Evidence Cross Examination PDF

Preview

Summary

Evidence LLAW3223 Basics Lecture Notes for Exam...

Description

EXAMINATION OF THE WITNESS o o

o

o

Courts favour direct, oral evidence based on a witness’ first-hand knowledge Witness normally restricted to what they themselves actually perceived (saw, heard, smelt, tasted or touched) Do not want witnesses to repeat statements said to them by another person (hearsay) because this cannot be cross examined on Do not want witnesses to make assumptions, provide their personal opinion or arrive to conclusions themselves – this is the job of the trier of fact

GENERAL PRINCIPLES Preliminary matters  Can give evidence in language other than English (s14 SA; s30 UEA)  Order of calling witnesses (solely for Counsel)  Witnesses to be out of Court until called: so can give unbiased evidence  Discretion of Crown to call witnesses (Apostilides – force crown to call but rare)  New protections for “vulnerable” witnesses o Who can ask the Witness questions?: Counsel and opposing counsel in XXN (judge/jury can to clarify but very carefully) o Witnesses testify from memory o Can proof but cannot coach witnesses: can have practice run (proof), but cannot put words or ideas into their head or how to answer

o

EXAMINATION IN CHIEF (XIC)

What type of questions?  Question and answer style and part narrative  Must be non-leading questions: these are answer is not suggested in question, not open question. Can be direct and specific  “Only facts in issue should be lead in Chief. A witness may not lift himself by his own bootstraps to enhance his credit” (R v Connolly [1991] 2 Qd R 171): only give evidence witness does need to prove their evidence  So only questions relevant to the issues  Cannot generally in XIC lead evidence to prove they have said it consistently before (“prior consistent statement”) (Hickman v The Queen (1993) 60 SASR 415) or should be believed because they are of good character (R v Murphy (1985) 4 NSWLR 42) or are reliable (R v Robinson [1994] 3 All ER 346)

Credibility evidence  Common law: R v Connelly (previous slide)  UEA: s102 says “Credibility evidence about a witness is not admissible” subject to 5 exceptions: o Evidence adduced in XXN (s103 & s104) in XXN you test credibility but not in XIC; o Evidence in rebuttal of denials (s106); o Evidence to re-establish credibility (s108) can’t start until re-XN; o Evidence of persons with specialized knowledge (s108C); o Character of accused persons (s110) Prior Consistent Statements of Witnesses  Not generally allowed  Exceptions for rebutting allegations of recent invention (in re-examination, not repeating it for sake of, there is a reason to prove), prior statements of ID of the accused (when properly id them), res gestae evidence & complaints in sexual cases (how allegation come to light and consistency of case) o Sexual cases: Longman delay warning abolished via s34CB & now need significant forensic disadvantage (memory); o Kilby & Crofts abolished via s34M no negative inference re delay & there to show how allegation came to light and consistency of victim’s conduct Form of questioning?  Non-leading questions only  E.g. Not in a form which suggests/invites the answer in the question OR assumes a fact yet to be established by the evidence  Examples?  Exceptions when you can lead your witness (common law and s37 UEA): o Formal matters/background, eg name, occupation o Directing a witness to a topic o If not objected to or Court gives leave o Undisputed matters o Expert witnesses o If a witness is formally declared a “hostile witness” XIC IN PRACTICE o o o

How, what, when, where, why questions If your question calls for a “yes” or “no” answer, it will be leading! Can be general or specific questions but must always be relevant to the facts in issue



o o

Eg always ask yourself WHY you are asking that Let the witness get the story out, rather than it coming out through the lawyer Pretend you do not know the answer!

o o

o

REFRESHING MEMORY Generally a witness gives evidence from memory  But issues re delays in trials, police, etc means some witnesses do not remember all the specific details  Courts allow a witness to “refresh their memory” in certain circumstances (see also s32 & s33 Police UEA): o Out of Court before trial – Yes generally o In Court with document, which revives memory – Yes, so long as you follow set procedure, eg cannot just read out loud the document as evidence but can read it (to yourself) to “refresh” your memory and then continue your oral evidence o In Court with document, which does not revive memory – Yes, so long as you confirm the document’s accuracy and it is in Court with you, in which case you read it out and that is your evidence  Procedure (R v Van Beelan (1972) 6 SASR 534) o Witness needs to use document, eg exhausted memory o Has original document available (or a copy) o Document was made or verified by the witness o Facts were still fresh in witness’ memory when document made/verified o Document records the facts substantially and accurately  Need leave of the Court, can be objected to by opposition (especially if procedure not followed), opposition generally inspects document first. Once allowed, the witness can refer to it constantly when giving evidence  Document is not tendered as evidence unless opposition XXNs beyond those areas used to revive memory, in which case document can be tendered in evidence for the truth of its contents (Walker v Walker) (may be abolished in UEA s35) Hostile & Unfavourable witnesses  Difference between a witness who “fails to come up to proof” and a witness who is “deliberately withholding material evidence” or unwilling to tell the whole truth  Apply to the Court to be declared “hostile”:

If just unfavourable, not much you can do (although lower bar in s38 UEA) If declared “hostile”, you can treat them like XXN, eg leading questions & can XXN on issue and credit “Whether a witness should be regarded as hostile may be assessed by reference, among other things, to a prior inconsistent statement, the witness’ demeanour, his or her conduct in the witness box, the answers he or she gives to non-leading questions and his or her choice of language.” (R v Mullins)

CROSS EXAMINATION (XXN) o Why are witnesses cross examined?  The fundamental way to “test” the evidence  Not to be restricted unless absolutely necessary, eg new “vulnerable” witness legislation o Two objectives:  Want to obtain additional evidence relevant to the issues (eg establish your own case by means of your opponent’s witnesses) (Issue XXN); &/or  Obtain evidence relevant to determining the witness’ credibility (weaken, qualify or destroy your opponent’s case) (Credit XXN) o Types of Cross Examination:  Issue Cross Examination  Credit Cross Examination (limited via ethics (need a basis) and the Finality/Collateral Rule)

CREDIBILITY What is a witness’ credibility?  There are 4 possible weakness in all human testimony: narration, sincerity, observation and memory  Eg their credibility (eg whether to believe them) relates to the language he/she uses to report observations; their honesty and sincerity; the accuracy of his/her observations and the accuracy of the witness’ memory of the observation (in & out)  Thus, these can all be “tested” under XXN so that the trier of fact can decide whether to believe them. They may be honest, but have a bad recall. They may be sincere, but sensationalising or making incorrect assumptions

 UEA s103(1) “the credibility rule does not apply to evidence adduced in XXN of a witness if the evidence could substantially affect the assessment of the credibility of the witness.” XXN IN PRACTICE o Now mostly leading questions! o “Don’t ask a question if you don’t know the answer” o Why are you asking the witness this question? o Information gathering to strengthen your own case; o Putting suggestions, propositions or alternatives to the witness (but cannot suggest something you know is incorrect or false) o Testing their honesty & sincerity, language used, accuracy of observations & memory o Need to put your case to them (rule in Browne & Dunn) o Pretend you know all the answers! The Rule in Browne v Dunn o “Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness … as a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness does not speak the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have an opportunity of explanation” (Reid v Kerr (1974) 9 SASR 367) o Applies equally to a challenge to the witness’ version of events and an attack on their credit o Eg put your case to your opponents when XXNing (as much as that witness can testify to) o If not done completely, adequately or correctly, consequences include (at judge’s discretion):  Recall the witness to put your case to them  Jury can be advised that they can take the failure to XXN a witness on that subject into account in relation to a witness’ credit in determining which party’s evidence to be accepted  Judge can decline to allow the defaulting party to address a subject not cross examined on  Cross examiner could be precluded from calling evidence on the subject



Criticism on appeal (including “Incompetence of Counsel”) and a new trial ordered

Finality/Collateral Rule  Generally you are bound by answers in XXN to questions relating to collateral matters going solely to a witness’ credit, eg you cannot pursue credit beyond XXN by further evidence to prove they are lying, wrong, mistaken etc  5 common law exceptions:o Prior convictions of a witness (esp if relevant) (s26 EA); o Bias, partiality or interest of the witness; o Prior inconsistent statements of a witness (s28-29 EA); o The witness’ general bad character; and/or o The physical or mental unreliability/capacity of a witness

RE-EXAMINATION (REXN) o Second Chance at XIC? o A court may permit re-examination to explain ambiguities or uncertainties and to adduce information which explains or qualifies matters arising out of XXN (R v Lavery (No 2)(1979) 20 SASR 430) o Must still be non-leading questions o Must arise out of XXN o To clear up ambiguities, complete an answer, tell a whole story or re-establish credit Re-Opening & Rebuttal o Prosecution should present its case completely from the start and not “split” its case (or “reopen” it) by calling evidence in reply to defense where they could have anticipated the defense case (R v Chin (1985) 157 CLR 671) o Exceptions (Reid v Kerr):  Evidence relating to a purely formal matter;  Evidence relating to a material point which the adducing party was unable to foresee as relevant;  “fresh” evidence that was unavailable to be adduced during XIC o This rule not applied so strictly in civil matters

Failure to Call Evidence

Civil matters:  Can make an adverse inference that if a party fails to call evidence without explanation (where such evidence would reasonably have been expected to be called) then the uncalled evidence would not have assisted the party’s case: Jones & Dunkel (1959) 101 CLR 298  Relates to a witness not called at all or if a witness is not questioned on particular topics Criminal matters:  Can make the same inferences but not against the defendant (Dyers v The Queen (2002) 210 CLR 285) due to their right to silence, innocence until proven guilty and standards of proof  Rare exception if the DPP case is weak because the defendant is the only one with personal knowledge of what happened & remains silent: Weissensteiner & Azzopardi ¢ Even then, cannot use it the same way as in Civil matters. Can only use it to explain the weakness of the DPP case, not to make adverse inferences of the defendant’s guilt due to this SUMMARY NOTES- XIC - Parties are entitled to call any witnesses. - Exception: Prosecution is not entitled to call an accused or their spouses - Witness are: Examined in chief by the party calling them; and cross-examined by other parties; and re-examined by the party calling them, with the courts permission to resolve matters arising during cross examination - Chin’s Case: parties call all their evidence together (cant split the case) Witness is expected to testify orally from memory. Out of court refreshment memory - Witnesses can refresh their memories before testifying (by proofing or reading statements/materials) - Oral testimony remains admissible whatever the nature of the documents used to revive memory out of court o R v Richardson; The documents used need not be made contemporaneously with the events observed. - Common law UEA s 34(1): cross examining counsel can call for any document used to

revive memory out of court (note: such documents are not automatically admissible. The rules for their tender are the same as for docs used to refresh memory in court o Collton v Correl: failure to produce it only affects the witness’s credit, not admissibility of the testimony o S 34(2) UEA: where a witness fails to produce ,material used to revive memory (without reasonable excuse, the court may refuse to admit the testimony) o It is up to the opponent to discover any out of court refreshment

In court refreshment - Common law; s 32(1) UEA: A witness must not refer to a document while testifying to refresh memory, unless the court gives permission. - Two requirements for permission: o The witness must have no accurate recollection of the events (Hetherington v Brooks) and o The document must have been adopted by them at a time when the events where fresh in memory (R v Van Beelen) -Factirs of freshness: length of time since the event, what happened in between, uniqueness of event - S 32(3) UEA; Hetherington v Brooks: The witness can only refer to the document as an aide memoire, and will only be allowed to read it to court if there is no revival of memory at all - S 33(3) UEA: A police officer may give evidence in chief by reading a written statement previously ONLY if the statement was made soon after events, signed the statement when it was made and a copy of statement was given to accused in reasonable time of hearing - R v Van Beelen o Pathologist M sought permission to refresh his memory from typed notes o Doc 1: M indicated his observations, C wrote it in his notebook and repeated outload to M o Doc 2: After each day C made a typed version of what he wrote in his notebook. These were checked by C & M next day o Doc 3: Later C prepared a revised version of notes in diff order

o

o

o

o

o

The doc used to refresh memory must have been made or verified by witness In ‘verifying’ the doc, the witness must have had personal knowledge of its contents Doc 1: was read aloud to M (verified) while subject fresh in mind = can be used to refresh memory Doc 2: checked next day (verified) while subject not fresh in his mind = could not be used to refresh memory If doc 3 had been a copy of doc 1,2 then doc 3 could

Admissibility of the document can be for purpose of credibility or hearsay - Where witness is permitted to testify using document (including where memory is not revived) the oral testimony is the admissible evidence and the document is not admitted into evidence (bc it is hearsay) - The opponent is entitled to see document to refresh memory after examination in chief and cross examine on it Situations when document can be admissible: CROSS EXAMINEATION TO ESTABLISH PRIOR INCONCSISTENT STATEMENT IN DOCUMENT - S 28-9 SAEA: If opponent finds an inconsistency between document & witness testimony and in XXN – opponent may tender inconsistent statement if witness denies inconsistent. - The opponent may only use inconsistency to discredit witness only – cannot be used as hearsay - Cth: s 102, 103, 43, 106(c), 60 PRIOR CONSISTENT STATEMENTS OF WITNESS SA General rule = prior consistent statements are inadmissible (because they are only relevant to a witness’s credit) Exceptions = 1. A party may adduce credibility evidence in cross-examination 2. There are common law exceptions to the hearsay rule which can admit a witness’s prior statement 3. There are 3 situations where the admissibility of a prior Cth -

S 102 UEA: evidence relevant only to a witness’s credibility is inadmissible

-

So generally parties calling a witness cannot adduce the witness’s prior statements to support the witness’s credit.

Exceptions: 1) S 103 UEA permits a party to adduce credibility evidence in XN if the evidence has substantial probative value 2) S 64 or 66 UEA: admits as first hand hearsay a witness prior statement if made when the asserted facts observed by witness were fresh in the witness’s memory. S 102 does not prevent this prior statement from also being used to support the witness’s credit (Adam v R) 3) According to Adam v R: evidence of prior statement is relevant to the facts in issue via the witness’s credit (s55) so it is admissible unless excluded by the act (s56(1). So s 102 does not exclude it beacsue the statement contains assertations relevant (not only to credibility) but also to establishing facts in issue. So evidence is admissible as to credit. S 60 allows it to be used as firsthand hearsay 4) See situations below 1.) Prior statements tendered to rebut an allegation of recent invention (reexamination) SA -

-

-

Nominal Defendant v Clements: where an opponent in XNN alleges that a witness has invented his testimony, as a consequence of a particular event or for a particular reason then the party calling the witness can in reexamination adduce evidence of a statement consistent with his testimony (which he made prior to that event occurring or reason arising) in order to rebut allegation/ suggestion of recent invention Evidence admitted for purpose of reinforcing credibility only Cross examiners allegation of recent invention can be made independently of any supporting evidence Nominal Defendant v Clements: (consistent statement before the suggested cause of the invention arose = admissible for purpose of credibility) o P1 sued DEF for driving into him. Def XNN P1 to show P1 account of accident was result of coaching by his father just before trial (4 years after the accident)= suggest that P1’s account of the accident was recently invented

o

To Rebut suggestion, P1 tendered police statement obtained from P1 just 2 months after the accident (ie.before the father could have coached P1) which was consistent

with P1’s account. The consistent statement was made to the police before any opportunity for arose = it could logically rebut suggestion of recent invention CTH: S108(3)(b) UEA: the credibility rule does not apply to evidence prior consistent statement of a witness’s evidence has been fabricated - The prior consistent statement can be admitted to support credibility. S 60 UEA once the evidence is admitted for purpose of reinforcing credibility, it can be also used as hearsay (only firsthand hearsay R v Lee) – similar to SA except goes 1 step further 2.) Prior statements of identification (XIC) - Where a witness needs to identify ACC as the person seen at crime, the identification must be done in court in front of the trier of fact. - To make it possible to assess the reliability of the in court identification, the witness should refer to prior recognitions/identifications & their circumstances. SA -...