Questioning witnesses (without credibility notes) 1
Courts powers 1
Examination in chief 2
XIC > When W is not giving evidence well consider: s 37(1)(a); s 32; s 29(2), call other W, s 38 4
(v) s 38 XXM of unfavourable witnesses (s 38(6), 192(2), 135, 137, unfair use) 7
The three grounds for s 38(1) leave and XXM 7
“Unfavourable” in s 38(1)(a) (case Lozano) 7
Reasonable knowledge, no genuine attempt to give evidence: s 38(1)(b); Lozano; Adam 8
PIS: S 38(1)(c); Adam; Saunders 8
Factors to take into account: s 38(6); 192(2); 135, 137, unfair use 10
What court can grant – leave to XXM on s 38(1)(a)-(c) 11
When the XXM of own W happens: s 38 (4) – can use leading questions subject to ss 41/42 12
Cross-examination limits 12
1. Limitations on the style of questioning in cross-examination? 12
(a) Leading question: s 42 12
(b) Improper questions: s 41 – court must disallow if disallowable 13
2. Ambit of cross-examination? Wide: Wakeley; 14
3. Rule in Browne v Dunn met? S 46; Khamis 15
4. XXM of a W about a previous rep made by someone else?: s 44 18
5. XXM of a W about prior inconsistent statement of W? s 43 (s 45 applies) 19
6. Go to CE notes on XXM on credibility of own W 19
Re-examination of party’s own W – only on matters arising out of XE: s 39 19
Reopening the Prosecution case: s 43(3) for PIS 20
Appendix: 22
Courts powers
| The order for questions | Status quo for asking questions: 28 Order of examination in chief, cross-examination and re-examination. Unless the court otherwise directs: (a) cross-examination of a W is not to take place before the examination in chief of the witness, and (b) re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the Ws. |
| (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 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. |
| (c) prohibition on leading questions | (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 -
(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 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 re-examination 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 re-examination) 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 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: 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: Where witness has inability to answer questions put in regular way from a defective memory: Maves When subject matter is complicated: Maves For purpose of identifying things or people: Maves Asking W1 on whether W2 has used certain expression: Maves Where witness is unlikely to be vulnerable to suggestive questions, where topic of questioning is non-contentious and where circumstances dictate that expediency should override the mere norm of fairness: Gordon v Caroll; Mooney v James; Ex parte Bottomley |
| (i) see above | (i) Leading questions - |
| (ii) | (ii) Narrative form? S 29(2) |
| (iii) reviving memory | iii) Revive memory? S 32 – A...
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