The Course of Evidence

Question 1

What is a judges role in a jury trial?

Answer 1

• decide all questions regarding admissibility of evidence
• explain and enforce the general principal of law
• instruct the jury on the rules of law which the evidence is to be weighed once it has been submitted

Question 2

Features of a adversarial justice system

Answer 2

• facts of the case and the evidence that supports the case are determined by questions but by prosecution or defence to the witnesses
• up to each party to decide what witnesses to call, in which order and what to ask
• each party can cross examine the witness
• the judge is to ensure evidence is produced according to the rules
• defendant does not have to give evidence
• facts may be judicially noticed

Question 3

What is the cut off age for making an oath/affirmation before giving evidence

Answer 3

12 or older is affirmation

under 12 the judge tells the importance of telling the truth and not telling lies. Then making a promise to tell the truth before giving evidence

Question 4

Can anyone give evidence without giving an oath, affirmation or promise?

Answer 4

Yes they can, if the judge grants that then they must promise to tell the truth and not telling lies before giving evidence. This can be done to adults with intellectual disability or where a child witness is unable to promise to tell the truth

Question 5

Why would defense call a witness immediately after a prosecution witness

Answer 5

To assist the jury in building up a ‘story’ and how evidence fits together

Question 6

Sequence of jury trials

Answer 6

1) Jury selected, judge gives an opening and reminds jury of keeping an open mind, burden and standard of proof
2) Crown opening, explains the charges, burden of proof, makes a summary of the case and evidence the crown wishes to call
3) Crown presents witnesses, cross examination and re-examination. Judge may also ask questions
4) Defence opening - roles of jury, burden
5) Defence presents witnesses, cross examine and re-examine
6) Crown closing - summaries the case, no new info may be introduced
7) Defence closing - summary
8) Judge summary
9) Jury retires and verdict

Question 7

Does defence have to call any evidence?

Answer 7

No

Question 8

What is category 1,2,3,4 offences

Answer 8

1 - no imprisonment; JAT ONLY
2 - less than 2 years imprisonment; JAT ONLY
3 - 2 year more more imprisonment; JAT or JURY
4 - High court unless JAT is ordered due to complexity or risk of jury intimidation

Question 9

What is a ‘view’ during a trial

Answer 9

An inspection of a place or thing that is outside the courtroom. For example a scene or building where offending occurred.

Information obtained at a ‘view’ may be used as if it’s been given as evidence

Question 10

Who may comment on the defendants not giving evidence

Answer 10

Only the defendant, counsel and judge.

Question 11

What may the judge sat about the Defendant not giving evidence

Answer 11

That the proof still remains with the crown and the jury should not think the defendant is guilty just because they didn’t give evidence, respond to statements to disclose a defence before trial.

Question 12

What is a leading question

Answer 12

One that directly or indirectly suggests a particular answer to the question

Question 13

What are the three reasons that lead to the prohibition of leading questions

Answer 13

• natural tendency for people to agree with suggestions put to them by saying yes
• counsel asking leading questions may elicit the answers they receive, thereby reducing the spontaneity and genuineness of the testimony
• danger that leading questions will result in the manipulation or construction of evidence through collusion, conscious or otherwise between the counsel and the witness

Question 14

What is the goal of evidence in chief and re-examination?

Answer 14

Draw out the witnesses own recollection and to permit the ‘trier of fact’ to judge the witnesses testimony

Question 15

When are leading questions permitted?

Answer 15

• relates to introductory or undisputed matters
• question put with consent of both parties
• judge allows the question

Question 16

Three examples of allowing leading questions

Answer 16

1) direct witness’s attention to the subject ID evidence. eg - Was that the car you saw?

2) Questions around surrounding circumstances to jog a witness’s memory, as long as the answer to the central question is not provided

3) Hostile witness

4) Very young people, difficulty in english or limited intelligence. Though there might be better means such as alternative methods or having a support person

Question 17

What are the two set of rules witness’s can refresh their memory

Answer 17

1) written documentation in court

2) refreshment of memory outside court

Question 18

What is refreshing memory in court and what are the conditions of doing so

Answer 18

When the witness refers to a document made at the time of the incident or shortly after.

Conditions
- leave from judge must be obtained
- document must be shown to all parties
- the document to be made at the time when his or her memory was fresh. Fresh depends on the circumstances, time lapsed and how significant the event was

Question 19

Who must make the document for refreshing memory in court

Answer 19

The witness themselves or a person on the witness’s behalf and by their agreement

Question 20

What is refreshing memory outside of court

Answer 20

Witness’s being refresh by statements, briefs of evidence, OC who interviewed them etc. Any document made by either the witness or someone else, as long as it’s within the witness’s knowledge.

Question 21

What is a hostile witness

Answer 21

1) Witness exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter where the witness may reasonable be suppose to have knowledge of

2) gives evidence that is inconsistent with statements made by that witness

3) refuses to answer questions or deliberately withhold evidence

Question 22

What can the prosecutor ask once witness is deemed hostile

Answer 22

• asking leading questions
• ask questions to probe memory and accuracy
• ask questions to prior inconsistent statements
• other challenges to do with veracity

Question 23

What is the previous consistent statements rule

Answer 23

A previous statement of a witness that is consistent with the witnesses’s evidence is not admissible unless:

• responding to challenges of the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of invention on the part of the witness
• forms an integral party of the events before the court
• consists of the mere fact that a complaint has been made in a criminal case

Question 24

How many previous consistent statements will the judge make

Answer 24

Only as much as necessary to respond to the challenges of accuracy and veracity so that it prevents the potential for the statement to offer more weight than it is

Question 25

Is a witness who fails to come up to brief be deemed a hostile witness

Answer 25

No - not necessarily, even if the witness suffers memory loss or provides evidence inconsistent to statement provides is not necessarily hostile

Question 26

What are the two purposes of cross examination

Answer 26

1) to elicit information supporting the case

2) to challenge the accuracy of the evidence given in chief - by casting doubt of witnesses veracity or eliciting contradicting evidence

Question 27

Who has the right to cross examine a witness

Answer 27

All parties except for the ones calling the witness

Question 28

What type of questioning fall under unacceptable questioning

Answer 28

• improper
• unfair
• misleading
• needlessly repetitive
• expressed in a language that is too complicated

Question 29

What does the judge take into account for unacceptable questioning

Answer 29

• age/maturity of witness
• physical or psychological impairment
• cultural or religious background
• nature of proceeding
• in a hypothetical question, has/will the hypothesis be proved

Question 30

Can a witness be re-examined after being cross examined by counsel

Answer 30

Yes, and the party who called for this witness can re-examine the witness for clarification and work on any issues during the cross examination.

If new information comes to light, then counsel may cross examine this

Question 31

When four things can leave be given for the rebuttal of evidence

Answer 31

• relates to a formal matter
• relates to the conduct of defence
• was not available or admissible before the prosecution’s case was closed
• required to be admitted in the interests of justice for any other reason

Question 32

When may a judge warn a jury about evidence should be scrutinised with care or given less weight

Answer 32

Section 122 - 127

• Evidence may be unreliable
• Certain ways of giving evidence
• Warning about lies
• Children’s evidence
• ID evidence
• Delayed complaints or failure to complain in sexual cases

Question 33

Section 122 - evidence may be unreliable
(judicial directions and warnings)

Answer 33

• hearsay evidence
• statement of the defendant if that’s the only evidence
• evidence given by a witness who may have a motive to give false evidence
• evidence of a statement by the defendant of other person obtained when they were in prison, police station or another place of detention
• evidence of the conduct of the person if that conduct was more than 10 year ago

Question 34

Section 125 - children’s evidence
(judicial directions and warnings)

Answer 34

Treat it as no difference to adult evidence, therefore it prohibits:

• the judge from giving warnings about the absence of corroboration where a warning would not have been given if it was an adult complainant
• any direction or comment that there is a need to scrutinise children’s evidence with special care or that they tend to distort or invent