Evidence 10

Question 1

In a Civil or Criminal proceeding -

Answer 1

Any person is eligible to give evidence , and

A person who is eligible to give evidence is compellable to give that evidence.

A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all questions put to them.

Question 2

Exception to affirm or promise, judge must:

Answer 2

Inform the witness of the importance of telling the truth and not telling lies before the witness gives evidence

The evidence of the witness must be treated as it had been given on oath.

Question 3

People who get permission:

Answer 3

Adults with intellectual disability.

Child witness unable to promise to tel the truth.

Question 4

Consult documents whilst giving evidence, must be satisfied:

Answer 4

The leave of the court must be obtained.

The document must be shown to every party in the proceeding.

s90(5) requires the document to have been made or adopted by a witness at a time his or her memory was fresh.

Question 5

Sec 7 Fundamental principle that relevant evidence admissible

Answer 5

(1) All relevant evidence is admissible in a proceeding except evidence that is-
(a) Inadmissible under this Act or any other Act, or
(b) Excluded under this Act or any other Act.

Question 6

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded.

Answer 6

Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding the contents, the circumstances in which it was made, and so on.

The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.

There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people.

The reason for the rule’s existence is therefore in danger attributing undeserved weight to evidence that cannot be adequately or properly tested.

Question 7

Give two exceptions to the general rule concerning leading questions.

Answer 7

Introductory or disputed facts

Identification

Assisting memory

Contradicting

Hostile witnesses

Question 8

Define

(A) Direct evidence

(B) Admissible evidence

Answer 8

(A)
Direct evidence is any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.

(B)
Admissible evidence is evidence that is admissible if it is legally able to be received by a court.

Question 9

Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?

Answer 9

The topic of cross-examination must deal with “significant matters” in the proceeding.

The matters must be “Relevant” and “in issue” in the proceeding.

The matters must “contradict the evidence of the witness”, and

The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.

Question 10

What are the two exceptions to the general prohibition on previous consistent statements (Sec 35 EA 06).

A previous statement of a witness that is consistent with the witness’s evidence i admissible to the extent that the statement is necessary:

Answer 10

To respond to a challenge to the witnesses’s veracity or accuracy, based on a previous inconsistent statement of the witness, or

On a claim of recent invention on the part of the witness.