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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.


Oaths/Affirmations and Promises

Different age requirements

Sec 77

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.


Examination of a witness

Sec 84 EA 2006

(1) unless otherwise directed by a judge, in any proceeding:
a) a witness first gives evidence in chief

b)is then cross examined by all parties except the party who called the witness

c) after all parties have cross examined, the witness may be re-examined.

(2) a witness giving evidence by reading a statement or affidavit in court, it is treated as evidence in chief.


what is the sequence of jury trials

1 - jury is empanelled and foreperson selected. Judge provides brief instructions to jury about their role, burden of proof etc.

2 -Crown opening statement, explaining the charges and summarising the case

3 - Crown witnesses called to provide evidence in chief, cross-examination and re-examination of crown witnesses occurs.

4 - Defence opening statement.

5 - Defence witnesses called and give evidence in chief, cross-examination, re-examination of defence witnesses occurs.

6 - Crown closing statement, summarising case.

7 - Defence closing statement

8 - Judge sums up to jury. Jury retires to consider verdict.


Commenting on defendant not giving evidence

sec 33 and sec 32 EA 2006

Sec 33 - NO person other than defence or judge can comment on the defendant not giving evidence.

Sec 32 - NO person can invite the jury to draw an inference that the defendant is guilty from his right to silence or not disclosing a defence before trial


What is a leading question?

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

S4 Evidence Act 2006


Leading Question

General rule when may not be asked

and why - Based on the belief that it will produce unreliable evidence for the following reasons:

The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89).

it will produce unreliable evidence for the following reasons:

- Agree- natural tendency for people to Agree with suggestions put to them by saying “yes”

- Easily Elicit - Counsel asking leading questions of their own witnesses can more Easily Elicit the answers which they wish to receive

- manipulation - There is a Danger that leading questions will result in the manipulation or construction of the evidence


When are leading questions allowed in evidence in chief

Sec 89

(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—

(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge allows the question.

Sec 89 EA 2006


Why would the judge exercise his discretion to allow leading questions

4 points

• Identification - To direct the witness’s attention to the subject of Identification evidence (for example, “Was that the car you saw?”).

• Circumstances - questions about surrounding Circumstances in order to jog a witness’s memory, provided that the answer to the central question is not suggested in the question.

•Assist - To Assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence.

• Hostile - Where the witness has been declared Hostile.


Refreshing memory in court

If a witness wishes to consult a document while giving evidence, the following conditions must be satisfied:

• The leave of the judge must be obtained

• The document must be shown to every other party in the proceeding

• S90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”.


When is a Previous Consistent Statements admissible

and what act/sec?

A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement:

Sec 35 (2), EA 2006 - previous consistent statement is admissible if the statement

a) responds to a challenge about witnesses veracity or accuracy, based on claim the witnesses is being untruthful or a previous inconsistent statement
b) is an integral part of the events before court
c) Shows mere fact that a complaint has been made in criminal case


Hostile Witness

If declared hostile, the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers necessary for the purposes of doing justice (s94).

These questions may include:

• Leading questions

• Questions designed to probe the accuracy of memory and perception

• Questions as to prior inconsistent statements, and

• Challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).


What defines a hostile witness?

Sec 4 EA 2006

• Veracity - Exhibits, or appears to exhibit, a lack of Veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge;

• Inconsistent - gives evidence that is Inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

• Refuses - Refuses to answer questions or deliberately withholds evidence.


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


The duty to cross examine under Sec 92 arises when:

• The cross-examination deals with “significant matters” in the proceeding, and

• The matters are “relevant” and “in issue” in the proceeding, and

• The matters “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”.

Sec 92 EA 2006


Unacceptable Questions

Sec 85 (1) EA 2006

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers.......

-needlessly repetitive
-expressed in language that is too complicated for the witness to understand.


Unacceptable Questions

Sec 85 (2) EA 2006

What may a judge take into account when considering to disallow a question put to a witness, or direct the witness they are not obliged to answer?

Judge may have regard to:

(a) the age or maturity of the witness; and

(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and

(c) the linguistic or cultural background or religious beliefs of the witness; and

(d) the nature of the proceeding; and

(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.


What does Sec 96 (1) EA 2006 outline?

Witness can be cross-examined on a previous statement made without being show the statement or having the details of the statement disclosed, so long as the cross-examiner identifies the time, place and circumstances of the making of the statement to the witness.


What is evidence in rebuttal?

Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, which can only be admitted with leave of the court.


Court may give leave for prosecution to provide evidence in rebuttal if it....

• Relates to a purely formal matter

• Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)

• Was not available or admissible before the prosecution’s case was closed,

• is required to be admitted in the interests of justice for any other reason.


Judicial warnings about evidence:

Sec 122-127 EA 2006

• Unreliable - Judicial warning that evidence may be Unreliable – S122

• Giving Evidence - Judicial directions about certain ways of Giving evidence – S123

• Lies - Judicial warnings about lies– S124

• Children's Evidence - Judicial directions about Children’s evidence – S125

• Identification - Judicial warnings about Identification evidence – S126

• Delayed - Delayed complaints or failure to complain in sexual cases – S127


Sec 122 - Warning that evidence may be unreliable

Judge must consider whether to give a warning to jurors whenever the following evidence is given:

(a) Hearsay - Hearsay evidence:

(b) Defendant Statement - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:

(c) Witness Motive - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:

(d) Cell Confession - Evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:

(e) Historic Conduct - Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously


Warnings about lies - sec 124

When MUST a warning be given, and what directions should be given in that warning?

If there is evidence suggesting the defendant lied, a warning MUST be given to jury if the defendant requests the warning be given.

Directions given by judge should be:

• The jury needs to be satisfied that the defendant did lie before they use the evidence,

• People lie for various reasons, and

• The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.


What direction should judge give to jury in Sec 123?

No adverse inferences should be drawn against the defendant where the witnesses has given evidence in an alternate way. or the defendant is not allowed to cross-examine the witness personally, or where witness gives evidence under anonymity.


7 things OC case should do in prepping witnesses for not guilty hearing

- advise witnesses of date and place of trial and any exhibits they need to present

- Advise witnesses of procedure for giving evidence, and how to give evidence

- Advise witnesses of any statements they made and make it available to refresh their memory

- Ensure witnesses are within call if excluded from within court room

- Check jurors are not known to witnesses

- Warn witnesses not to speak with jurors.

- Advise witnesses about witness expenses