LWB432 Evidence Week 9-12 Murray Mccarthy

LWB432 Evidence Week 9-12 Murray McCarthy

Week 9-12

INTRODUCTION

(1) Adversary System:

n Fundamental feature of the adversarial system is the parties' CONTROL over:

· the evidence that goes before the court

· the witnesses to be called,

· the order of witnesses and

· to some extent the evidence they will give.

n Evidence is usually given orally in court, by way of question and answer format.

n In CIVIL cases, the court may also allow evidence to be given by way of written statement or affidavit.

Commonwealth Evidence Act Provisions

n Section 26 provides that the COURT may make such orders as it considers just in relation to:-

ð the way in which witnesses are to be questioned

ð the production and use of documents and things in connection with the questioning of witnesses

ð the order in which parties may question a witness

ð the presence and behaviour of any person in connection with the questioning of witnesses

Other points to note:

ð NOTE the Act assumes the continued existence of the adversary system and the circumstances in which a question may be rejected without objection is very limited.

ð The intervention of the trial judge should therefore take place only with good reason.

n Section 27

ð A party may question any WITNESS except as provided for by the Act.

ð “Witness” includes a party giving evidence including a defendant in a criminal trial.

ð Note that the provision is silent as to the power of a trial judge to question a witness and thus the common law position is likely to remain.

n Section 29

(1) A party may question a witness in any way the party thinks fit, except as provided for by the act or as directed by the judge

(2) A witness may give evidence wholly or partly in narrative form if the party calling the witness has applied AND the court so directs. This means that instead of answering designated questions by counsel, the witness actually narrates the story of the events in testimony.

(3) Evidence may be given by way of charts, summaries or other explanatory material if it appears to the court that the material may aid interpretation.

ð This accords with the common law as referred to in Butera v DPP (1987) 164 CLR 180

ð that oral testimony is desirable but in complicated cases the use of charts is useful in interpreting the evidence.

2). Order of Proceedings:

General Law

n Plaintiff/Crown opening:

· The right to open a case and call witnesses first is usually with the party who bears the legal onus of proof.

(A) counsel summarises nature of case

ð explains to the judge/jury what type of case this is and

ð what the plaintiff intends to prove

(B) summarises evidence to be proved

ð must be in position to call evidence

ð cannot open evidence not later in position to adduce

ð never place a witness in a box if haven’t had personal consultation

n Counsel for the Plaintiff calls witness whose evidence has been opened:

ð never call a witness whose evidence has not been opened

ð tell the court what they are going to say

(A) examination in chief - counsel who called the witness asks the questions

(B) cross examination – counsel for OTHER parties can ask questions

(D) trial judge asks questions if the trial J wishes to do so - these questions should be left until conclusion of re-examination - in exceptional cases it is possible for a Judge to question and/or call a witness

n Defence Counsel will open case:

ð will explain what they intend to do

ð may not wish to call any witnesses OR may call

ð variation note: in some magistrates courts - the magistrate might call the defence to open their case prior to calling the crown witness - This is not advisable

n Defence Witness:

ð examination in chief

ð cross-examination

ð re-examination

n Defence Closing:

ð purpose:

a) to sum up evidence given from witness box by witness called - draw attention to favourable aspects and downplay the unfavourable aspects

ð NOTE: variation - if defence has called no witnesses - then the order reverses and the plaintiff closes first

ð note: if the plaintiff closes first the idea: is to give the defence the last chance before jury (only where def calls no evidence)

n plaintiff / Crown Closing:

ð draw attention to favourable aspect and downplay the unfavourable

ð submissions of law - appropriate time here - draw attention of the trial judge to those matters

n Trial Judge makes summing up:

ð appropriate time for the judge to give any warnings or directions

n verdict entered:

ð jury will retire to consider verdict

ð if no jury - judge will make a formal finding of fact

n Judgment :

ð as matter of law follows from the fact as found in the verdict

n Appeal:

ð when an appeal is considered there are 3 areas of possibility :

(a) something has gone wrong in the trial itself - for example inadmissible evidence is admitted

(b) verdict is inappropriate for the evidence

Under the CEA

n section 28:

ð this position is maintained unless the court otherwise directs

n Section 192

ð lists the general matters which a court should have regard to when giving a direction.

(3) Objections to Evidence:

n One of counsel's functions is to maintain observance of the rules of evidence by taking objection when an opponent attempts

n eg., to introduce inadmissible material, ask a leading question in examination in chief etc.

n Objection should be made immediately the grounds for it became apparent and

n counsel must be prepared to argue those grounds to the judge and to support them with authorities.

ELEMENT 1: 1ST STEP IN ANSWERING AN EXAM QUESTION

1. IDENTIFY WHERE YOU ARE IN THE TRIAL PROCESS

- Crown Case

- Defence Case

2. WHAT STAGE OF EXAMINATION

- Ie X-I-C; X-E; R-E;

- Give a blurb

- State General Rules

3. LOOK TO DIAGRAM

X-I-C (C)

Crown W1 X-E (D)

R-E (C)

------

X-I-C (D)

Defence W1 X-E (C)

R-E (D)

4. APPLY

PHASE 1 - DIRECT EXAMINATION/EXAMINATION IN CHIEF

Object of Examination in Chief: To obtain testimony in support of the version of the facts in issue or relevant to the issue for which the party calling the witness contends

Leading Questions

Common Law:

n GENERAL RULE: - Witnesses may NOT be asked leading questions

Ø Leading questions are:

· questions which suggest the answer - “Isn’t it true that……” OR

· ones which assume the disputed fact - ”at what time did the defendant hit you…..” - this assumes that the defendant did in fact hit him

Example:

ð to put to a witness

ð ”And on 5 May did you see the defendant’s car traveling along Jones Street at high speed and collide head on with the plaintiff’s car”

ð this is an objectionable question - because it is leading

ð Questions should be open ended to allow a witness give their account – ie spit up into smaller questions.

· should rephrase the question

· “At about 11 am on 5 May were you traveling along Jones Street in your vehicle”

· “Did you see a white 1978 model Holden sedan traveling along Jones Street”

· “where was it when you first saw it”

· In which direction was the vehicle traveling

· were you able to form any estimate as to its speed”

n EXCEPTIONS

a) Preliminary matters:

ð Leading questions are allowed for preliminary matters that are NOT in dispute.

ð ie name, address, occupation. – ie “ IS your name Murray McCarthy?” is ok

b) To direct the mind of the witness

ð ask judge for leave to ask a leading question to the witness to direct their mind to what you are talking about.

c) matters not in dispute

ð eg if you ask a question about a matter admitted, then you can ask a leading question.

d) assisting memory where the witness’s memory has failed

ð this is only at the court’s discretion

e) in examining expert witnesses

f) in examining witnesses who have been declared hostile

Commonwealth Evidence Act

n This position is generally maintained by CEA s 37.- ie it basically sets out the common law

n S.37 CEA leading question not to be asked in examination-in-chief or re-examination unless:

(a) Leave granted

(b) Introductory evidence

(d) Matter is not in dispute

(e) Obtaining evidence from an expert.

n Section 41 CEA is captioned 'improper questions' and it places some further constraints upon your ability to question a witness.

41.(1) The court may disallow a question put to a witness in cross-examination, or inform the witness

that it need not be answered, if the question is:

(a) misleading; or

(b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

(Note that there are some occasion on which you will be permitted to cross examine your own witness even though it is a witness called by you).

Refreshing Memory:

Common Law:

GENERAL RULE

n Two basic rules apply if a witness is seeking to refresh memory:

I. General prohibition against a witness giving testimony by tendering or reading from a doc.

ð The expectation is that a witness will answer questions from their memory rather than reading from a prepared statement

II. However a witness may be allowed to refer to a document to “refresh” her or his memory

ð This may be done either prior to or during testimony in court

ð Rule - they have to be asked qns and have to keep answering them until they reach a gap in their memory. THEN they can refer to the document To refresh their memory.

· S.37(3) CEA - court MAY exercise power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Ø Recognises that, not in the law of evidence, but in the rules of court themselves, there are sometimes procedures to be found either in relation to interlocutory proceedings or in relation to the trial itself whereby a written statement can be put in as evidence without running it through a witness in terms of asking them questions.

Ø You just show the witness the statement, ask them if it is their's and then it goes in. (Note that the existence of that kind of rule of court is the exception rather than the rule).

MEMORY REFRESHED OR NOT????

1. Refreshment IN court – Memory Revived

· ie where a witness seeks to use a document while giving evidence for the purpose of actually reviving memory

· Therefore Witness must have exhausted her memory before being permitted to refer to documents Hetherington v Brooks

REQUIREMENTS - FRESH MIND TEST

 The test applied w.r.t the nature of the document that the witness is entitled to look at is known as the "fresh in mind" test.

For witness to be allowed to refresh memory, the document must be:

1. prepared at time when events recorded were fresh in mind of maker

2. made/adopted as accurate by witness when events fresh in mind

ð AND the court’s leave must be obtained

n A copy of doc may be used for purpose of refreshing memory provided it’s proved by witness or someone else to be a copy of the original Van Beelan

WHAT CAN THE OPPONENTS DO?

· If a witness has used a document while giving evidence to refresh memory, then the witness’s opponent may ask to see the document

· At CL - the court has the power to and should direct the witness to hand over the document for the opponent to inspect R v. Kingston.

· However, HC refused leave to inspect the document in Maddison v. Goldrick

· Therefore if for some reason the CL does NOT go so far as to allow the production of a document in this situation THEN…. It may be compelled by section 49 QEA

R v. Kingston [1986] 2 Qd R

- Qld Criminal Court of Appeal suggested that there were 2 other statutory sources to compel production

- (I) Qld equivalent to the proviso in section 36 Victorian Evidence Act

- (ii) in summary matters the defendant’s statutory right to make full answer and defence

ð Thus - ample power for the court to obtain the document and once obtained it - the court has the discretion to release it to the opponent

King v Bryant

- A police constable was called as a witness for the defendant – to give evidence regarding a car accident.

- The officer had inspected the scene shortly after the accident

- the constable had made a report to his superior containing details of the incident but could not produce the report without the consent of the commissioner of police

- in answer to questions by the magistrate and the defendant’s solicitor the constable stated that he had to read a copy of the report upon receiving the subpoena to give evidence in order to refresh his memory on dates and times, but that when he looked at the report he remembered from his own member and observations, much of the incident

- He stated that any evidence that he would give other than on times and dates would be from his own memory and observations made at the time of the incident

- the constable claimed privilege regarding the document and the magistrate purporting to follow Holm v. Smith held that the report having been perused by the witness must be available to the P for cross examination and allowed the witness to give evidence only of his independent recollection of matter in connection with the incident other than what appeared in his report