Examination of witnesses Rules and procedures in the courtroom for eliciting (getting information) from witnesses Most evidence in our legal system is verbal. A person conveying their views and beliefs, in some circumstances it is done by documents but that is an exception. There are different stages of evidence. o Oath or affirmation o Evidence in chief information that the witness has that is relevant to the fact in issue in the case o Cross examination taken by the person who didn t call the witness objective is to undermine the persuasiveness of the evidence given in chief. By attacking the character of the person giving the evidence. AND/OR Undermining the content of the evidence given. o Re-examination to clarify any matters that were ambiguous or unclear from the cross examination. The aim of the process is to find the truth. The only required examination is the examination in chief. ss26-46 Evidence Act covers examination of a witness Evidence in chief 29 Manner and form of questioning witnesses and their responses (1) 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. (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. (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. Governed by s29 of the Evidence Act. Is in a question and answer style format. o To prevent the witness making inadmissible statements. o Try to limit the amount of time that the witness is on the box, focus on the issues in contention only. Get the witness to state name and occupation. Lawyer then directs the witness to discuss the events/facts in issue. When dealing with children and the mentally impaired they are not used to this form of question and answer style. When in a criminal case there will be a witness statement, sworn in front of a police officer, such a procedure can be undertaken by defence lawyers or lawyers in civil matters. Tends to lock in the witnesses, sets out their position, prevents changing mind. o In many cases however the drafting has been done by a police officer/lawyer and therefore the stories do not always match up.
Main prohibition in evidence in chief is that you cannot ask leading questions. o Question suggesting an answer o Or assumes a fact which the witness hasn t deposed to. Can ask leading questions as to: Introductory matters Formal matters i.e. name address Where the other side has no objection In relation into matters not in dispute When expert evidence is given 37 Leading questions (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; or (b) the question relates to a matter introductory to the witness's evidence; or (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; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised 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. (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. Note Leading question is defined in the Dictionary. Use of documents/statements by witnesses in examination in chief Fundamental starting point is that witnesses should give their evidence verbally However, given the length of time which it takes for a matter to be called in court there may be the opportunity to use documents/statements. s32 Evidence Act if you cannot recall the event without the document, and the document was written when the events were fresh in the witnesses memory and the document was found to be accurate when written. If a witness is reading their statement then the other side can look at the document, they don t need to tender the document as an exhibit Lam, Held 7 days between event and writing statement was held to be still fresh in memory.
32 Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that i. was written or made by the witness when the events recorded in it were fresh in his or her memory; or ii. was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. Where the witness is a police officer s33 Given more latitude to use documents Don t need to exhaust their memory, as other witnesses must do. They can launch into their statement straight away. However it must have been made at the time of or soon after the event. Also it needs to be signed and given to other side beforehand. 33 Evidence given by police officers (1) 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. (2) Evidence may not be so given unless (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 the person's Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. Note Paragraph (c) differs from the Commonwealth Act and New South Wales Act. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.
Witness using a document outside court to refresh memory s34 is permitted directly before entering the witness box. Doesn t have to be statement, can be another document i.e. newspaper article. But if they have done so must produce the document to the other side if it is requested. If they don t produce it then in some circumstances the court can refuse to listen to their evidence. 34 Attempts to revive memory out of court (1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding. (2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with. Spalding ACT 2009 Rarely will a court refuse to hear evidence from a witness because of failure to produce evidence to revive memory Especially if lost the document Or document is no longer in their control Unfavourable witnesses S38 A witness says something unexpected. If a parties own witness gives evidence that is unfavourable or shows that there is no genuine attempt to give evidence on a matter that they reasonably assume to know about, or in relation to which they have made a prior inconsistent statement. o Then you can cross-examine them about that matter. Only the subject matter you gained unfavourable evidence on. Unfavourable has been interpreted widely o Lazano claiming not to remember. o If they do remember and they give evidence, they must say something against not something neutral Hadgkis 2006 FC
38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account (a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and Note Paragraph (a) differs from the Commonwealth Act and New South Wales Act. (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be crossexamined under this section as any other witness if (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and (b) the party is a witness in the proceeding.
Cross examination Objective is to undermine the believability of the opponent s witness. o By attacking the credibility of their character o By showing that the account given is implausible. Rules for cross examination are less strict. o Can ask leading questions. Cross examination is quite often made up of leading questions. But there are limits o s41 a judge may disallow improper questions. e.g. questions that are misleading or confusing Questions that are annoying Questions that are offensive Humiliating Oppressive Harassing Repetitive Belittling Insulting Questions that have no basis other than a stereotype o S41(4) in relation to vulnerable witnesses the judge MUST disallow improper questions People under 18 People with intellectual disability People that have impairments in regards to educational levels or language skills. o In relation to other witnesses they MAY disallow improper questions. Cross-examination is conducted aggressively, however can be more effective if it is less aggressive. Situations were leading questions are not allowed in cross examination o S42 o leading questions shouldn t be asked where the witness is sympathetic to the cross examiner, where the witness has changed sides must treat as your own. o Where due to the witnesses age or mental disability it may affect their answers. Prior inconsistent statements Most effective tool of cross examination S43 witnesses can always be cross examined regarding prior inconsistent statements even if they are not told about the exact details of the inconsistent remarks. o All you need to do is say that there was at some point made contradictory statement o If the witness denies making the prior inconsistent statement then you cannot get evidence of that prior inconsistent statement from other people who heard it unless you particularise the prior inconsistent statement to the witness. Must be fair to them; give them a date/day/time when the supposed inconsistent statement was made.
Always need to directly challenge the witnesses account If in witness in chief says something you wish to dispute, you then need to tell that witness in cross examination that you are challenging their account, that you do not accept it. If you don t tell the witness that you are challenging what they are saying then you can be prevented from advancing the opposing position argument against what they are saying. The failure to challenge an observation by a witness will result in witness being able to be recalled later to elaborate on that evidence. o S46 - Brown v Dunne o Inherent concept of fairness that to contradict someone later on you need to tell them at that point in time so they can elaborate, qualify or explain. To introduce contrary evidence you need to tell witness you are in disagreement with their version of events. 46 Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and (a) it contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence. Re examination S39 happens at the end, undertaken by party who did examination in chief. It is not an opportunity to introduce new evidence re-establish the credibility of the witness. Is meant to clear up ambiguities, on matters that occurred during cross examination. Or to elaborate on answers, which if they were left as they stand would give a distorted account of what actually happened. If for example the witness gives evidence that they saw fight between A and B from distance of 20m and then under cross they were asked if there was a wall between the fight and persion, then on re-examination you could ask if the wall actually blocked view. 39 Limits on re-examination On re-examination (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave.
Exclusion of witnesses from the courtroom. As a general rule witnesses are only present in the court room when they testify. This rule was the basis of the appeal in the case R v Tait. R v Tait Facts Issue the accused appealed their conviction upon the basis that the trial judge had erred in allowing two expert psychiatric witnesses for the prosecution to sit in the court room whilst the expert psychiatrist for the accused was testifying There was a concern that they might have adjusted their testimony based on what they heard Held The trial judge allowed the prosecution psychiatrists to be present on the basis that the exclusion of witnesses is entirely a discretionary matter for the judge. On appeal the Victorian Supreme Court confirmed the matter was one of discretion for the trial judge alone. This position has been adopted under section 26 of the Evidence Act which provides that the court may make such orders as it considers just in relation to the presence and behaviour of any person in connection with the questioning of witnesses. 26 Court's control over questioning of witness The court may make such orders as it considers just in relation to (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses. The prosecution is also under an obligation to treat the accused fairly by seeking out the truth of the matters alleged. As a result the accused can successfully appeal a decision if they can demonstrate that the failure of the prosecution to call a witness has resulted in a miscarriage of justice. This is not common in an adversarial trial system.
Velevski v R This was the issue on appeal in Velevski V R. It is an interesting case that has parallels with other famous High court decisions where an accused has failed by a majority judgement to successfully appeal their conviction. In this case, Velevski V R there was a single dissenting judge, Justice Gaudron. The facts of this case are quite interesting. Velevski was convicted of 4 counts of murder. The victims were his 3 children and his wife. All 4 victims had their throats cut whilst at home and there were only 7 people in the house at the time of the murder. The prosecution argued that the husband Velevski had murdered the victims whilst the defence argued that the wife murdered the children after which she committed suicide. The prosecution called five expert witnesses who were qualified anatomic pathologists. Anatomic pathologists perform autopsies and analyse tissues taken from patients during surgery or by biopsy. The defence called a single anatomic pathologist. The crucial question was whether the wife had committed suicide. The experts gave conflicting testimony. 2 of the experts were of the opinion that the wound to the wife s neck revealed that she had committed suicide. The other 4 were of the opinion that the wound revealed that the wife was murdered. Despite the conflicting testimony the jury returned a guilty verdict at trial which means that they did not have a reasonable doubt. Velevski appealed his conviction and eventually made it to the High Court. In the High Court he argued that the prosecution failed to call further pathologists who were prepared to testify that the knife wound was self inflicted and that this resulted in a miscarriage of justice. The High Court held that there had been no miscarriage of justice. If they failure to call a witness does result in a miscarriage of justice the accused can appeal to have their conviction set aside. The decision to call a witness for the defence is exclusively determined by the defence. The trial judge does not have the power to call a witness for the defence.