#8543 - Witnesses In Court And Questioning - Litigation 2

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

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:

A W is giving evidence?
1. (See notes on competence/ compellability)
Court’s powers: court has inherent power to control conduct of proceedings: s 11, and 26.
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
Cross-examination
1. How to cross-examine: Leading questions
2. Improper questioning
3. Ambit of questioning
4. Credibility
Re-examination
1. Finality principle
2. Browne v Dunn

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.

Checklist

	Questioning own witness? How to question own witness: No leading questions – unless leave Can refresh memory? Credibility Cannot ask questions sole impact of which is to enhance or impeach credibility of own witness When unfavourable Think about asking leading questions or refreshing memory first? Then cross-examine 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?
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) 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 How to question own witnesses: Any way you see fit: s 29. Note special rules for police officers: s 33 Cannot ask leading questions in examination in chief or in re-examination: s 37 If witness has trouble: Can be in narrative form? S 29(2) Can ask a leading question if comply with s 37(1): eg Can seek leave to ask leading q: s 37(1)(a) Witnesses can revive memory: s 32 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, 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 ‘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 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. 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...

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

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
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
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, 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
- ‘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 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.

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...

#8543 - Witnesses In Court And Questioning - Litigation 2 - Evidence Law

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