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Law Notes Litigation 2 - Evidence Law Notes

Witness Questioning Process Notes

Updated Witness Questioning Process Notes

Litigation 2 - Evidence Law Notes

Litigation 2 - Evidence Law

Approximately 259 pages

These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.

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Questioning witnesses (without credibility notes)

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

Courts powers

Court’s powers: court has inherent power to control conduct of proceedings: s 11, and 26. Under s 26 the court can make orders ‘as it considers just’ in relation to
(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 – cross-examination about a prior inconsistent statement
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.

Examination in chief

How to question own witnesses:

  1. Any way you see fit: s 29.

  2. Note special rules for police officers: s 33

  3. Cannot ask leading questions in examination in chief or in re-examination: s 37

  4. Can get leave to ask leading questions: s 37(1)

  5. 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

  • 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

    • ‘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

    • ‘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 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...

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