13: Examination of witness Flashcards
(107 cards)
1
Q
What is the general rule for examination in chief?
A
no leading questions. Evidence elicited by these questions is not inadmissible, but weight attached may be substantially reduced.
Leading MAY be okay if in interests of justice, discretion of judge.
2
Q
EXAMINATION IN CHIEF:
Leading allowed when:
A
- Allowed on formal and introductory matters
- Facts not in dispute;
- When treating a witness as hostile
3
Q
EXAMINATION IN CHIEF:
Application to refresh memory should be made by:
A
App to refresh norm made by advocate, but judge can when -) interests of justice.
4
Q
Who does s139 apply to?:
A
S139 apply to ANYONE, including D. Can refresh memory “at any stage” in giving oral. Judge decides if his recollection at time = significantly better than oral evidence. No require that memory refresh doc be original.
5
Q
MAKING OR VARIFYING DOCS –
Document =
A
anything in which info is recorded, NOT recording of sounds or moving images.
6
Q
For s139 who must have prepared the document?
A
Under s139, doc MUST have been prepared by witness (or another provided witness verified doc. Can refresh memory from deposition or statement to police.
7
Q
Refreshing Memory s139: A witness MAY refresh memory at any time, if:
A
- He gives evidence that the doc records his recollection at time he made it; and
- His recollection at time is significantly better than oral evidence
Trial judge MAY refuse an app even if statutory conditions met.
8
Q
Refreshing Memory s139:
Can a judge refuse an application?
A
Trial judge MAY refuse an app even if statutory conditions met. This ONLY applies to “present recollection revived” = where witness uses doc to refresh existing memory. Where witness has NO RECOLLECTION of an event (“past recollection revived”), docs admissible under s120. Applies to ANY witness + accused.
S139 applies ONLY to “present recollected revived”. Where W has no recollection of events = admissible under s120.
NO requirement doc = original. TEST: copy is accurate or substantially reproduces original.
9
Q
S139 applies ONLY to
A
“present recollected revived”. Where W has no recollection of events = admissible under s120.
NO requirement doc = original. TEST: copy is accurate or substantially reproduces original.
10
Q
REFRESHING MEMORY OUT OF COURT
Prior going into witness box =
A
conditions a witness may refresh memory while giving evidence doesn’t apply outside the box.
Witnesses = routinely provided with copies of statement before going into court. MAY refresh from statement or visually recorded interview (no requirement witness watch at same time as court, but if diff time = should be asked if + when he watched it.
11
Q
Who is entiled to copies (s139 refreshing memory out of court)?
A
Witnesses for pros = entitled to copies
Witnesses for def = entitled to copies
IMPORTANT for pros + judges to ensure witness informed they shouldn’t discuss case. Gen rule: discussion between witnesses shouldn’t take place.
12
Q
S120
A previous statement by witness = admissible if:
A
- MTFR - MY TEACHER FRIED RASPBERRIES
- Three conditions satisfied; and
- When giving evidence witness indicates he made the statement + it states the truth.
- Statement made by witness when matters were fresh in his memory but doesn’t remember them + cannot reasonably be expected to remember them well enough
- Third condition:
- Witness claims to be person against whom offence has been committed;
- Offence is one which proceedings relate = ONLY an offence on indictment.
- Statement consists of complaint by witness about conduct constating the offence;
- Complaint not made as result of threat or promise; and
- Before statement adduced, witness gives oral evidence
Fact complaint elicited, e.g. by leading question = irrelevant unless threat/promise involved.
13
Q
Previous complaints: refreshing memory s120
What is it?
A
A previous statement by witness = admissible
14
Q
Previous complaints: refreshing memory s120
Pros may want previous statement to be evidence of truth of its content. If criteria in s120 not met, complaint may
A
be admissible under s114.
15
Q
Previous complaints: refreshing memory s120 –
General rule:
A
against previous consistent (Self-serving) statement = witness may NOT be asked of previous oral/written statement consistent with testimony to show consistency =
16
Q
against previous consistent (Self-serving) statement = witness may NOT be asked of previous oral/written statement consistent with testimony to show consistency
EXCLUDES:
A
previous self-serving statement. Other witnesses cannot provide this evidence. Even if testimony = impeached in cross-examin – CANNOT give evidence of previous consistent statement. BUT court = residual discretion in interests of justice, to permit re-examination to show consistence.
17
Q
against previous consistent (Self-serving) statement = witness may NOT be asked of previous oral/written statement consistent with testimony to show consistency
EXCEPTION:
A
- Previous complaints
- E.g sexual complaints
- Previous identification + description
- Statements in rebuttal of allegations of recent fabrication.
18
Q
What are:
SELF-SERVING STATEMENTS (Exculpatory) =
A
evidence favourable to D that exonerates D of guilty. If statement is purely exculpatory/self-serving, it is not admitted as evidence of facts stated in it, allowed to show reaction when first taxed with incriminating facts.
19
Q
Principles of
exclupatory statement:
A
Allowed to show the reaction at the time when taxed with incriminating facts
20
Q
Principles of
mixed statement:
Admissible for:
A
Admissible of truth of the facts they contain
21
Q
Principles of
Inculpatory statement:
Admissible for:
A
22
Q
What is a:
Mixed statement?
A
statement with inculpatory + exculpatory parts = whole statement admissible, inc evidence of truth of facts contained. If D doesn’t give/call evidence, judge MUST – summing-up, set out defence in mixed statement which = admissible as evidence of contents.
Evidence of its contents
23
Q
What is a:
exculpatory statement?
Relevant as showing:
A
reaction of the accused on accusation (NOT for the truth)
If statement = wholly adverse to D = MAY be admitted as evidence of truth of facts contained.
24
Q
Statement in rebuttal of allegations of recent fabrications =
What is the exception to the rule against hearsay?
A
s120 is an exception to rule against hearsay + rule against previous consistent statements, a statement admitted may be evidence to rebut suggestion oral evidence has been fabrication = admissible truth of contents + credibility. S120
25
What is:
## Footnote
**s3 CPA**?
Party calling W NOT entitled to impeach credit by evidence bad chara.
26
**s3 CPA**
In assessing whether W = hostile, judge will consider whether:
1. Witness in position to assist;
2. He has indicated willingness to assist
3. Any previous accounts given by him + demeanour in witness box.
With leave, party calling W can prove he made statement inconsistent with present testimony, but the circumstance of statement must be mentioned to W, and he MUST be asked if he made the statement.
27
s3 CPA
## Footnote
Can a hostile witness be XXes on previous inconsistent statement?
MUst leave be given?
A party MAY contradict unfavourable/hostile W, i.e call other witnesses to prove hostile W failed to establish.
Hostile witness MAY be cross-examined on previous inconsistent statement. Leave MAY be given whether previous inconsistent statement oral/written. If W admits he made previous statement – proof he made it. If doesn’t admit – whether earlier statement can be used depends on facts.
If justification, app may be made to treat spouse = hostile who is competent but not compellable for pros. But desirable judge explains to spouse in absence of jury + before oath taken, if choice is made to give evidence, he MAY be treated like another witness
28
**_HOSTILE WITNESSES_**
Gen rule:
not entitled to impeach credit of own witness-) asking Q./evidence about:
1. bad character;
2. previous convictions
3. bias
4. previous inconsistent statements
29
For a hostile witness,
No application is needed where:
witness bad chara introduced not to impeach his credit, but it supports other discrete part of pros case.
30
Unfavourable witness
what is it?
witness who fails to come up to proof/gives evidence unfavourably, gen rule applies: only remedy: call other witnesses. Pros adduce evidence to contradict part of witness’s evidence they consider inaccurate/false + invite jury to reject witness’s evidence.
31
Definition of hostile witness?
witness “not desirous of telling the truth to court” = Gen rule modified:
1. Party may, with leave of judge, prove previous inconsistent statement of witness; and
2. Party calling witness may cross-examine him asking leading questions
32
When to apply to treat W as hostile?
**Time to apply:** When witness first shows unmistakable hostility signs. If pros has statement directly contracting own witness, he should at once show statement -) judge + ask leave cross examine. BUT: judge + party calling him should FIRST consider inviting him to refresh his memory. Discretion for judge.
33
Role Judge+ Jury
in **hostile witness case:**
Discretion of judge – treat W hostile = absolute, decision rarely successfully challenged on appeal. Q. if W is hostile is for judge WITHOUT THE JURY, following formal app. Evidence + demeanour of potentially hostile W should be tested in presence jury.
34
**_RE-EXAMINATION_**
After cross exam, W MAY
be re-examined by party who called him. Applies even with hostile W. Leading questions may not be asked! **PRINCIPLE:** except with leave, Q. should be confined to matters arising out of cross-examin. W May refresh memory in re-examin.
35
Statement in rebuttal of allegations of recent fabrications = s120 is an exception to
rule against hearsay + rule against previous consistent statements, a statement admitted may be evidence to rebut suggestion oral evidence has been fabrication = admissible truth of contents + credibility. S120 doesn’t govern admissibility
36
Previous consistent statement will NOT be admissible because
evidence impeached in cross. But if in cross its suggested W recently fabricated, evidence of previous consistent statement = admissible in re-examination. Principle = no app where W cross-examined on basis account = fabricated from outset, unless effect cross creates impression invented story later stage. S120 refers to “fabrication” without qualification “recent” = MUST be recent fabrication.
37
s120 requires:
S120 refers to “fabrication” without qualification “recent” = MUST be recent fabrication.
38
**_YOUNG + VULNERABLE WITNESSES_** = Judicial College Bench Checklist lists factors to be considered @ first Mags/prelim/plea+trial preparation Hearing in CC:
1. Info about child’s development, health + concentration span;
2. Whether child unlikely to recognise
3. Time estimates;
4. Need to schedule “ground rules” hearing about Q, - should be done where young/vulnerable W
39
**YOUNG + VULNERABLE WITNESSES =**
## Footnote
Leading questions =
W may NOT be asked leading Q. Evidence elicited by leading Qs is NOT inadmissible but weight attached may be reduced
40
**YOUNG + VULNERABLE WITNESSES =**
Leading questions =
EXCEPTIONS:
1. On formal + introductory matters, e.g. name + occupation
2. Undisputed matters;
3. Hostile witness
41
YOUNG + VULNERABLE WITNESSES =
## Footnote
Ground rules hearing **MUST** cover:
1. Length Q.
2. Frequency of breaks;
3. Nature of questions to be asked.
42
YOUNG + VULNERABLE WITNESSES =
Ground rules hearing **MAY** cover:
1. Adopt Q.s to child’s development
2. Ask short, simple questions
3. Follow logical sequence
4. Speak slowly + allow sufficient time
5. Use body diagram
Should avoid negative.
43
Present recollection revived =
WHAT TO USE
memory refreshing
44
Past recollection recorded
WHAT TO USE
W has no current recollection of event + prepared to testify.
45
**_S139 CJA SOUND RECORDING–_** W may refresh his memory from doc made/verified by him if:
1. States in oral evidence doc records his recollection of matter at earlier time and
2. Recollection is likely to be significantly better at that time than now
46
**S139 CJA SOUND RECORDING–**
## Footnote
Where person giving oral evidence of which sound recording made and:
1. states in evidence account represented recollection at time,
2. Recollection likely to be significantly better at time of previous account than now; and
3. A transcript made of recording
He may refresh memory from transcript.
47
S120 – previous statement is admissible as:
**evidence on any matter stated**, provided W testifies he made statement + it’s the truth + he doesn’t remember matters + cannot reasonably be expected to.
48
S120 CJA 2003 applies to:
1. W called to give evidence in crim procedures
2. W gives evidence he made statement + true
3. Serious statement was a statement of identification.
49
Who is s120 for?
S120 is ONLY for VICTIMS, NOT defendants.
50
When does s120 only apply?
S120 of previous statements being admissible ONLY applies if statement made by W, not application if statement verified by him.
51
Who decides if a W doesnt remember anything?
Judge decides if W doesn’t remember event + cannot reasonably be expected to.
52
Where previous statement = admissible under s120, judge should direct jury during summing-up:
1. They made it into consideration
2. Should consider reliability of W’s recollection in previous statement;
3. For them to decide what weight to give evidence.
Doc = info recorded NOT including recording sound + moving images.
53
**_Previous identification s120_**
Previous identification = permissible as evidence of matter stated if:
1. While giving evidence W indicates to best knowledge + belief he made statement + states truth
2. Statement identifies or describes a person, object or place.
54
**_Previous complaint s120:_** A previous statement is admissible if:
1. While giving evidence W indicates to best knowledge + belief he made statement + states truth
2. –
1. W claims to be person against whom offence committed;
2. Offence one which proceedings relate
3. Statement consists of complaint by W constituting part of offence
4. Complaint not made as result of threat or promise; and
5. Before statement adduced W gives oral evidence in connection.
55
Previous complaint s120: A previous statement is admissible
## Footnote
BUT- failure to state **WHAT** renders the complaint inadmissible?
Failure to state – to best of their knowledge + belief, he made complaint + to the best of his belief it was true = renders complaint inadmissible.
Previous complaint = evidence of truth of matters statement, +consistency.
56
**_Statements in rebuttal of recent fabrication s120_**
If previous statement admitted to rebut suggestion oral evidence =
recently fabricated, statement admissible of matter stated. S120 doesn’t govern *admissibility*, but regulates evidence once admitted may be put + evidential value. Once admitted, can be put forward as evidence of : W’ consistency + matter stated.
57
Routes for applying to have the witness declared hostile
1. Is the witness hostile or merely unfavourable
1. Would applciation to refresh the memory serve any useful purpose
2. "undesirous of telling the truth"
3. apply to have the witness declared hostile in front of the jury
58
A hostile witness can:
contradict W, ask leading questions.
Ask W about
1. whether he made a statement
2. the circumstances in which it was made
59
What happens if W adopts a statement?
the statement is evidence of truth of its contents
60
What happens where W denies he made a previous inconsistent statement?
Permitted to "Prove" that he did
If so -
the statement is evidence of truth of its contents
61
Statement should not accompany jury to jury room unless court orders or parties agree.
**_Which evidence should the jury use in support of the prosecution case?_**
1. The statement to the police, if sure that it was true and accurate
2. the statement in court, if sure W was telling the truth; or
3. Neither, if they take the view they cannot rely on any of W's evidence, given the inconsistencies
62
**_PUTTING AN INCONSISTENT STATEMENT TO A WITNESS:_**
ROUTE
**Ask W if she made an inconsistent statement:**
-*ACCEPT*
Need to "prove" the statement
*-**DENIES***
**No further proof of the statement required**
If statement is written, it is not a requirement that W be shown statement
**- *Statement not shown to W***
Ensure statement is at court - the judge may require it be produced for inspection
***- Statement shown to W***
THEN
* Ask W about "the circumstances in which it was made sufficient to designate the particular occassion"
* E.g. when it was written
* Ask W about the inconsistency
* Draw W's attention to those parts of the statement that are to be used for the purpose of contradiction
* If the contradiction is a complete failure to mention, put that it is not in the statement
* Once the statement has been admitted it is evidence of the truth its contents.
63
**_CROSS EXAMINATION_**
_Previous inconsistent statement_ =
W admits making previous oral/written inconsistent statement, statement = admissible = **evidence of matter stated**.
Fact W made previous statement gives evidence he cannot remember doesn’t make it a previous inconsistent statement.
64
**CROSS EXAMINATION**
Previous inconsistent statement =
Where doc contains previous statement = inconsistent, **what happens?:**
counsel norm hands doc to W, not making it exhibit. Counsel askes if W stands by evidence in court, if yes = counsel chooses whether or not to prove previous statement, may ask W to read relevant part to court. No obligation from cross-examining party prove inconsistent statement.
Previous inconsistent statement = admissible evidence of truth of statement + evidence credibility. Then court/jury MAY accept as true either present/past testimony or both.
65
**_Nature of Cross-examination_**
Cross examination = questioning of witness by:
1. Opponent of party calling him;
2. Any other party to proceedings
Accused has right to cross-examine a co-accused who chose to give evidence. Norm: cross follows after examination in chief, but W can be called by pros + asked no questions in chief.
66
What is the sequence of cross examination?
**Mags** = every party may ask questions in cross
**CC** – Both pros + def W may be crossed by any co-accused in order their names appear in indictment or directed by court. D W may be crossed by pros after cross-examination by co-accused.
67
**_Cross-examination by accused_**
Gen rule:
D entitled to cross-examine person any witness called by pros
68
**_Cross-examination by accused_**
Gen rule: D entitled to cross-examine person any witness called by pros. EXCEPTION:
1. Judge not obliged to give **unrepresented D** opp to ask whatever questions @ length
2. No person charged with sexual offence may cross-examine compliant either:
1. In connection with offence; or
2. With another offence
3. No person charged with specified offence may cross “Protected witness” either in connection with offence or another;
4. Court = general power to give direction prohibiting D from cross-examining W if:
1. Quality of evidence likely be diminished + would be improved by direction; and
2. Not contrary interests of justice.
69
**_Cross-examination by accused_**
Under court’s gen power, he MUST take account:
1. View of W
2. Nature of questions asked
3. Behaviour of D to W + generally.
Witness for gen power, doesn’t include co-accused.
70
Where D prevented from cross-examining W, court MUST
invite him to appoint legal rep.
71
**_Cross-examination by accused_**
Where D prevented from cross-examining W, court MUST invite him -) appoint legal rep. Failure:
: + court decides in interests of justice, court MUST choose + appoint rep who shall NOT be responsible to D.
72
**_Cross-examination by accused_**
## Footnote
A court-appointed advocate’s duty:
1. Cross-examine particular witness; and
2. Ensure position properly to do so; and
3. Duty may include apps to admit bad chara evidence +disclosure
Role ends = conclusion of cross-examination, but can stay on pro bono. Court MUST NOT tell him to leave. Where D prevented from cross-examining W, judge MUST give jury **warning.**
73
OBJECT OF CROSS-EXAMINING:
1. Elicit from W evidence supporting facts in issue
2. Weaken evidence given by witness in chief;
3. Sometimes, impeach W’s credibility
74
**Protected witness =** complainant or witness of offence of:
1. Sexual offences
2. Slavery/human trafficking
3. Kidnapping, false imprisonment/child abduction
4. Child cruelty
5. Adult on/injury/ threat of injury to any person and:
AND
1. If offence sexual/slavery/human trafficking, W under 18 or falls to be crossed having given in chief when that age; or
2. Case of any other specified offence, W under 14
75
Role of judge during cross examination = MAY ask
W Q. + where D not represented, ask W any question necessary. Where competent advocate = judge shouldn’t intervene, unless to clarify matters. If wants to ask Q. should wait till end examination/cross. Judge shouldn’t be criticised -) occasional transgressions.
Can be appeal if conduct amounts to material irregularity.
76
**_CROSS EXAMINATION BY ACCUSED_**
Putting one’s case + failure =
W who in cross examination proposes contradicting story should be questioned. Failure + def doesn’t put his version = cannot rely on it in closing speech. Evidence contradicting W not put in cross-examination MAY be admitted if W then recalled + cross-examination reopened to put new evidence to him. If W young/vulnerable, court MAY impose restrictions “putting his case” where risk W fail to understand
77
**_CROSS-EXAMINATION BY ACCUSED_**
**_R_**ules of cross-examination =
Questions should be in nature of comment on facts, it should be putting questions of fact. In Cross of children/vulnerable witnesses, judge = discretion to prevent questions which are unnecessary, improper or oppressive.
Questions in cross-examination are not restricted to matters raised in chief, but any fact in issue/credibility. A witness under cross MAY be asked leading questions. Exclusionary rules of evidence apply to cross.
78
**_CROSS EXAMINATION BY ACCUSED:_**
## Footnote
Cross-examination as to Credit
Purpose cross-examination as to credit = show W ought not be believed. May be crosses about means of knowledge of facts he has testified, opps for observation, powers of perception, quality of memory, mistake, omissions + inconsistencies in previous statements NOT relative to subject-matter.
In sexual cases – D may seek undermine credibility by cross on her delay in making complaint = judge must direct jury that late complaint not necessarily false one.
79
**_CROSS EXAMINATION BY ACCUSED:_**
## Footnote
Bad character =
Can sexual behabiour be asked?
except with leave -) court, no question may be asked in cross about sexual behaviour of complaint.
80
**_POWER OF JUDGE TO IMPOSE TIME-LIMIT_**
As part case management powers, court MAY limit duration of any stage of hearing Inc
. cross examination of W. Time limits shouldn’t be routine, but are entitled + obliged where counsel: rambling + repetitious questioning. CA will not interfere unless **unfair.**
81
When does
RE-EXAMINATION =
take place?
After cross, W may be re-examined. Applies to hostile Witnesses. Leading questions cannot be asked. Except with leave, questions must be confined to matters arising from cross-examination.
82
**_RULE OF FINALITY OS ANSWERS ON COLLATERAL MATTERS_**
Gen rule:
W’s answer concerning collateral issue is FINAL, cross party cannot call further evidence to prove contrary. But tribunal of fact don’t need to accept answer = true.
83
A collateral issue =
one that goes to credibility bit not otherwise directly relevant to facts in issue. Judge decides if issue is collateral.
84
**A collateral issue =** one that goes to credibility bit not otherwise directly relevant to facts in issue. Judge decides if issue is collateral. EXCEPTION:
1. Previous conviction;
2. Bias + partiality
3. Disability affecting reliability.
85
What is
BIAS + PARTIALITY ?
Where W denies bias or partiality in cross, evidence may be called in rebuttal to show W prejudiced.
86
**_SPECIAL MEASURES + ANONYMITY ORDERS_**
**Special measures direction =**
order that may be made by court on own motion or app by either rparty, intended to protect vulnerable/intimidated Ws + facilitate giving evidence.
87
**_SPECIAL MEASURES + ANONYMITY ORDERS_**
Special measures for Ws =
What must advocates do?:
Advocates MUST adopt -) witnesses, not other way round. All witnesses regardless age (or disability) = presumed competent.
88
**Litmus test =** requires court to:
consider which measures would “maximus quality of evidence”. W
89
**Litmus test =**
## Footnote
Witnesses UNDER 18 = test **presumed** satisfied by:
1. Playing their recorded interview with police as evidence in chief + cross-examination by video link.
Other cases, measures must be tailored.
Other protective procedures:
1. orders restrictions on reporting + public accused
2. complaint anonymity in sex offence cases
3. prohibition on cross-examination by D of:
1. child complaints of or witnesses to sexual offences etc; and
2. adult complaints in sexual offences cases
4. use of pre-trial dispositions.
90
**ELIGIBILITY** of special measures direction:
1. Under age 18 at time hearing
2. Court considers quality of evidence given by W is likely to be diminished because:
1. Suffers from mental disorder;
2. Significant impairment of intelligence + social functioning; or
3. Has physical disability or suffering from physical disorder
3. Court considers quality of evidence by W likely to be diminished due to fear or distress. The court must take into account:
1. Nature + alleged circumstances of offence
2. Age of W
3. Social + cultural background + ethnic origins of W;
4. W’s domestic + employment circumstances;
5. Religious beliefs + political opinions of W;
6. Behaviour of D, family or associates;
7. Any views expressed by W
4. W is adult complainant in sexual offence
5. A witness to an offence involving use or possession of knife or firearms.
Accused NOT eligible for special measures direction. BUT vulnerable accused MAY be eligible to give evidence through live link or registered intermediary.
91
**Range special measures available** for *vulnerable + intimidated witnesses:*
1. **Screening** witness
2. evidence by **live link**
3. evidence given in **private** (available = sex offences or where fear W may be intimidated)
4. **removal of wigs + gowns** while W gives evidence
5. video recording of evidence-in-chief
6. video recording of cross-examination + re-examination where chief has already been video-recorded
7. examination through **intermediary** for young/incapacitated witnesses
8. provision of aids to communication for young/incapacitated witnesses
9. a witness anonymity order, may be preceded by investigation anonymity order.
92
**Special measures:**
For Ws not automatically eligible, court MUST
determine if quality evidence diminished due to witness’s condition. Adult complainants of sexual offences + witnesses in “relevant offence” = unqualified right to opt out special measures. After declaration of eligibility made, court MUST consider which special measures would max quality of W’s evidence.
93
Which special measure is not available for witnesses eligible by reason of **fear or intimidation**
* Testifying through an intermediary and aids to communication are **_not available for witnesses eligible only by reason of fear or intimidation._**
94
SHORTHAND Categories of eligibility are:
1. all witnesses **under age of 18** at time of hearing or video recording;
2. **vulnerable witnesses** who are affected by a mental or physical impairment;
3. witnesses in **fear or distress** about testifying;
4. adult complainants of **sexual offences**
5. any witness in a case involving a **“relevant offence”** currently defined to include homicide offences and other offences involving a firearm or knife.
95
Adult complaints of sexual offences =
What happens to their special measures?:
Automatically eligible for special measures: **presumed** to be in fear/distress. NOT subject to additional eligibility criteria, can apply for in chief to be given by video.
96
**CHILD WITNESSES**
All Ws under 18 (under 18 when video recorded interview took place) are “child witnesses” =
WHAT ARE THE SPECIAL MEASURES?
= automatically eligible for special measures –
97
**CHILD WITNESSES**
All Ws under 18 (under 18 when video recorded interview took place) are “child witnesses” = automatically eligible for special measures – MUST make special measures direction that:
1. Any video-recorded interview to stand as evidence-in chief
2. Evidence not given by video recording to be given by live link.
BUT need not make direction where:
1. Not in interests of justice; or
2. Direction would not maximise quality of witness’s evidence
(This is the “primacy rule”). Child can opt out of this if it would not diminish quality of C’s evidence.
98
**CHILD WITNESSES**
All Ws under 18 (under 18 when video recorded interview took place) are “child witnesses” = automatically eligible for special measures – MUST make special measures direction that:
1. Any video-recorded interview to stand as evidence-in chief
2. Evidence not given by video recording to be given by live link.
but need NOT make direction where:
1. Not in interests of justice; or
2. Direction would not maximise quality of witness’s evidence
(This is the “primacy rule”). Child can opt out of this if it would not diminish quality of C’s evidence.
99
**Eligibility of D for live link**
**Who must apply?**
**Eligibility of D for live link**
CC or Mags on app **by defence,** can direct accused testify via “live link”.
100
**Eligibility of D for live link**
CC or Mags on app **by defence,** can direct accused testify via “live link”. MUST be satisfied that:
1. Interests of justice; and
2. Live link would enable accused to participate more effectively as witness.
Because:
1. D under 18, his ability to participate as W is **compromised** by his “level of intellectual ability or social functioning”; or
2. D aged 18 or over, he is **unable** to participate because he has a mental disorder, or a “significant impairment of intelligence + social function”.
Lower threshold for child Ds.
Presumption = adult D’s should give evidence in court.
101
Eligibility of D for Intermediary =
Who directs this?
CC + Mags may direct D be assisted by intermediary, but they should be reserved for Ds + Ws “most in need”. Assessment could conclude: no ned for intermediary assistance, instead recommending ground rules.
102
**Eligibility of D for Intermediary**
## Footnote
Where intermediary not available – If D needs, judge MAY:
MAY decide it is nonetheless able to have fair trial by adapted procedures, e.g. taking frequent breaks.
103
Eligibility of D for Intermediary
## Footnote
What are: Intermediaries
are independent of parties and owe their duty to = court. Intermediary shouldn’t be sworn as witness and not asked to provide expert testimony or an opinion or D’s fitness to pelad. Intermediaries = assist the judge + counsel – in what questions likely to cause misunderstanding. Intermediary can explain questions + answers.
104
**_Special measures: general test_**
**_ROUTE_**
**Initial gateway**
* Fear or distress
OR
* Phsyical or mental incapacity
---) nature & qualiry of evidence likely to be diminished?
1. Would any special measures or (or combination) be likely to improve quality of evidence
2. which special measures (or combination) would be likely to maximise so far as practicable the quality of W's evidence
105
**Special measures: specific categories of witness**
What is the primary rule +
When can it be disapplied
1. Child witness (under 18)
**Primary rule**
* Video interview as XIC
* Any evidence not video recorded as live link
**Can be displaced**
* Where unavailable at court
* Where not in the interests of justice to admit recording of XIC
* If compliance with the primary rule would not be likely to maximise the quality of evidence
* if W informs the court of the wish that the rule should not apply at all or in part & court is satisfied that not complying with the rule would diminish the quality of the witness's evidence
* Screens should then be used if they dont diminish quality of evidence
106
**Special measures: specific categories of witness**
* Complainant in sexual cases or trafficking case under s4 Asylum and Immigration Act
* Offences involving firearms, knives, bladed articles
* usual range of s17SMs
------) **presumed** to be in fear or distress such that quality of evidence is likely to be diminished (W can tell court otheriwse
**If app made:**
**MUST -** Give direction to Play video recorded XIC unless: it wont maximise the quality of evidence
107
**139** **Use of documents to refresh memory**
## Footnote
**STATUTE:**
1. A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—
1. he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
2. his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
2. Where—
1. a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,
2. his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
3. a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.
