The Course of Evidence Flashcards
Judge’s role in trial by jury
When a judge is presiding over a trial by jury, he or she must:
- 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.
Features of adversarial justice system
The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law. The essential features of this system are:
- The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
- It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked.
- Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
- During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
- Neither the judge nor the jury is generally entitled to go beyond the
evidence presented by the parties and call witnesses or pursue inquiries of their own. The judge may require the prosecution to call a witness who has not been called, but this right is exercised only rarely, and although the judge has the right to recall witnesses where necessary in the interests of justice, it is exercised only in exceptional cases. - By the same token, the judge should only ask questions of witnesses when, in the opinion of the judge, justice requires it. This will usually be for the purpose of clarification or the elimination of irrelevancy. Judges must be careful not to “descend into the arena” by asking questions which go beyond the points and issues being advanced by the parties themselves.
Jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness.
- The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
- Facts may be judicially noticed where they are known and accepted and so cannot reasonably be questioned, or where the facts are capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned. Judicially noticed facts do not need to be proved. In addition, a judge may admit as evidence any published documents that are deemed to be reliable sources of information in matters of public history, literature, science or art.
Oaths and affirmations
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77). Witnesses under the age of 12 must:
- 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.
Notwithstanding these general requirements, with the judge’s permission, a witness of any age may give evidence without taking an oath, making an affirmation or a promise to tell the truth. If the judge gives such permission, he or she must 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 then be treated as if it had been given on oath. Permission will be given for witnesses, such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.
Jury trials
The Criminal Procedure Act 2011 governs the conduct of all trials. In general there are now fewer differences between the process for judge alone and jury trials.
As under the previous law for jury trials, the prosecution open the case and call witnesses, to be followed by the defence opening and calling of witnesses. The Court may give the defendant leave to make an opening statement before the prosecution calls any witnesses. By virtue of s107 of the Criminal Procedure Act 2011, the defence may call a witness immediately after a prosecution witness (previously this only applied to expert witnesses).
This provision is designed to assist the jury in building up a “story” about what happened and how the evidence fits together.
Section 84 of the Evidence Act 2006 further provides:
Examination of witnesses
(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2) If a witness gives evidence in an affidavit or by reading a written
statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.
Sequence of jury trials
Jury trials will generally continue to run according to the following sequence:
- After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof etc.
- The Crown then makes an opening address, in which the prosecutor will provide a detailed explanation of the charge or charges, reiterate the burden and standard of proof, and summarise the case against the defendant and the evidence that the Crown proposes to call.
- Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness to clarify or qualify any matter which was raised during the crossexamination (“re-examination”).
The judge may ask a witness any question that, in the judge’s opinion, is required in the interests of justice
(s100 Evidence Act 2006).
- If the defence intends to call evidence, it will open its case at the
conclusion of the Crown case by making an opening address to the jury. In some cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In others, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case. - The defence then presents its case by calling its witnesses, who are
subject to the process of evidence in chief, cross-examination and reexamination as set out above. - The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
- Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
- Finally, the judge sums up to the jury before it retires to consider its verdict.
Sequence may be varied
It should be reiterated that the defence is not obliged to call any evidence. In the event that it does not do so, the trial proceeds immediately to closing addresses at the conclusion of the prosecution case. Should any hearing proceed without the defendant, s124 Criminal Procedure Act 2011 outlines the applicable procedure to follow
Although this is the usual sequence, it may on occasions be varied. In
particular, it is becoming increasingly common for defence counsel to provide a brief statement of the issues in dispute in the case at the conclusion of the Crown opening and before the prosecution calls any witnesses, so that the jury is made more aware of what the case is about before it hears any evidence. In such cases, the defence is still entitled to make a full opening address at the conclusion of the prosecution case if it intends to call evidence.
The Criminal Procedure Act 2011 has repealed many of the traditional distinctions between summary defended hearings and jury trials. It provides for four categories of offence: judge alone trials for Category 1 and 2 offences (not punishable by imprisonment, or punishable by a maximum of less than 2 years’ imprisonment respectively); judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, which a limited list of offences in schedule 1 of the Act that are tried by a High Court jury unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).
A view (inspection of place or thing outside courtroom) may be held
In some trials, a “view” may be held. A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or building where the alleged offending took place). The judge decides whether or not a view should be held. If a view is held, all parties and their lawyers are entitled to attend. Information obtained at a view may be used as though the
information had been given in evidence.
Demonstrations and reconstructions may also be held if relevant and if their probative value outweighs the risk of unfair prejudicial effect on the proceeding.
