#9227 - Examination Of Witnesses - Evidence Law

Examination of witnesses

Examination in chief

Identify that a witness is being examined after being called by a party. If relevant, apply the following rules:

1. No leading questions

   1. A leading question assumes the existence of a disputed fact.

      • Examples: “Look, you’re stumped aren’t you?

   1. 37(1) A leading question must not be put to a witness in examination in chief or in re-examination unless

      1. The court gives leave; or

      2. The question relates to introductory evidence; or

      3. No objection is made to the question (and each party is represented)

      4. The question refers to a matter not in dispute

      5. If the witness has specialised knowledge based on training, study or experience, and the question is asked for the purpose of obtaining the witnesses’ opinion about a hypothetical statement of facts

2. Reviving memory

   1. While giving evidence

      • Section 32(1): A witness must not while giving evidence use a document to revive memory unless the court gives leave

      • 32(2) In determining leave, without limitation, the court must take into account:

        1. Whether the witness will be able to recall the fact or opinion adequately without using the document (question of necessity); and

        2. Whether so much of the document the witness proposes is a document that:

           1. Was written when the events were fresh in his or her memory, or

              • Police statement might/might not be fresh, depends on crime

           2. Was, at such a time, found by the witness to be accurate Van Beilan

              • Checked or verified by the person

      • When courts give leave, must also take into account 192, 135, 137 (see below)

      • 32(3)The witness can read aloud from the document.

      • 32(4) The court may give directions for the document to be produced to other parties

        • so that the other party is aware and can cross-examine them on it

      • Evidence given by police officers R v Da Silva

        • S 33(1) Despite s 32, in any criminal proceeding a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by that officer

        • 33(2) Evidence may not be given unless:

          1. the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and (stricter time period)

          2. the police officer signed the statement when it was made; and

          3. a copy of the statement had been given to the person charged or to the person's Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.

   2. Out of court

      • You may use a document to revive memory before giving evidence, though you cannot refer to it while giving evidence. During an adjournment, a person can refresh their memory with a document that is not strictly contemporaneous if the witness:

        1. Cannot recall events because of the lapse of time

        2. Made a statement much nearer to time and the contents of the statement represented his recollection at the time he made it

        3. Had not read the statement before coming to the witness box; and

        4. Wished to read it

      • 34(1) However, the court may, on request, give such directions as are appropriate to ensure documents used by a witness to revive memory outside of court are produced to the other party for the purposes of the proceeding.

        • 34(2) The Court may refuse to admit evidence the directions have not been complied with i.e. find out they have used a document during adjournment, they refuse to produce it, then the court may refuse to admit the oral evidence of the accused

   3. Will the document be tendered?

      • 35(1) A party is not required to tender a document (goes to jury) only because the party called for the document to be produced or inspected it

      • 35(2) The party who produced a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it

      • Helps to deal with a situation where you want to see what the document is, but don’t necessarily want it going to the jury

3. Prior consistent statements

   1. See topic 6: Character and Credibility

4. Unfavourable Witnesses: (when you have called them)

   1. Section 38 EA: A party who called a witness, with leave, may question as if it were cross-examination (i.e. one can ask leading questions) about (PICK ONE OR MORE)

      1. Evidence given by the witness that is unfavourable to the party (no hostility required, just that they would detract from your case DPP v McRae)

      2. Matters of which the witness is reasonably supposed to have knowledge and it appears to the court that they are not making a genuine attempt to answer about; or

      3. Whether they have made a prior inconsistent statement

   2. 38(2) Questioning under this section is take to be cross-examination. But must be ‘about’ the matters in (a) (b) or (c) R v Le

      • But R v Le suggests that the power can also extend to establishing the probability that the party’s stated facts occurred and the improbability of the witness’s evidence. To establish this a cross-examiner would be entitled to ask questions going solely to credibility

      • 38(3) With leave, the questioning may extend to matters relevant only to credibility (also note admissibility of credibility evidence under part 3.7)

   3. The ability to ask leading questions requires leave. Relevant to leave is:

      1. Whether notice of intention to seek leave was given at earliest opportunity

      2. The nature of likely questions from another party (If defence is unlikely to call that witness, the prosecution must call them even if they are to be unfavourable, more likely to get leave) DPP v McRae

      3. Ensuring the focus of trial does not switch to collateral matters R v Hogan; and

      4. The factors of s 192

         • the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

         • the extent to which to do so would be unfair to apartyor to a witness; and

         • the importance of the evidence in relation to which the leave, permission or direction is sought; and

         • the nature of the proceeding; and

         • the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

      5. The factors of s135: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might

         • be unfairly prejudicial to aparty; or

         • be misleading or confusing; or

         • cause or result in undue waste of time.

      6. The factors of 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

Cross-examination

Identify that a witness is being examined by a party who did not call them. If relevant, apply the following rules

1. Credit and character (see topic 6)

2. Leading questions

   1. 42(1) a party may put a leading question to a witness in cross-examination unless the court disallows it

   2. 42(2) In deciding whether to disallow it, court will look at the extent to which

      1. evidence that has been given by the witness in examination in chief is unfavourable to thepartywho called the witness; and

      2. the witness has an interest consistent with an interest of the cross-examiner; and

      3. the witness is sympathetic to thepartyconducting the cross-examination, either generally or about a particular matter; and

      4. the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.

   3. 42(3) Court is to disallow the question if satisfied that the facts concerned would be better ascertained without leading questions

3. Prior inconsistent statements

   1. Section 43 EA (1) a person may be cross-examined about a prior inconsistent statement whether or not a record or particulars of the statement are given to the witness

   2. 43(2) If a witness does not admit that they have made a prior inconsistent statement, the other party is not allowed to adduce contradictory evidence unless they have:

      1. Informed the witness so they can identify the statement; and

      2. Drawn the witness’ attention to so much of the statement as inconsistent with the witness’ evidence i.e. must give them a chance to respond

4. The rule in Browne v Dunne

   1. Where a party seeks to contract evidence given by a witness in chief, the party must put to the witness the substance of the contradictory evidence

      1. They must be given an opportunity to address the contradictory version of the evidence

      2. Otherwise the witness must be recalled MWJ v R

5. Improper questioning

   1. 41(1) A court may disallow improper questions

      • The court must disallow improper questioning put to a vulnerable witness in cross-examination (under 18, cognitively impaired, someone the court considers vulnerable 41(4)) unless satisfied that it is necessary 41(2)

   2. 42(3) Improper questioning is:

      1. Misleading or confusing

         • Compound questions: two questions at once Libke v R

      2. Unduly annoying, harassing, intimidating or offensive

         • Trying to get the accused to speak about something he has no knowledge on Picker v The Queen

      3. Insulting or belittling in tone; or

      4. Has no basis other than stereotype

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