- leave of judge
- document shown to all parties
- document was made at a time when his or her memory was fresh

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, BOE,

Question 7

Section 35 Previous consistent statements rule

RIM

Answer 7

A previous statement consistent with the evidence is not admissible unless:
- responds to a challenge of witnesses veracity or accuracy, based previous inconsistent statement, or claim of invention.
- forms an integral part of the events before the court
- consists of the mere fact that a complaint has been made

Question 8

Hostile witnesses

Types of questions to a Hostile Witness
(4 Points)
L PAP I CV

Answer 8

if the witness displays active hostility, leave may be sought from the judge to declare that witness a “hostile witness”.

Judge may allow questions in form of cross examination that includes
- Leading Questions
- Questions to probe the accuracy of memory and perception
- Questions as to prior inconsistent statements
- Other challenges to veracity, including evidence from other witnesses

Question 9

Hostile witness defined (S4)
3 points

V I R

Answer 9

A witness that exhibits
- lack of veracity unfavourable to the party who called them on a matter they’re supposed to have knowledge.

• gives evidence that is inconsistent with a statement made intentionally.
• refuses to answer questions or deliberately withholds evidence.

Question 10

What are the 2 purposes of cross- examination

Cross- examination as to prior inconsistent statements

Answer 10

There are two purposes of cross-examination:
* to elicit information supporting the case of the party conducting the cross- examination
* to challenge the accuracy of the testimony given in evidence-in-chief

Witnesses may be cross-examined as to prior inconsistent statements. Such statements may include:
* written witness statements
* oral statements (for example, recorded on police job sheets)

Question 11

The duty to cross-examine will arise under the Act when? S92

4 Points S RI C E

Answer 11

• CE deals with “significant matters” , and
• matters are “relevant” and “in issue” , and
• matters “contradict the evidence of the witness”, and
• The witness may “reasonably be expected to give admissible evidence on those matters”.

Question 12

Rebuttal Evidence called by either party after the completion of their own case can only be admitted with the leave of the court,

Such leave may be given to the prosecution if the further evidence?

FUNI

Answer 12

if the further evidence:
* relates to a purely formal matter
* relates to relevant unforeseen conduct from the defence
* was not available or admissible before the prosecution’s case was closed,
* is required to be admitted in the interests of justice.

Question 13

Judicial warnings

Answer 13

• judicial warning that evidence may be unreliable – s122
• judicial directions about certain ways of giving evidence – s123
• judicial warnings about lies – s124
• judicial directions about children’s evidence – s125
• judicial warnings about identification evidence – s126
• delayed complaints or failure to complain in sexual cases – s127.

Question 14

• judicial warning that evidence may be unreliable – s122

Answer 14

If judge thinks evidence is unreliable, may warn jury to be cautious.

evidence that may be unreliable.
- Hearsay, defendant statements, motive to give false evidence, anything longer then 10 years ago.

Question 15

• judicial warnings about lies – s124

Answer 15

When a warning must be given regarding lies, it should include direction that:
* the jury needs to be satisfied that the defendant did lie.
* people lie for various reasons,
* the jury should not necessarily conclude that just because the defendant lied he or she is guilty.