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Law Notes Litigation 2 - Evidence Law Notes

Witnesses In Court And Questioning Notes

Updated Witnesses In Court And Questioning 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.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation 2 - Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Lit 2 4-7 Witnesses

Table of Contents

Lit 2 4-7 Witnesses 1

(1) IS A W GIVING EVIDENCE? COMPETENCE AND COMPELLABILITY 3

1. Competency 4

1.1 Law 4

1.2 Procedure for determining competency? 8

2. Compellability 9

2.1 Law 9

2.2 Procedure for compellability 11

(2) COURT’S POWERS FOR CONTROLLING QUESTIONING 11

(3) QUESTIONING OWN WITNESS 13

(4) DISCREDITING YOUR OWN WITNESS 19

(5) ACCREDITING OWN WITNESS: s 108 25

(6) CROSS-EXAMINATION 25

1. Is there a problem with the style of questioning in cross-examination? 26

(a) Leading question: s 42 26

(b) Improper questions: s 41 27

2. Ambit of cross-examination? 28

3. Cross-examination on credibility 30

(a) Fundamentals on credibility: 30

(b) Testing credibility of witness in cross-examination – via questioning about evidence that satisfies s 103 – (and if D in crimp roc then s 104) 31

(c) Finality principle (pursuing credibility issues beyond XE) see s 106; Aslett ; Copmanhurst 36

Bias or motive for being untruthful exception: s 106(2)(a): R v Abebe v Mulugeta: Nicholls: Marsden (No 1) and Marsden (no 2) 37

Convicted of an offence? S 106(2)(b) 38

Prior inconsistent statement: s 106(2)(c): Copmanhurst. 38

S 106(2)(d) Is or was unable to be aware of matters to which W’s evidence relates: Souleyman; Farrell 41

S 106(2)(e) Perjury – W knowingly/recklessly made false representation while under legal obligation to tell the truth. 41

4. Cross-examination on inconsistent statement made by someone else: s 44 42

5. Rule in Browne v Dunn met? S 46; Khamis 43

(7) PROHIBITION ON ACCREDITING YOUR OWN WITNESS 47

(8) RE‐EXAMINATION OF PARTY’S OWN WITNESS 50

(9) REOPENING THE PROSECUTION CASE 51

(10) CREDIBILITY OF NON‐WITNESSES WHO’VE MADE A PREVREP 53

(11) CREDIBILITY OF ACCUSED WHO DOESN’T WITNESS BUT HAS A PrevREP. 53

(12) EVIDENCE GIVEN BY EXPERT ABOUT CREDIBILITY OF A W: s 108C 54

Checklist:

  1. A W is giving evidence?

    1. (See notes on competence/ compellability)

  2. Court’s powers: court has inherent power to control conduct of proceedings: s 11, and 26.

  3. Questioning own witness?

    1. Procedure for questioning

    2. How to question own witness:

    3. What if there is a problem with your witness?

    4. To credit your witness

    5. Discredit your own witness

  4. Cross-examination

    1. How to cross-examine: Leading questions

    2. Improper questioning

    3. Ambit of questioning

    4. Credibility

  5. Re-examination

    1. Finality principle

    2. Browne v Dunn

(2) COURT’S POWERS FOR CONTROLLING QUESTIONING

  • 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 witneses and questioning issues:

      1. S 38 – unfavourable witneses

      2. S 32 – use of docs to revive meory in court

      3. S 43 – cross-examination about a prior inconsistent statement

  • 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 witness 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 witness.

(3) QUESTIONING OWN WITNESS

Checklist

  1. Questioning own witness?

    1. How to question own witness:

      1. No leading questions – unless leave

      2. Can refresh memory?

    2. Credibility

      1. Cannot ask questions sole impact of which is to enhance or impeach credibility of own witness

    3. When unfavourable

      1. Think about asking leading questions or refreshing memory first?

      2. Then cross-examine

    4. What if failed to call material witness?
Readings

  • ss 29, 32, 37, 21.1‐ 21.17

  • 21.26; 21.29‐21.30

  • SM: ss102, 103 (p.33)

Questioning own witness: ss 29, 32, 38, 21.1-21.17. 21.26; 21.29-30; SM ss 102, 103 (p 33)

  1. Examination in chief is normally first: unless court otherwise orders: (1) examination in chief of witness (2) cross-examination and (3) re-examination of witness after all parties cross-examine witness: s 28

  2. 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

  3. If witness has trouble:

    1. Can be in narrative form? S 29(2)

    2. Can ask a leading question if comply with s 37(1): eg Can seek leave to ask leading q: s 37(1)(a)

    3. Witnesses can revive memory: s 32

    4. Unfavorable witnesses can be cross-examined: s 38
(b) how to question own witness

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)

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,...

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