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EVIDENCE SCAFFOLD 1. ADDUCING EVIDENCE
1.1. Calling a witness
• Civil litigation: parties decide who to call
• Criminal litigation: Prosecution must call all witnesses that are material to the case, even if they do not assist the case – Kneebone; Apostilides
• Judge may call, but rare 1.2. Competence and compellability
1.2.1. Presumption every person is competent and compellable (s 12) 1.2.1. Rebutting the presumption issues are considered on voir dire
• Competence e.g. child/intellectual disability? s 13
o Basic: to give any evidence, W must be able to understand a question about a fact and give an answer that can be understood (s 13(1))
o Sworn evidence: s 13(3) – W must understand the obligation to give truthful evidence.
‘Obligation’: moral and legal sense (GW)
o Unsworn evidence: s 13(4) – can still give unsworn evidence if not competent, court must tell W the points in s 13(5)
o Failure to strictly comply with s 13 will lead to miscarriage of justice (SH)
SH – instructions in s 13(5) were not given in full
GW – W was allowed to give unsworn evidence when they were competent to give sworn evidence
• Defendants in criminal proceedings
o D not competent to give evidence for the Prosecution (s 17(2))
o Associated D not compellable to give evidence for or against a defendant (s 17(3))
Unless tried separately
Tried jointly: s 17(4) court is to satisfy itself that W is aware of s 17(3)
• Spouses & family in criminal proceedings – spouse, de facto, parent or child of D (s 18(2)) o May object to giving evidence for Prosecution: s 18(2)
o If an objection is made, evidence must not be required if court finds that (a) likelihood of harm to the person or relationship; and (b) nature and extent of that harm outweighs the desirability of having the evidence (s 18(6))
Court must consider (non-exhaustive) s 18(7) (a) nature and gravity of offence;
(b) substance and importance of any evidence the person might give; (c) if any other evidence is reasonably available; (d) nature of relationship between D and person;
(e) whether info was received in confidence
Khan – wife had an affair and husband killed lover. Although it was a serious murder case and the substance pertained to a key matter in the case, court gave weight to the strong marital relationship not compellable
o Exceptions: s 19 s 18 does not apply to: (a) offences against children; (b) proceedings under s 279 Criminal Procedure Act 1986
1.3. Examination 1.3.1 General matters
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• No inherent right to cross examine, only a right to fair trial, but courts usually permits it – GPI Leisure Corp Ltd v Herdman Investments (No 3)
• Court:
o Court has control over the questioning of witnesses s 26 may make orders re the way witnesses are to be questioned, use of documents, order which parties may question, presence and behaviour of any person
o TJ should not intervene due to risk of bias (Re Esposito)
o But acceptable where J is elucidating an area of evidence that has been overlooked or left uncertain; asking questions to understand the evidence (Ryland v QBE Insurance (Australia))
• Reviving memory
o Must not use a document to revive W’s memory unless court gives leave: s 32(1). Take into account: s 32(2)
Whether witness will be able to recall without using document
Whether document was written or made at a time when events recorded were fresh in W’s memory; or was found by W to be accurate at the time
o Police evidence: s 33 police officer in a criminal proceeding may read/be led through a previous written statement, made at the time or soon after the event
Dodds – written statement made 18 months after was admissible as it was made in relation to a recording which was contemporaneous
o Where attempts have been made to revive memory out of court: s 34 at the request of another party, court can give directions to ensure that such documents are produced
• Calling for a document 1.3.2. Examination in chief
• Leading questions: s 37 cannot be put in examination in chief or re-examination
o Unless: with leave; question relates to a introductory matter, no objection made, relates to a matter not in dispute, witness is an expert witness
o Leading questions can be put to an expert witness (s 37(1)(e))
• Unfavourable witnesses: s 38 with leave of court, party may examine own W as though they were cross examining if W is unfavourable
o In granting leave, consider: s 38(6) – whether the party gave notice at the earliest opportunity of intention to seek leave; the matters and extent to which, the witness has been or is likely to be questioned by another party; and s 192(2)
o Scope of cross-examination – conflicting authorities:
R v Hogan – important to limit the ambit
R v Le (Heydon J) – broad scope
• Vulnerable witnesses special arrangements for evidence of child witnesses, sex offence complainants
o Pre-recorded evidence, evidence by CCTV, give evidence through intermediary o Reduced party control, reduced confrontation, hearsay, discontinuous trial o Ct must warn jury not to view the defendant prejudicially
1.3.3. Cross-examination of witness
• Form of questioning:
o No improper questions: s 41 court must disallow
o Leading questions permitted unless disallowed by the court – s 42
• Cross-examination on documents may cross examine W about a PIS
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o May be cross-examined without being shown the PIS or particulars: s 43(1)
o If W does not admit, counsel must: s 43(2) – (a) inform W of enough of the circumstances of making the statement, and (b) draw W’s attention to so much of the statement as is inconsistent if not, then can adduce evidence of PIS
o W may be cross examined on a previous representation of other persons if evidence has been admitted or court is satisfied that it will be admitted – s 44
• Rule in Browne v Dunn cross examiner must put evidence that is contradictory to the W’s testimony to W, to give them an opportunity to explain
o Consequences of breach:
Civil – drastic consequences – the court may accept W’s evidence as true (Demir;
O’Gara) or W could be recalled pursuant to s 46(1) (O’Gara)
Criminal – less drastic as court will not lightly disregard defence evidence. Recall witness (Khamis), overturn conviction (Birks), miscarriage of justice, retrial (SWC)
• Exception: MWJ – allowed to rely on contradictory evidence after cross examination where counsel’s knowledge came after W gave evidence, strategy evidence
o Appeals: cannot raise a matter on appeal that was not put to W at trial – Prior v Mole 1.3.4. Re-examination
• Only question about matters arising out of evidence given by W in cross examination – s39 o Not limited to clarifying ambiguities, allowed wherever an answer in cross examination
would leave the court with a distortion/incomplete account of the truth – Drabsch v SGI o Can seek leave for further examination in chief
• No leading questions – s 37 1.3.5. Re-opening
• Criminal: strict prohibition against P re-opening case
o Exceptions: issues not raised until D’s case was made – cases where D bears the burden of proof (e.g. statutory defence) and raised new issues
Can repair omissions of technical and non-contentious nature or prove a PIS (s 43(3);
Chin)
No reopening if foreseeable that the evidence would have been used – Chin
• Civil: where it is in the interest of justice – Urban Transport Authority v Nweiser
o Nweiser – forgot to call a witness few minutes after closing, not a change of tactics, no prejudice to P
1.3.6. Real evidence – judge may order a demonstration, experiment or inspection (s 53(1))
• Scope: Evans (Heydon J)
o ‘Inspection’: out of court view of a place/location
Does not apply to demonstrations and experiments in court - Evans o ‘Demonstration’: includes reconstruction/re-enactment, commentary (testimony);
o ‘Experiment’: a test, trial or tentative procedure for the purpose of discovering something or testing a principle of hypothesis
• Cannot make the order unless parties will be given reasonable opportunity to be present (s 53(2)(a));
and judge and jury will be present (s 53(2)(b))