1. INTRODUCTION TO EVIDENCE LAW 2
2. RELEVANCE 4
3. PROOF: BURDENS AND STANDARDS OF PROOF 7
STANDARDS OF PROOF 9
4. ADVERSARIAL TRIAL 12
5. WITNESSES, DOCUMENTS, REAL EVIDENCE 14
POWER TO CALL A WITNESS 14
COMPETENCE AND COMPELLABILITY 17
SWORN AND UNSWORN EVIDENCE 23
EXAMINING WITNESSES 23
LEADING QUESTIONS 25
REVIVING MEMORY WITH DOCUMENTS 28
CROSS EXAMINATION 31
RE-EXAMINATION BY PARTY WHO CALLED WITNESS 36
REOPENING A CASE 37
DOCUMENTS 38
REAL EVIDENCE 40
6. CREDIBILITY OF EVIDENCE 43
CROSS EXAMINATION 44
REBUTTING’S WITNESS DENIALS 46
REHABILITATING YOUR WITNESS 48
EXPERT ADVICE 50
7. HEARSAY 51
FIRST-HAND EXCEPTIONS TO HEARSAY 57
SECOND HAND AND MORE REMOTE HEARSAY 63
8. TENANCY AND COINCIDENCE 68
TENDENCY RULE 69
COINCIDENCE EVIDENCE 75
9. CHARACTER OF THE ACCUSED (CRIMINAL) 78
10. OPINION 84
LAY OPINIONS 85
EXPERT OPINIONS 87
11. IDENTIFICATION EVIDENCE 96
12. DISCRETIONS (s 135 – 139) 105
PROBATIVE VALUE 106
UNFAIR PREJUDICE 110
ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE 115
13. ADMISSIONS 120
HEARSAY EXCEPTION 121
SILENCE IN POLICE INTERVIEW 124
PROVING WHO MADE THE ADMISSION AND RISK OF FABRICATION 127
S MANDATORY EXCLUSION: OPPRESSION 130
MANDATORY EXCLUSION: RELIABILITY 131
MANDATORY EXCLUSION: IMPROPERLY OR ILLEGALLY OBTAINED
OMISSIONS 133
LAST RESORT FAIRNESS OF PROSECUTION EVIDENCE 134
14. PRIVILEGE ON WITNESSES AGAINST SELF-INCRIMINATION 137
15. PROOF II 139
FINAL ADDRESSES AND SUMMING UP 139
JUDICIAL NOTICE 141
INFERENCES FROM ABSENCE OF EVIDENCE 143
16. WARNINGS 148
UNRELIABLE EVIDENCE 148
CHILDREN’S EVIDENCE 151
DELAY AND CREDIBILITY 153
DELAY AND FORENSIC DISADVANTAGE 154
1. INTRODUCTION TO EVIDENCE LAW
Relationship between Evidence Act and the common law and statutes and powers - s 8 Operation of other Acts : EA does not affect operation of other acts
- Not a code: s 9(1) Application of Common Law and equity
This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
- Exception: BUT it has been held to cover the field (expressly) and be a code in relation to: i. Chapter 3 Admissibility (per Telstra Corp v Australia Media Holdings; Branson J in Quick v Stoland Pty Ltd referring to s 56(1) Evidence Act)
- Power of court to control its own proceedings: s 11(1) General powers of a court The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
- e.g. s 26 (general power to control the questioning of witnesses) or s 34 (power to require the production of a document)
The Judge, Jury and the Voir Dire
- Voir dire: pre-trial procedure used to determine the admissibility of particular evidence - When the court needs to determine a factual question when deciding whether a witness
is competent or compellable or an item of evidence is admissible, or if evidence should be used against a person: s 189(1)
A. Division of responsibility between judge and jury - Most civil and criminal trials are heard by a judge alone - In a non-jury trial
5. WITNESSES, DOCUMENTS, REAL EVIDENCE
POWER TO CALL A WITNESS Who can call a witness?
1. General Rule = The Act does not deal with the calling of a witness by a party or the court. It is left to the common law and the power of a court to control the conduct of a proceeding: s 11
- Suggestion that in certain cases the court may call a witness, if appropriate s 26 Courts control over questioning of witness
The court may make such orders as it considers just in relation to-- a. the way in which witnesses are to be questioned , and
b. the production and use of documents and things in connection with the questioning of witnesses, and
c. the order in which parties may question a witness, and
d. the presence and behaviour of any person in connection with the questioning of witnesses.
2. Judge’s ability to call witnesses Civil cases
Rule = a judge in a civil case cannot call a witness without the consent of both parties Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552
- Rule = a judge in a civil case cannot call a witness on his own motion without the consent of both parties ‘as a matter of fundamental principle ” (Powell J)
Reassertion that only in exceptional cases may the judge call a witness Sharp v Rangott (2008) 167 FCR 225; 246 ALR 84; [2008] FCAFC 45
- Besanko J [52]: It was correctly accepted by the parties that at common law the exercise of the power is reserved only for the most exceptional cases and that it would be
regarded as highly unusual for a judge to call a witness in a proceeding Criminal cases
Judge can only call a witness in the “most exceptional circumstances R v Apostilides (1984) 154 CLR 563
- Sexual assault case
- Failure by prosecutor to call two witnesses who were present with the complainant immediately before alleged sexual assault. The trial judge also did not call the two witnesses. So defence called the witnesses and therefore missed the opp to cross-examine them which they argued was prejudicial.
- Held:
- 2. The trial judge is not obliged to question the prosecutor’s reasons or adjudicate the sufficiency of those reasons [a witness was not called]
- 3. The trial judge may ask the prosecutor to reconsider, but cannot direct the prosecutor to call a particular witness.
- 4. The trial judge may make comments to the jury about the effect of the failure to call a particular witness on the course of the trial.
- 5. Save in the most exceptional circumstances , the trial judge should not himself call a person to give evidence.
3. Prosecutor’s Duty to call upon witnesses R v Apostilides
- 1. The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
- A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare
- 6. Refusal to call a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole , is seen to give rise to a miscarriage of justice.
- Decision to not call witness to court depends on fairness of trial on its entirety, so focus on consequences of trial not the misconduct itself
Prosecutor must call a material witness UNLESS the witness’ unreliability is identifiable R v Kneebone (1999) 47 NSWLR 450
- Appeal on grounds that the complaints mother, who alleged to have walked into the room during the rape, commented, left, was not called by the prosecution to be a witness, still in a relationship with perpetrator so concerns of her credibility
- Based on the mothers statement, she did not align with the prosecution's state and seemed unreliable.
- Held:
- Failing to call a material witness is a miscarriage of justice: the mother was a material witness and in failing to ascertain her reliability as a witness a miscarriage of justice occurred: see [49]-[50] & conclusions [57]-[61] (Greg James J)
- This was an eyewitness, and her witness statements would be key.
- Duty to ensure case is presented fairly : “…it is the duty of a prosecutor to determine what witnesses will be called…He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused’s guilt.” [57]
- EXCEPTION: if prosecutor can point to identifiable factors of unreliability of witness e.g. through interviewing them
- “It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary, interviewing witnesses to be able to form the opinion.” [49]
Cannot tailor a case to a planned case theory:
- “In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable , merely because the witness' account does not accord with some case theory which is attractive to the prosecutor …. The prosecutor should not espouse a theory and tailor a case accordingly: Regina v. Anderson (1991) 53 A. Crim.
R. 421.” [50] Greg JamesJ
MIXED STATEMENTS – no set rule – just must be fair Nguyen v The Queen (2020) 94 ALJR 686
- N pleaded not guilty to causing serious harm and assault with a weapon.
- Crown case was that he threw two bottles of beer at two different victims, they had a witness saying N victims had a dispute, N followed one and hit him in the head - In a police interview, N admitted to throwing the bottle but in self-defence
- Prosecutor decided not to tender the recorded interview in the second trial for tatcial purposes (otherwise it would be subject to cross-examination)
- Throw bottle, but self defence, not really for prosecution or defence side - Held: Record of interview should have been tendered
- ‘Mixed statement’ as it was not necessarily for the prosecution or defence, as it included an admission to throwing bottle, but the defence too
- Divergence of opinion as to whether prosecution has to tender “mixed statements” [32]
BUT there can be no doubt that fairness encompasses the presentation of all available, cogent and admissible evidence . [36]
4. Calling experts
Prosecution not bound to call all experts for both sides, can do their experts only Velevski v The Queen (2002) 76 ALJR 402
- Husband accused of murder of wife and children
- His defence being it was actually the wife who killed the children, then committed suicide - So was there is a murder murder or a murder then suicide
- Forensic pathologist goes to scene and favoured the murder suicide (i.e the accused) - Prosuection called a number of other experts in favour of murder murder theory but
potential experts that would’ve supported the murder suicide approach were not called - Held: Not a miscarriage of justice, no need to call all experts
- Prosecution is bound to ensure that the prosecution case is presented with fairness to the accused – this does not mean the prosecution is required to seek out and adduce evidence of competing or contradictory opinions.
- Fairness does not require some ‘head count’ of experts w/ different opinions.
- Cf R v Apostilldes experts vs witnesses of fact: which was concerned with obligations of prosecution involving witnesses of facts of the case, not expert evidence of opinion so no balancing act here is needed I.e. hiding something like eye witnesses which is crucial vs experts aligning with their point
Summary
- Judge should only call witnesses in exceptional circumstances given adversarial system - Prosecution should call all available witnesses necessary to unfold the narrative for the
trier of fact – particularly the case for eyewitnesses to disputed events.
- Exceptions: repetition, unreliability (but with sufficient reasons).
- Insufficient reasons: conflict with prosecution’s case theory, witness with sympathy for the defence: Kneebone
COMPETENCE AND COMPELLABILITY Competency = ‘capacity’ of the witness to function as a witness (ss12-13) Compellability = compulsion (may be required) to give evidence (ss 14- 20)
Credibility = relates to weight of the witness’s testimony is to be assessed [next week]
Is the witness COMPETENT?
PRESUMPTION: all persons are competent and compellable to give evidence s 12 Competence and compellability
(a) every person is competen t to give evidence, and
(b) all competent witnesses are compellable to give evidence about a fact EXCEPTION: Test to give sworn and unsworn evidence
1. Does a witness have the capacity to understand a question or give an answer that could be understood? (s 13(1))
- If not – not competent
2. Is the competent witness competent to give sworn evidence i.e. do they have the capacity to understand the obligation to tell the truth (s 13(3))
- If not – they can give unsworn evidence subject to court directions in subs (5) s 13 Competence: lack of capacity
Is the witness competent ?
(1) A person is not competent to give evidence, for any reason (including mental, intellectual or physical) if they do not have the capacity to (a) understand a question , OR (b) give an answer that can be understood to a question about the fact
(2) But they may be competent to give evidence about other facts . Is the witness competent to give sworn evidence?
(6) Presumption: in favour of competency to give sworn evidence (unless..)
(3) A person may lack the competency to give sworn evidence about the fact if they do not understand the obligation to give truthful evidence
- Judge needs to be affirmatively satisfied: The Queen v GW
Is the witness competent to give unsworn evidence?
(4) A person who is not competent to give sworn evidence may be competent to give unsworn evidence
- E.g. young children or persons with mental disability who don’t understand ‘obligation’
(5) But they may give unsworn evidence if the court has told the person – a. That it is important to tell the truth
b. That they may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs c. That they may be asked questions which suggest certain statements are true or
untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue
- This specific instructions in (5) require strict compliance: SH v The Queen (8) The court may inform itself as it thinks fit to determine a question under s 13, by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience
s 13(5)(c) requires strict compliance by judge to give the necessary instruction SH v The Queen (2012) 83 NSWLR 258
- The accused was convicted for sexual assault of a girl aged under 10. The complainant, as a witness for the Crown, gave unsworn evidence. The accused appealed arguing the judge failed to give a necessary instruction to the complainant hence she was not competent
- Judge: Now do you also understand that if someone suggests to you that something is untrue, when you say that it’s true, that you should tell us that what they’ve said to you is wrong?” BUT DID NOT refer to ‘should feel no pressure’ in s 13(5)(c)
- Held: Complainant not competent (wasn't directed under s 13(5) in full)
- Basten JA said subs 5(c) had two elements – “The prospective witness is advised to agree with those suggestions which he or she thinks are true, but should feel no
pressure to agree with statements believed to be false” [11]
- The explanation does not have to be verbatim, but must accurately explain the contest of the three paragraphs “section 13(5)(c) does not impose an obligation to give instruction in a particular form, but to a particular effect. There is room for
differences of opinion as to whether a particular instruction is sufficient in respect of a specific witness” [22]
The Queen v GW [2016] HCA 6
- Charged with committing an act of indecency in the presence of his daughter, under 10.
Following a voir dire, Burns J held that the evidence should be received unsworn.
- Defendant appealed saying the judge failed to apply the presumption of competence to give sworn evidence before determining evidence be unsworn and failed to direct jury concerning the significance of daughters evidence being unsworn
- Held:
s 13(3) does not require strict compliance, as long as judge is affirmatively satisfied the witness did not have the capacity to give sworn evidence
- s 13(3) requires the judge to be affirmatively satisfied that the [witness] did not have that capacity to give sworn evidence before admitting unsworn evidence not satisfaction that [witness] has the requisite capacity. [28]
- The fact that Burns J did not use the exact wording is not determinative (did not matter that he reversed the question)
- Essentially the judge had taken the action necessary to understand the capacity of the witness, and so it did not matter the form of his conclusion
- “There are many ways to explore whether a child understands what it means to give evidence in a court and the concept of being morally or legally bound to be truthful in doing so. Prosecutor here questioned R about her understanding of swearing an oath.
Her lack of understanding was not determinative but it was not irrelevant to the formation of the opinion that she did not possess the capacity to understand the obligation” [27]
Unsworn evidence is still evidence and is treated no differently from other evidence - The EA does not treat unsworn evidence as unreliable, there is no requirement to warn
the jury that R’s evidence may be unreliable because it was unsworn (both in EA and common law)
- Cases not involving a child witness… It is possible that different considerations would apply where a witness other than a young child is capable of giving evidence about a fact but incapable of giving sworn evidence because the witness does not have the capacity to understand that, in giving evidence about the fact, he or she would be under an obligation to give truthful evidence. [57]
Cf SH where 13(5)(c) was interpreted strictly vs GW. Difference is here the judge procedurally the right thing but just expressed his determination in the wrong language (still did analysis) whereas 13(5) related to how witness were instructed to understand their obligation
EXCEPTION: Defendant is not competent (and co-defendant is not compellable) s 17 Competence and compellability: defendants in criminal proceedings
(2) A defendant is not competent to give evidence as a witness for the prosecution .
- Incompetence of a defendant as a crown witness is a ‘fundamental rule’
Kirk v Industrial Relations Commission (2010) 239 CLR 531
- In a joint trial of two defendants (a company and a director of the company) for offences under the Occupational Health and Safety Act, the prosecution called the director defendant as a witness (at his request).
- Held:
- Defendant not competent to give evidence against a co-defendant if tried jointly [52]
- Used to be controversial, but now the accused is not to be a competent or
compellable prosecution witness, but is a competent witness for the defence : see s 17(2) ... It is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales. [115]
- The focus was on s 17(2) not s 17(3) so defendant is NOT COMPETENT
- The only work apparently left for s 17(3) is that a co-defendant can’t be COMPELLED by an associated defendant to give evidence unless tried separately
EXCEPTION: Judge and jury is not competent
s 16 Competence and compellability: judges and jurors
(1) Judge and jury not competent to give evidence in current proceeding
Is the witness COMPELLABLE? Not forced to testify but may be able to
PRESUMPTION: all persons are competent and compellable to give evidence s 12 Competence and compellability
(b) all competent witnesses are compellable to give evidence about a fact
EXCEPTIONS: reduced capacity (s14), Heads of State, Parliamentarians (s 15), judges and jurors (s 16), and, criminal defendants (s 17)
s 14 Compellability: reduced capacity
A person is not compellable to give evidence if the court is satisfied that--
a. substantial cost or delay would be incurred in ensuring the person would have the capacity to understand a question or give an understandable answer, AND
b. adequate evidence on that matter will been given by other witnesses s 15 Compellability: Sovereign and others
Cannot compel head of state, Governor of a state, G-G, or Parliamentarian (if conflicts with sitting or committee meeting), foreign sovereign or head of foreign country
s 16 Competence and compellability: judges and jurors
(1) Judge and jury not competent to give evidence in current proceeding
(2) Judge in a proceeding cannot be compelled to give evidence about that proceeding without leave
Criminal cases
- Spouses, de facto partners, parents or children of defendants in criminal proceedings may object to testifying under s18 (except in certain specified circumstances, s19) - If they don't testify, s20 controls the comment that may be made to a jury about the fact.
Controls the comment that may be made to a jury about the failure to give evidence s 20 Comment on failure to give evidence
(1) Applies to criminal proceedings for an indictable offence.
(2) Judge and other party can comment (not prosecution) on defendant’s failure to give evidence, and failure of spouse, parent or child to give evidence
(2) But only another party (e.g. co-defendant) can suggest that this was because the defendant believes that he/she is guilty. The judge cannot do this.
Defendants and associated defendants not compellable (unless tried separately) s 17 Defendants & Associated Defendants as witnesses in criminal proceedings
(1) criminal proceedings only
(2) A defendant is not competent to give evidence as a witness for the prosecution . (3) An associated defendant is not compellable UNLESS they are being tried separately
- Can only be cross-examined if they give evidence on their own behalf
(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).
"associated defendant" in Dictionary = in relation to a defendant in a criminal proceeding, is a person against whom a prosecution has been instituted, but not yet completed or
terminated, for:
a. an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose, OR
b. an offence that relates to or is connected with the offence for which the defendant is being prosecuted.
Spouses, partners, parents, child may object to giving evidence
s 18 Compellability of spouses and others in criminal proceedings generally (1) criminal proceedings only
(2) The spouse, de facto partner, parent or child (not step-children) of a defendant MAY object to being required to give evidence— except in s 19 circumstances
a. to give evidence , or
b. to give evidence of a communication between them, as a witness for the prosecution.
(3) Timing: Person is to object as soon as practicable
(4) Awareness of provision: court is to satisfy itself that the person is aware of this section (5) Objection to be heard in the absence of jury :
(6) Person who objects must not be required to give evidence if the court finds–
a. there is a likelihood that harm would or might be caused (whether directly or
indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and
b. the nature and extent of that harm outweighs the desirability of the evidence (7) For (6), the court must take into account the following— (not exhaustive)
a. the nature and gravity of the offence for which the defendant is being prosecuted, b. the substance and importance of any evidence that the person might give and the
weight that is likely to be attached to it,
c. whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
d. the nature of the relationship between the defendant and the person,
e. whether, in giving the evidence, the person would have to disclose matters received by the person in confidence from the defendant.
Example of harm of spouse giving evidence outweighing desirability
R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995) - Tried for murder of a friend, whom he caught in bed with his wife.
- Prosecution wanted to call wife to testify but she objected to giving evidence of a communication between her and defendant
- Held:
- 18(2) spouse of D may object to giving evidence or evidence of a communication - (a) “evidence” within the meaning of s 18 embraces her statement to the police;
- (b) the evidence could bear on the issue of provocation for which the Crown contends;
- (c) I would not reject the evidence in the exercise of my discretion. Even so, I would not require Mrs Khan to give evidence.
- “I consider that her being required to give evidence would be likely to cause harm to her relationship with the accused of a nature and extent which outweighs the desirability of having the evidence given”
- On the facts: Marriage of 10 years, marriage to continue despite this, evidence she would have spoken to would be of little weight as it can be proved in the Crown case by other evidence hence more likely to cause harm
EXCEPTION: to s 18 for domestic violence and child offences 1. Would s 18 otherwise apply?
2. Is it a relevant offence: s 19
- Children and Young Persons (Care and Protection) Act 1999 (NSW) - Child and young person abuse
- Neglect of children and young persons - Children’s Guardian Act 2019 (NSW)
- Criminal Procedure Act 1986
- Domestic violence offence committed on accused person's family, or - Child assault offence committed on a child living in the household or
otherwise a child of the defendant
3. If so, then s 18 does not apply and they will compellable, subject to the excuse provision in s 279(3) and (4)
s 279 Criminal Procedure Act 1986 (NSW) This process replaces s 18 of EA
(2) “A member of an accused person's family (a) for a domestic violence offence committed on a family member or (b) child assault offences is compellable to give evidence without the consent of the accused person”
(3) But a family member can apply not to give evidence
(4) And may be excused to give evidence for the prosecution if–
a. That application is made freely and independently of threat or improper influence b. That is is relatively unimportant to establish facts in case
c. That the offence in question is of a minor nature (6) This application is to be heard in the absence of the jury
(7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound by rules of admissibility and may obtain information on any matter in any manner it thinks fit
“Domestic violence offences” covers “personal violence offences” on someone that you are in a domestic relationship with – includes murder and most assaults from the Crimes Act 1900 (NSW) on family members. See Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 11.
SWORN AND UNSWORN EVIDENCE
1. A witness must either take an oath, or make an affirmation, before giving evidence ( s 21(1) )
2. EXCEPTION: they are giving unsworn evidence in s 13 ( s 21(2) ) or they are called merely to produce a document ( s 21(3) )
3. Formality of oath: is to comply with appropriate form in Schedule 1 or in a similar form.
4. Interpreters: : Interpreters to act on oath or affirmation in a proceeding ( s 22 ) 5. Choice of witness to take oath or affirmation: is to be given to the witness ( s 23(1) )
otherwise court may direct a person to make an affirmation if the person refuses or it is not reasonably practicable for the person to take an appropriate oath ( s 23(3) )
6. Oath is not necessarily religious, and no consequence required: Oath need not have religious text ( s 24(1) EA ), Oath is effective even if the person taking it did not
understand the nature and consequence of the oath ( s 24(2)(b) EA ). A person can take an oath and not reference to a god ( s 25 EA )
The Queen v QW
- Unsworn evidence is evidence and is treated no differently from other evidence - The EA does not treat unsworn evidence as unreliable, there is no requirement to warn
the jury that R’s evidence may be unreliable because it was unsworn (both in EA and common law)
- Cases not involving a child witness… It is possible that different considerations would apply where a witness other than a young child is capable of giving evidence about a fact but incapable of giving sworn evidence because the witness does not have the capacity to understand that, in giving evidence about the fact, he or she would be under an obligation to give truthful evidence. [57]
EXAMINING WITNESSES
- Order of examination: Unless the court otherwise directs— the examination in chief starts, then cross-examination, then re-examination: s 28
s 26 Court’s control over questioning of witnesses
The court may make such orders as it considers just in relation to—
a. the way in which witnesses are to be questioned , and
b. the production and use of documents and things in connection with the questioning of witnesses, and
c. the order in which parties may question a witness, and
d. the presence and behaviour of any person in connection with the questioning of witnesses
s 29 Manner and form of questioning witnesses and their responses
(1) A party may question a witness in any way the party thinks fit (except as directed by court) (2) A court may, on its own or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.
(3) Though the court can direct evidence to be in any form.
(4) Evidence may be given in the form of charts , summaries or other explanatory material if that would be likely to aid its comprehension of other evidence.
Who can examine witnesses?
Questioning of witnesses by the PARTIES
s 27 Parties may question witnesses
A party may question any witness, except as provided by this Act.
Questioning of witnesses by the JUDGE
Civil cases: Become much more common for judges to take an active part in the conduct of cases ‘wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency’ (FB v The Queen [2011] NSWCCA 217 [93].
Criminal case:
Important for judge to remain above the battle between the pirates R v Esposito (1998) 45 NSWLR 442
- Appellant convicted of murder, appealed on grounds of a mistrial because the judge asked the defendant a long series of questions amounting to cross-examination and which raised new issues. Judge then refused to disqualify himself.
- Held:
- Judges can ask questions to clear up uncertain or equivocal answers, or, within reason, to identify matters that may be of concern to himself.
- Judges cannot resort to extensive questioning , particularly of the kind that amounts to cross-examination in a criminal trial before a jury, he is treading on thin ice.
- Factors to consider include… shouldn’t sore points for one side against the other - Identity of witness being examined
- Whether questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain state
- Whether it is directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties
- On the facts: judge pursued appellant on important issues and did test the truthfulness of his answers (went to memory and drug use) which advanced the crowns case
Cf questions without substance Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120 - Party asserted that the judge compromised the fairness of the trial by excessive
intervention and questioning of witnesses. Party relied on statistical analysis of questions asked in X in C, XXM and ReXM (percentage of questions asked).
- Held: no mistrial
- Questions/interventions were of little relevance – mainly for simple clarifications without unfairness to the trial – e.g. where locations could be found on photos
- Suggested interventions were without substance
- E.g. Q = “it's not possible to reach table 8 without going past one of those food areas?” A = “yes” His Honour = “I can answer that looking at the map, yes”
Questioning of witnesses by the JURY
Should not be allowed as jury has no investigative rule Tootle v The Queen [2017] NSWCCA 103
- Convicted of 11 sexual offences against complainant when he was 13.
- During the trial, the judge invited/encouraged the jury to ask questions. The judge set out a process whereby the jury could pose questions, which the crown would ask a witness - Held:
- “The role of both judge and jury requires that each maintains a position of impartial arbiter , the judge as to procedural, evidentiary and legal issues, and the jury as to the facts and the final determination of whether the prosecution has established, to the requisite standard, the guilt of the accused. Crucially, neither has any investigative or inquisitorial role.” [42]
- The directions to the jury , encouraging the questioning of witnesses, and the process established to facilitate the questioning, altered the nature of the trial in a fundamental respect. The trial was not a trial “according to law” [63]
- Accused could not neutralise any adverse inferences that may have been drawn from the answers to the jury’s questions, contributing to a miscarriage of justice: [85], [91].
LEADING QUESTIONS
Has there been a leading question?
Leading Question Definition (EA) = a question asked of a witness that a. directly or indirectly suggests a particular answer to the question, or
b. assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
- Example:
- “What did you do after Smith hit you?’ — before evidence given of Smith hitting - Following police W’s evidence that search had taken place: ‘Did you find
anything similar to remote control for a garage door?’ Thi Dung Ta [2011]
RULE: Examination in chief CANNOT ask a leading question Examination-in-chief (direct examination)
= questioning of a witness by the party that called the witness prior to cross-examination.
s 37 Leading Questions
(1) Leading question must not be put to a witness UNLESS a. Leave: the court gives leave for such questions
b. Matter introductory: the question relates to a matter introductory to the witness's evidence
c. No objection is made: to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner
d. Not a fact in issue: the question relates to a matter that is not in dispute, or e. Expert witness: if the witness has specialised knowledge based on the witness's
training, study or experience--the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.
Note: s 42(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.
EXCEPTION: Examination in chief CAN ask a leading question if their witness turns UNFAVOURABLE
- Rationale: witness has decided to be unhelpful and so the party calling that witness should have the opportunity to challenge the witness’s evidence.
s 38 Unfavourable witnesses
Application to allow a party to ask their own witness leading questions like they are on cross (1) GENERAL RULE: A party who called a witness may, with leave , question the witness, as though the party were cross-examining the witness, ABOUT —
a. evidence given by the witness that is unfavourable to the party, OR see Garrett b. a matter of which the witness may reasonably be supposed to have knowledge and
about yet the witness is not making a genuine attempt to give evidence , OR c. whether the witness has, at any time, made a prior inconsistent statement
(2) Viewed as cross-examination (4) but done before other parties actual cross-examination - So a party may put a leading question to a witness in cross-examination…(s 42 EA)
(3) Need leave if questioning only credibility: The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
(6) Factors court MUST consider when granting leave: (not exhaustive) ( AND s 192 factors) a. whether the party gave notice at the earliest opportunity to seek leave, and
b. the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
DPP(Vic) v Garrett (2016) 257 A Crim R 509
- Police caught the complainant speeding. The defendant and another police officer (KB) lifted the complainant to his feet, walked him further down the lane, pushed him to the ground and struck him numerous times on his face.
- Following threats from the defendant, the complainant originally stated his injuries were self-inflicted until finally alleging he was assaulted.
- Crown sought leave to cross-examine KB for being unfavourable, as KB gave a statement which the Crown said was ‘exculpatory of the accused’ (said compliant fell over and injured himself), this was not allowed
- Held:
Test for ‘unfavourable’ under s 38(1)(a)
- Lower threshold than hostility (old CL rule)
- “Unfavourable” means ‘not favourable’ instead of “adverse”
- ‘Unfavourable’ means evidence that is inconsistent with, or “likely to be contradictory” to the case which the party is seeking to advance in the
proceeding which depends upon the circumstances of each case. The party’s case can be discerned from the opening, pleadings or evidence.
- Does not matter if there is already other contradicting evidence to the party’s case as the witness can still be unfavourable
- May be unfavourable EVEN IF the witness gives NO EVIDENCE and that actually detracts from the case of the party by whom he or she is called. If the party calling the witness contends that the witness should be able to give evidence supportive of that party’s case, and the witness does not give such evidence , that may suffice to make the evidence given by the witness ‘unfavourable’ within the meaning of s 38.’
- But isn’t that more like s 38(1)(b)??
EXCEPTION: Cross-examiner CAN ask a leading question s 42 Leading Questions
(1) A party may put a leading question to a witness in cross-examination UNLESS the court DISALLOWS the question or directs the witness not to answer it.
(2) Factors the court MUST consider when deciding to disallow a question– (not exhaustive) a. evidence given by the witness in examination in chief is unfavourable to the party who
called the witness, and
b. the witness has an interest consistent with an interest of the cross-examiner, and