XIC, XX, REX, Criminal and Civil Flashcards
(33 cards)
When should the D generally testify?
- 1 Point
- Generally before any other defence witness
In CRIMINAL proceedings when will the witness NOT give ORAL EVIDENCE?
( - 2 Point )
- When the judge has made a SPECIAL MEASURES direction for video evidennce
- When the matter is NOT CONTROVERSIAL and the parties have AGREED to adduce the WITNESS STATEMENT
How is EXAMINATION CHIEF carried out in CIVIL proceedings?
- 1 Point
Normally the WITNESS STATEMENT will stand as EVIDENCE IN CHIEF in civil proceedings
Can witnesses discuss their evidence with other witnesses?
- 1 Point
No. Neither can they read or hear other witness’s evidence.
NOTE:
Police officers may discuss and confer notes which they take immediately after the event however this may affect the WEIGHT of the evidence due to the risk of COLLUSION/CONTAMINATION
In case of CRIMINAL PROCEEDINGS
When will a witness (whilst giving oral evidence) be allowed to REFRESH his MEMORY from a document made/verified by him?
( - 2 Points )
- if he gives EVIDENCE that the document RECORDS his RECOLLECTION of the matter at an earlier time
- his recollection of the matter is likely to have been SIGNIFICANTLY BETTER at the earlier time than it is when he testifies
NOTE:
Applies to earlier SOUND RECORDINGS accounts as well
Is it possible to MEMORY REFRESH from a COPY of the document?
( - 1 Point )
Yes
In case of CIVIL PROCEEDINGS
When will a witness (whilst giving oral evidence) be allowed to REFRESH his MEMORY from a document made/verified by him?
( - 2 Points )
- The witness MADE/VERIFIED the document
- The document was CONTEMPORANEOUS - made at the time of the events described or soon after the facts were still FRESH in his memory
NOTE:
CONTEMPORANEITY is a question of FACT and DEGREE.
The court has the discretion to allow memory refresh from a non-contemporaneous document
When are MEMORY REFRESHING DOCUMENTS admissible?
- 5 Points
Usually they are NOT ADMISSIBLE
EXCEPT:
- Where the witness is XXd on parts of the document NOT USED for MEMORY REFRESHING and the party who called the witness WANTS IT ADMITTED
- Where it is ALLEGED that the document is FABRICATED
- where the EVIDENCE of a witness is INCONSISTENT with the document
- DIFFICULT for the JURY to follow XX without a COPY
Hearsay exception (Memory Refresh)?
- 1 Point
Where a witness is XXd on a DOCUMENT used by him to MEMORY REFRESH whilst giving evidence, and the document is consequently received in evidence, THE STATEMENT IS ADMISSIBLE AS EVIDENCE OF THE MATTER STATED of which THE WITNESS’S ORAL EVIDENCE WOULD BE ADMISSIBLE
Admissibility of PREVIOUS STATEMENT where a witness in CRIMINAL PROCEEDINGS is UNABLE TO REMEMBER what they said EARLIER
Where a witness cannot be REASONABLY EXPECTED to remember matters stated by him in a PREVIOUS STATEMENT, the previous statement may be ADMISSIBLE as EVIDENCE OF THE MATTER STATED of which the WITNESS’S ORAL EVIDENCE WOULD BE ADMISSIBLE.
May be admissible IF:
- the statement was made by the witness when the matters stated were FRESH in his MEMORY but he does not REMEMBER them well enough to give oral evidence and CANNOT BE REASONABLY EXPECTED TO DO SO
AND
- He testifies that to the BEST OF HIS BELIEF he MADE the statement and it STATES THE TRUTH
When are PREVIOUS CONSISTENT STATEMENTS admissible?
IN CRIMINAL PROCEEDINGS
( - 6 Points )
Generally inadmissible because they contravene the RULE AGAINST PREVIOUS CONSISTENT STATEMENTS and the RULE AGAINST HEARSAY.
But ADMISSIBLE when falls under one of these EXCEPTIONS:
- [HEARSAY EXCEPTION] To REBUT SUGGESTION OF RECENT FABRICATION
- [HEARSAY EXCEPTION] Where the statement IDENTIFIES or DESCRIBES a PERSON, OBJECT or PLACE
- [HEARSAY EXCEPTION] Where it is a COMPLAINT made by the VICTIM of an alleged offence
- Where it is a WHOLLY EXCULPATORY statement made by the D
- Where the statement forms part of RES GESTAE
- Where it is a statement made by a person FOUND in POSSESSION of RECENTLY STOLEN GOODS or OTHER INCRIMINATING ITEMS and it EXPLAINS his POSSESSION
NOTE:
If the statement falls within one of the 6 exceptions it is admissible as evidence of CREDIBILITY
Where the statement ALSO falls within a HEARSAY EXCEPTION it is admissible as evidence of CREDIBILITY “AND” of the MATTER STATED
When are PREVIOUS CONSISTENT STATEMENTS admissible?
IN CIVIL PROCEEDINGS
( - 2 Points )
Only admissible
- To REBUT a suggestion of RECENT FABRICATION
OR
- with LEAVE OF COURT
What can be done when a witness becomes UNFAVOURABLE?
- 1 Point
Call other witnesses/adduce other evidence to prove what the witness has failed to prove?
NOTE:
BAD CHARACTER EVIDENCE cannot be adduced by the party who called the witness to DISCREDIT the UNFAVOURABLE witness
Who is an UNFAVOURABLE witness?
Who is a HOSTILE witness?
( - 2 Points )
- UNFAVOURABLE: A witness who does not COME UP TO PROOF/FAILS TO PROVE but is not HOSTILE
- HOSTILE: A witness who is UNWILLING to tell the TRUTH on behalf of the party calling him to XIC
How to understand whether a witness is HOSTILE?
Why is the witness behaving this way?
( - 2 Points )
- witness has made PREVIOUS INCONSISTENT STATEMENTS / FORGETS FACTS / REFUSES TO ANSWER QUESTIONS
- motive is IRRELEVANT
What can be done in case of a HOSTILE witness?
- 2 Points
- give the witness a CHANCE to MEMORY REFRESH
- if refuses seek LEAVE OF COURT to DECLARE WITNESS HOSTILE
What FACTORS should the judge take into account when exercising his DISCRETION to DECLARE THE WITNESS HOSTILE?
( - 6 Points )
- NATURE of any EVIDENCE given by the witness
- the WITNESS’S DEMEANOUR
- RESPONSIVENESS to QUESTIONS
- INCONSISTENCIES between EVIDENCE and any PREVIOUS STATEMENT
- ANY EXPLANATION for this DIFFERENCE
- REFUSAL to MEMORY REFRESH
When a witness has been DECLARED HOSTILE, what can be done to deal with him?
( - 3 Points )
- OTHER EVIDENCE can be called to CONTRADICT the WITNESS
- TRIAL JUDGE has a discretion to allow LEADING QUESTIONS
- seek LEAVE OF COURT to XX the witness in relation to his PREVIOUS INCONSISTENT STATEMENT
How to PROVE a PREVIOUS INCONSISTENT STATEMENT?
- 2 Points
Where witness DENIES making such statement,
- mention CIRCUMSTANCES of supposed statement (sufficient to designate the particular occasion)
- ask WHETHER or NOT he has MADE the STATEMENT
In case of PREVIOUS INCONSISTENT STATEMENTS. What happens if he ACCEPTS the previous statement
What happens if he DENIES?
( - 2 Points )
- IF ACCEPTS:
then it becomes the witness’s testimony but can affect CREDIBILITY - IF DENIES:
it becomes ADMISSIBLE as EVIDENCE OF CREDIBILITY
AND
EVIDENCE OF MATTER STATED of which ORAL EVIDENCE would be ADMISSIBLE
When a witness DENIES a PREVIOUS INCONSISTENT STATEMENT and it becomes admissible as evidence of CREDIBILITY and MATTER STATED.
What are the JURY’S OPTIONS?
( - 3 Points )
- ACCEPT the truth of the witness’s CURRENT TESTIMONY
- ACCEPT the truth of the PREVIOUS STATEMENT
- IGNORE BOTH STATEMENTS on the basis that witness is NOT WORTHY OF BELIEF
What are PROPER and IMPROPER questions in XX?
- 2 Points
PROPER:
questions of a nature that the truth of IMPUTATION conveyed by them would SERIOUSLY affect the OPINION of the court as to the WITNESS’S CREDIBILITY.
e.g. ask about previous convictions or discreditable conduct or suggest that a witness is biased
IMPROPER:
questions in which the IMPUTATION concerns matters so REMOTE in time or matters so SLIGHTLY RELEVANT to CREDIBILITY
that the imputation is GREATLY OUT OF PROPORTION
What are COLLATERAL MATTERS and what do they RELATE to?
- 2 Points
- A matter is COLLATERAL when the PARTY XXing the witness COULD NOT have called evidence on that matter fit the WITNESS had not been called
(because the MATTER is not RELEVANT to an ISSUE in the proceedings) - COLLATERAL MATTERS only RELATE to CREDIBILITY of the WITNESS
What will the judge take into ACCOUNT on deciding whether a matter is COLLATERAL?
( - 2 Points )
- necessity, if possible, of not involving the jury in such distractions
- whether admission is in the interest of justice
