This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Evidence Law Notes

Examination Of Witnesses Notes

Updated Examination Of Witnesses Notes

Evidence Law Notes

Evidence Law

Approximately 86 pages

Here you will find summarised evidence procedure law notes for the entire Monash University topic.

The summary notes are an excellent exam help, with steps to work through problems questions and summaries of cases. They are short enough for use in an exam, but detailed enough that you will never miss a point...

The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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...

Buy the full version of these notes or essay plans and more in our Evidence Law Notes.