Flashcards in The course of Evidence Deck (44)
What is a judges role in a jury trial?
-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
What are the two systems of justice?
Adversarial or Accusatorial
What are the essential features of the adversarial justice system?
-Facts and evidence emerge through questioning witnesses
-Each party decides who they call, in what order and what should be asked
-The judge's function is to ensure that the evidence is produced according to the established rules
-The judge or jury can't make their own inquiries and go outside the evidence
-The judge should only ask questions of witnesses when justice requires it (in the judges opinion)
-The defendant does not have to give evidence-Facts may be judicially noticed
In relation to oaths or affirmations, what age affects how you are sworn in and what is the difference?
12+ must take an oath/affirmation
Under 12 must be
-informed by the judge of the importance to tell the truth and not telling lies and
-after being given that information, make a promise to tell the truth, before giving evidence
Can a witness of any age give evidence without taking an oath?
yes, with the judges permission but they must be told the importance of telling the truth.
What is contained in s84 in relation to the examination of witnesses?
Examination of witnesses
Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
a witness first gives evidence in chief; and
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
after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
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.
What is the general sequence of jury trials?
-Jury and foreperson selected and judge commences trial with brief opening instructions.
-Crown makes opening address
-Crown proceed to present case and each witness is called and gives evidence in chief then cross-examined then reexamined if necessary. The judge may also ask questions.
-Defence open their case (if they wish to run one)
-Defence present their case and call witnesses who are examined then cross-examined by prosecution as set out above.
-Crown concludes by making a closing address (no new information may be introduced)
-Defence close for the purpose of summarising the defence case
-Judge sums up for the jury before the jury leave to consider their verdict.
Does the defence have to call any evidence?
What is 'a view'
Is an inspection of a place or thing that is not in the court room.
Any information obtained during a view may be used as though the information had been given in evidence.
What restrictions are placed on commenting about the defendants failure to give or offer evidence?
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
What inferences can be made from the defendant claiming their right to silence?
No person can invite a fact finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to a statement or disclose a defence before trial.
What is the general rule about leading questions?
They may not be asked during the giving of evidence in chief or re-examination.
What is the definition of a leading question?
A question that directly or indirectly suggests a particular answer to the question.
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for what reasons?
-There is a natural tendency for a person to say yes to a suggestion put to them even if it does not precisely accord with their own view of what happened
-Counsel asking leading questions can more easily elicit an answer they want reducing the spontaneity and genuineness of the testimony
-Danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and witness
What is the goal of giving evidence in chief?
Is to draw out the witness's own recollection and to permit the trier of facts to judge the quality of the witness's testimony.
When are leading questions permitted?
Leading questions in examination in chief and re-examination
In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—
the question relates to introductory or undisputed matters; or
the question is put with the consent of all other parties; or
the Judge, in exercise of the Judge’s discretion, allows the question.
Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.
What are the circumstances where leading questions may be allowed under S89(1)(c)?
-To direct a witness's attention to the subject of identification evidence
-In respect of questions around surrounding evidence to jog a witness's about some fact or event in issue, provided that the answer to the central question is not suggested in the question
-To assist counsel in eliciting the evidence in cheift from young persons, people who have difficulty speaking English and people who are of limited intelligence.
-Where the witness has been declared hostile
What is found in the section that details how a witness can refresh their memory in court?
Use of documents in questioning witness or refreshing memory
For the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the Judge, consult a document made or adopted at a time when his or her memory was fresh.
If a witness wishes to refresh their memory using a document what conditions must be satisfied?
-Leave of the judge is obtained
-Document shown to every other party in the proceedings
-The document was made or adopted at a time when the witnesses memory was fresh
Who must complete a document so that a witness can refresh their memory from it.
The witness themselves or someone acting on behalf of the witness in the witness's presence and assented to by the witness.
How can a witness refresh their memory out of court?
by referring to documents made by any person as long as the document relates to matters which are within the witness's own knowledge.
What does the previous consistent statement rule prevent?
Prevents the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness's consistency.
What is the previous consistent statement rule?
Previous consistent statements rule
A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
forms an integral part of the events before the court; or
consists of the mere fact that a complaint has been made in a criminal case.
How may a witness that has been declared hostile be questioned?
May be asked questions in the manner of cross examination to the extent that the judge considers necessary and may include:
-asking questions designed to probe the accuracy of memory and perception
-asking questions as to prior inconsistent statements
-other challenges to veracity, including evidence from other witnesses
What is a hostile witness?
A witness which:
-Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourably to the party who called the witness on a matter which the witness may reasonably be supposed to have knowledge
-Gives evidence that is inconsistent with a statement made by that witness in a manner the exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness
-Refuses to answer questions or deliberately withholds evidence
Difference between a hostile witness and unfavourable witness?
Witnesses who simply fail to come up to brief may not necessarily be hostile.
What is the purpose of cross-examination?
-To elicit information supporting the case of the party conducting the cross-examination
-to challenge the accuracy of the testimony given in evidence in chief
Who has the right to cross-examine a witness?
All parties except the party who called the witness
What are the statutory controls for cross examination?
-Cross-examination duties - s92
-limits on cross-examination by parties in person - s95
-the prohibition on unacceptable questions - s85