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Witness Questioning Process Notes

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Lit 7 Witness Questioning Process

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Questioning witnesses (without credibility notes)

Courts powers Court Court's powers: court has inherent power to control conduct of proceedings: s s 11, and 26. Under s 26 the court can make orders 'as it considers just' in relation power to s (a) way in which witnesses are to be questioned; and (b) production and use of documents and things in connection with questioning of witneses; (c) order in which parties may question witnesses and (d) presence and behavior of any person in connection with the questioning of witnesses.. Scope of s 26:

1. S 26 only applies during hearings: Finchill

2. S 26 is subject to other provisions that deal with specific W and questioning issues: S 38 - unfavourable Ws S 32 - use of docs to revive memory in court S 43 - crossexamination about a prior inconsistent statement The Status quo for asking questions: 28 Order of examination in chief, cross
order examination and reexamination. Unless the court otherwise directs: (a) cross
for examination of a W is not to take place before the examination in chief of the questi witness, and (b) reexamination of a witness is not to take place before all other ons parties who wish to do so have crossexamined the Ws. Examination in chief How to question own witnesses: a) Any way you see fit: s 29. b) Note special rules for police officers: s 33 c) Cannot ask leading questions in examination in chief or in re
examination: s 37 d) Can get leave to ask leading questions: s 37(1) e) Cannot discredit own W - can adduce PCS under s 108(3) see credibility notes. (a) Any way you see fit: under s 29

* General rule: A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court: s 29(1) EA

* Can give it in narrative form: s 29(2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form. (3) Such a direction may include directions about the way in which evidence is to be given in that form: s 29(3)

* Can give charts/explanatory material: (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given: s 29(4) (b) Note special rules for police officers: s 33

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*

(c) prohibition on leading questions

Rule: Despite section 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 the police officer: s 33(1). "police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer: s 33(3).

* Evidence may not be so given unless compliance with three requirements in s 33(2) (a) 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 (b) the police officer signed the statement when it was made, and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (iii) Central prohibition: cannot ask leading questions

* what is a leading question

* Prohibition on leading questions

* Procedure for leading questions What is a leading question

* Definition of leading question: leading question means a question asked of a witness that:

* (a) directly or indirectly suggests a particular answer to that question; or o 'it's correct, isn't it...' or '... didn't it?'

* (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 asked: EA Dictionary o 'how upset were you by what you saw

* Just because someone elicit sa yes or no response doesn't mean it's a leading question: R v Sauners Prohibition on leading questions by s 37(1): A leading question must not be put to a witness in examination in chief or in reexamination unless: (a) the court gives leave: s 37(1)(a) (b) the question relates to a matter introductory to the witness's evidence: s 37(1)(b) (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or reexamination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor: s 37(1)(c) (d) the question relates to a matter that is not in dispute: s 37(1)(d) (e) if the witness has specialized knowledge based on the witness's training, study or experiencethe question is asked for the purpose of obtaining the witness's opinion about a hypothetical

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statement of facts, being facts in respect of which evidence has been, or is intended to be, given: s 37(1)(e) (2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties. (3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker. Procedure

* It is presumed that opposing party will keep in check counsel who improperly leads his or her own witness: s 37(1)(c) EA

* Where there are no objections to leading questions a trial judge will be obliged o prevent leading questions where interests of justice so require: Varney

* Although answers to unauthorized leading questions are admissible weight of answers given will be affected: Ireland v Taylor

(d) when leave can be given to ask improper questions: s 37(1)(a)

Under s 37(1)(a)

*

*

Leave can be granted for a party to ask leading questions in XXE or REX: : s 37(1)(a) Under s 192 leave may be granted on such terms as the court thinks fit: s 192(1), after taking into account 5 mandatory factors and whatever else is relevant including: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) 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.

Cl guidance for when to bypass prohibition: see eg Maves v Grand Trunk

* Rule: Leading is relative not absolute: Maves . Question is objectionable as leading when it suggests the answer not when it directs the attention of the witness to the subject respecting which he is questioned: Maves

* CL exceptions that may influence the granting of leave include: o Where witness has inability to answer questions put in regular way from a defective memory: Maves o When subject matter is complicated: Maves o For purpose of identifying things or people: Maves o Asking W1 on whether W2 has used certain expression: Maves

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o Where witness is unlikely to be vulnerable to suggestive questions, where topic of questioning is noncontentious and where circumstances dictate that expediency should override the mere norm of fairness: Gordon v Caroll; Mooney v James; Ex parte Bottomley XIC > When W is not giving evidence well consider: s 37(1)(a); s 32; s 29(2), call other W, s 38 Options are: i. Can ask a leading question if comply with s 37(1): eg Can seek leave to ask leading q: s 37(1)(a) ii. Can be in narrative form? S 29(2) iii. Witnesses can revive memory if leave given: s 32 - can also get leave to read out doc ( s 32(3)). If requested court must give doc to party: s 32(4). iv. Note that you can call a witness to give contradictory version of events to earlier witness: Welden v. Unfavorable witnesses can be crossexamined : s 38 (Factors to consider: s 38(6); s 192(2); ss 135 and 137 (Le; Fowler); and whether there has been an unfair use of s 38 (Mansour)). (i) see above (i) Leading questions
(ii) (ii) Narrative form? S 29(2) (iii) reviving iii) Revive memory? S 32 - A W can use doc to try to revive memory memory about a fact or opinion if court gives leave: s 32(1) and can read out doc if leave given under s 32(3)

* Mandatory factors to take into account under s 32(2) (must also consider s 192(2) factors): Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document: s 32(2)(a) AND (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory: s 32(2) (b)(i) (ii) was, at such a time, found by the witness to be accurate: s 32(2)(b)(ii) Req 1#: Consider s 32(2)(a) Req 2#: Consider s 32(2)(b)(i): 'Freshness of memory' at time of making note: Singh

* No arbitrary time limit fixed: R v Singh

* However 'freshness' while more flexible than contemporaneity still incorporates temporal considerations: Van Beelen

* Note Graham - although the HCA in Graham considered 'freshenss of memory' in the context of s 66 hearsay rules, in R v Adam this ws suggested as not intended to confine 'freshness' stircitly in terms of mere hours or days. Also, freshness in s 32 is

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*

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only a condition to granting leave to witeness to refresh memory, not a condition precedent to admission of evidence under s 66. Example: statement made 7 weeks after event not outside period of fresh memory: R v Adam (Wood CJ)

Req 3#: Consider s 32(2)(b)(ii) - found to be accurate?
Req 4#: Consider s 192 Under s 192 leave may be granted on such terms as the court thinks fit: s 192(1), after taking into account 5 mandatory factors and whatever else is relevant including:

* Lengthen proceeding? extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing: s 192(2)(a)

* Unfair to any party/witness? : s 192(2)(b)

* Importance of evidence? the importance of the evidence in relation to which the leave, permission or direction is sought: s 192(c)

* Nature of proceeding? S 192(d)

* Power of court to adjourn/make another direction: 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: s 192(e) Issue 5#: Whether to also grant leave to read doc out:

* Can read it out if leave given under s 32(3) and s 192(2) is complied with: (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion: s 32(3). Court must take into account

(iv) can call another witness

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Issue 6#: must Produce doc on request:

* Can on request of party direct that doc used to revive memory is produced to that party: The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party: s 32(4). As this is a power to give a direction, s 192 is engaged.

* Rationale in R v Alexander and Taylor - impossible to properly assess value of evidence or test in crossexamination without reference to original record.

* Other notes: irrelevant parts can be covered with tape: R v Bass. (iv) Can call witness to give contradictory version of events to earlier one.

* Pre s 101A Can call a witness who gives contradictory version of events to the earlier witness: R v Welden

* Example: prior inconsistent statement by a defendant: Vocisano v Vocisano (two brothers, D said in statement that P was driving, but then P later sued D and D claimed under his insurance policy, D at trial changed story and said that D was driving. The PIS was adduced to prove the truth of its contents and contradicted the D's testimony on a fact in issue. It additionally impeached the

Lit 7 Witness Questioning Process

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(v) cross
examine unfavourable witness: s 38

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D's credit but this was insufficient to attract prohibition against crediting one's own witness)

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(v) s 38 XXM of unfavourable witnesses (s 38(6), 192(2), 135, 137, unfair use) Rule

Rule: Party may seek leave to crossexamine own witness under s 38(1): A party who called a witness may, with the leave of the court, question the witness, as though the party were crossexamining the witness, about:

* Unfavourable evidence: Evidence given by the witness that is unfavourable to the party: s 38(1)(a) see below Souleyman; Adams case or

* No genuine attempt to give evidence: A matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence: s 38(1)(b) or

* PIS: whether the W has, at any time, made a p inconsistent statement: s 38(1)(c) Can with leave XE only on 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: s 38(3) (see part 3.7)

* Note: Questioning a witness under this section is taken to be cross
examination for the purposes of this Act (other than section 39): s 38(2) A party is subject to the same liability to be crossexamined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding.

* XE before other XE the witness: Questioning under this section is to take place before the other parties crossexamine the witness, unless the court otherwise directs: s 38(4)

* Order to question witness is as court directs: If the court so directs, the order in which the parties question the witness is to be as the court directs: s 38(5)

The three grounds for s 38(1) leave and XXM "Unfavourable" in s 38(1)(a) (case Lozano) "UNFAVOURABLE" in s 38(1)(a) (case Lozano)

* Unfavorable means not favourable, not propitious, disadvantageous, adverse: Souleyman; Lozano (Not necessarily hostile).

* Evidence can be unfavourable: If it constitutes only part of witness' generally favourable testimony: R v Pantoja

* Examples: o Where witness has had a chance to refresh memory from record, but genuinely cannot recall events, then evidence is not favourable and s 38(1)(a) is the appropriate basis upon which to grant leave: Lozano o Where prior statement and witness does not come up to that: Souleyman

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