EIC and XXN

Question 1

How can a W revive their memory at court?

Answer 1

• Leave of the court is required for a witness to use a document to revive his or her memory in the course of giving evidence (s32)

With leave, W may read from the document if their memory is not revived (s 32(3)).

Question 2

Legal privilege and refreshing memory

Answer 2

• Any client legal privilege that may exist over the document is waived once it is used to refresh memory (s 122(6)).

Question 3

What does the court consider when deciding whether to grant leave to refresh memory?

Answer 3

o Whether the witness will be able to recall the fact or opinion adequately without using the document; and
o Whether so much of the document as the witness proposes to use is, or is a copy of a document that:
 Was written or made by the witness when the events recorded in it were fresh in his or her memory; or
 Was, at such a time, found by the witness to be accurate.

PLUS S192 considerations

Question 4

Can police officers read from their statement?

Answer 4

Yes - police officers can read from their statement (s33).

Question 5

Reviving memory out of court?

Answer 5

• Party may request the court to give directions to ensure specified documents and things used by a witness to revive memory otherwise that while giving evidence are produced to the party for the purposes of the proceeding (s34).

Question 6

What is a leading question - s37

Answer 6

• Directly or indirectly suggests a particular answer to the question; or
• Assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

Question 7

When can a leading question be put to a W?

Answer 7

Leading question may only be put to a witness in XIC or RXN only if (s37(1))
* The court gives leave; or
* The question relates to a matter introductory to the witness’ evidence; or
* No objection is made to the question and each party is represented; or
* The question relates to a matter that is not in dispute; or
* The question is asked of a witness who has specialised knowledge based on his or her training, study or experience and the question is asked for the purpose of obtaining the witness’ opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

Question 8

What do you need to consider if the W is giving unfavourable evidence?

Answer 8

In exam questions, if the witnesses is stumbling – first examine the issue of refreshing memory before unfavourable witness
- IS IT STUMBLING BECAUSE OF THE STRESS OF GIVING EVIDENCE ABOUT EVENTS THAT OCCURRED TWO YEARS AGO?
- CONSIDER WHETHER YOU NEED TO REFRESH THEIR MEMORY BEFORE MOVING ON TO POINT 2 – TO APPLY FOR LEAVE TO DECLARE YOUR WITNESS UNFAVOURABLE UNDER S38

Question 9

When a W is unfavourable?

Answer 9

• A court may grant leave for a party to question its own witness as though the party were cross-examining the witness, about the following (s38):
  a) Evidence given by the witness that is unfavourable to the party; or
  b) A matter which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
  c) Whether the witness has, at any time, made a prior inconsistent statement.

Question 10

What does the court consider when determining whether to grant leave to declare a W unfavourable?

Answer 10

• Whether the party gave notice at the earliest opportunity of the party’s intention to seek leave; and
• The matters upon which, and extent to which, the witness has been, or is likely to be, questioned by another party.

PLUS S192 considerations

Question 11

What can you question an unfavourable W about?

Answer 11

• If leave is granted, the questioning must be ‘about’ the subject/s described in s38(1) which provided the basis for the granting of leave (s38(3)).

Question 12

What happens if prosecution attempts to impeach P’s witness in closing without declaring the witness unfavourable first?

Answer 12

• IF P SEEKS TO IMPEACH THE CREDIBILITY OF THEIR OWN WITNESS IN THEIR CLOSING ADDRESS, FAILURE TO UTILISE S 38 MAY BREACH THE RULE IN BROWNE V DUNN.

Question 13

What is the limit on re-examination?

Answer 13

• Witness can only be questioned about matters arising out of XXN (s39)

Question 14

Prior consistent statements - are they inadmissible?

Answer 14

Prior consistent statements are generally not admissible in chief if their only purpose is to bolster W’s credibility (s 102).

Question 15

Prior consistent statements - are they admissible?

Answer 15

They may be admissible with leave however, if tendered for a hearsay purpose and ss64 or 66 apply. Such statements may be led in RXN to rebut a suggestion of afterthought (s 108(3)(b).

Question 16

What is the rule in Jones and Dunkel? and in which type of proceedings is it used?

Answer 16

if it suggested that a party has failed to call a witness/ tender document/ evidence and it is unexplained, at common law this could lead to an inference that uncalled evidence would not have assisted the party.

It is applicable in civil proceedings.

Question 17

What happens when P fails to call a W?

Answer 17

Failure to call witness in criminal cases –s43A JDA applies as opposed to Jones v Dunkel – only applies to prosecution and only when there is an unexplained failure to call a witness.
- This direction informs the jury that it may conclude that the witness would not have assisted the prosecution’s case (Jury Directions Act 2015, s 43).\

Question 18

When would a JDA s43 direction be given (P’s failure to call a W)

Answer 18

• A direction would not be given if there is a reasonable explanation to call a witness. Reasonable explanations may include
  o Efforts made by the prosecution to find a witness or when P had not previously taken a statement from W and does not know what evidence they would give

Question 19

Are improper questions in XXN allowed?

Answer 19

• Per s41, court may disallow ‘improper questioning’ of a witness in cross examination.

Question 20

What is an improper question?

Answer 20

• Per s41(3), the section defines improper question or improper questioning as a question or sequence of questions put to a witness that:
  o Is misleading or confusing; or
  o Is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
  o Is put to a witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
  o Has no basis other than a stereotype.

Question 21

Can a vulnerable W be asked improper questions?

Answer 21

• Court must disallow improper questioning of a vulnerable witness.

Question 22

Who is a vulnerable W - s41(4)

Answer 22

o Under 18;
o Has cognitive impairment or an intellectual disability; or
o Is a witness whom the court considers to be vulnerable having regard to:
 Any relevant condition or characteristic of the witness (age/education/ethnic and cultural background/gender/language background and skills/level of maturity and understanding and personality)
 Any mental or physical or physical disability of which the court is, or is made aware;
 Context in which question is put,

Question 23

Is an objection necessary for improper questions?

Answer 23

Objection (s41(6))
* Party may object to an improper question.
* However, the duty on the court to disallow an improper question arises regardless of whether there has been an objection or not (s41(7))

Question 24

Leading questions - in EIC or XXN

Answer 24

• Party is allowed to put a leading question to a witness during XXN unless the court disallows it (s42(1)).

Question 25

When can evidence of a prior inconsistent statement be adduced, otherwise than from the witness who made the statement?

Answer 25

• Under s43, if a witness (in cross-examination) does not admit he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, during the cross-examination, the cross-examiner:
  o informs the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and
  o draws the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence (s43(2)).

Question 26

Producing documents of prior inconsistent statement (s45)

Answer 26

• S45 applies to a party who is cross-examining a witness about a prior inconsistent statement alleged to have been made by the witness that is recorded in a document (s45(1))

Question 27

PIS in EIC

Answer 27

1. Refreshing memory
2. Unfavourable W
   3, Credibility - - Ss103 and 104
   - Note: leave for pros to cross examine A re their credibility can only be granted if A has led evidence that a W is untruthful / tendency to be untruthful.

Question 28

PIS in XXN

Answer 28

1. refreshing memory
2. S43 - Permission to ask W re prior inconsistent statement
3. Browne v Dunn
4. Credibility
   - If W maintains the inconsistency – then move onto credibility
   - Ss106
   - Note: pros does not need leave to cross examine an Accused a prior inconsistent statement – s104(3)(c)
   - No leave is required to cross examine a W re prior inconsistent statement as per s106(2)(c)

Question 29

What is the rule in Browne v Dunn?

Answer 29

Where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination. It is a rule of fairness – that a witness must not be discredited without having had a chance to comment on or counter the discrediting information.

Question 30

S46 and Browne v Dunn

Answer 30

• S46 allows, with leave, a witness to be recalled to give evidence about a particular matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined.
• Where a party proposes to lead evidence that contradicts or discredits an earlier witness, then an opportunity to reply must be given to the particular witness.

Question 31

When may a court grant leave under s46 to recall a witness?

Answer 31

• Where evidence about a matter raised by evidence adduced by another party, being a matter on which a witness was not cross-examined has been admitted, AND,
  o The evidence contradicts evidence about the matter given by the witness in examination-in-chief; OR
  o The witness could have given evidence about the matter in XiC.