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41 Cards in this Set
- Front
- Back
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Before a person is served with a summons to appear in court, verification must be made as to what? |
What type of witness they will be (and) Whether they: - are aloud to give evidence - are required to give evidence - can refuse to give evidence |
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What is the general rule of eligibility and compellability? S71 Evidence Act 2006 |
S71(1) In civil or criminal proceedings
a) any person is eligible to give evidence (and)
b) a person who is eligible to give evidence is compellable to give that evidence. (Exceptions are found in S72 - 75) |
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When is a person eligible to give evidence? When is a person compellable to give evidence? |
A witness is eligible to give evidence if they are lawfully able to give evidence (on behalf of the prosecution or defence) A witness is compellable if they are required to give evidence against their will. Once they are sworn in the box, they are under a compellable obligation to answer all questions put to them. |
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Can witnesses be excused from testifying or answering certain questions? |
The judge can excuse a witness from giving evidence due to "just cause"
Witnesses can be excused from answering certain questions because of privilege |
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Is a judge eligible to give evidence? Is a juror eligible to give evidence? |
A judge in proceedings is not eligible to give evidence. A juror is not eligible to give evidence unless given permission from the judge. In that case they will step down as a juror. |
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Section 73 relates to the compellability of defendants and associated defendants.
What is the compatibility of a defendant as a witness?
What is the compatibility of a co-defendant as a witness? |
A defendant is an eligible but not a compellable witness for the prosecution or defence.
A co-defendant is not compellable to give evidence against a defendant unless: - the co-defendant is being tried separately or - proceedings against the co-defendant have been determined.
Determined = withdrawn, dismissed, acquitted, convicted, sentenced etc. |
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What is an associated defendant? |
Someone being prosecuted for
- an offence arising from the same events that the defendant is being prosecuted (or) - an offence that relates to the offence for which the defendant is being prosecuted. |
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Even when a witness is compellable to give evidence, they may refuse or be prevented from answering particular questions on the grounds of "privilege".
What is a "privilege" in relation to giving evidence? |
The right to refuse to disclose, or to prevent disclosure of information that would otherwise be admissible. |
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Name 8 types of privilege? |
- Communications with legal advisors. - Solicitor trust accounts - Preparation materials for proceedings - Settlement negotiations or mediation - Communications with Ministers of Religion - Information obtained by medical practitioners and clinical psychologists - Privelege against self incrimination - Informer Privilege |
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S53 effect and protection of privilege.
A person who has privilege in proceedings, in respect of communication or information has the right to refuse to disclose what? |
- The Communication - The information or the information contained with in the communication - Any opinion formed, based on the communication or information. |
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What is Legal professional privilege |
Communication between a person and his legal adviser when obtaining legal services is privilege. S54.
Communication between a legal advisor and witnesses is also considered privilege. S56 (preparation material for proceedings) |
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Explain what happens when "waiving privilege" |
Where a person waves privilege, the judge may still order that evidence not to be disclosed, either on his own initiative or on application of an interested party who also has privilege. |
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Name the 5 point regarding circumstances in which legal privilege may be claimed. |
- Communication must be made for the purpose of obtaining legal services.
- Communication must be intended to be confidential.
- The privilege is from the person seeking or recieving legal advice.
- The privilege does not extend to communications made for dishonest purposes or to enable anyone to commit an offence.
- Where a person possesses information or communication without authority of the privilege, a judge may order that information or communication not to be disclosed.
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Privilege applies to preparatory materials (information and communication) for proceedings.
A person has privilege if they on reasonable grounds contemplate being a party in proceedings.
The privilege includes? |
- Communication between a party and any person.
- Communication between a partys legal advisor and any person
- Information compiled or prepared by the party or party's legal advisor
- Information compiled or prepared by another person at the request of the party or party's legal advisor |
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What is privilege regarding information obtained by medical practitioners and clinical psychologists? |
Communication made by a person being examined by a medical practitioner or clinical psychologists regarding a drug dependency or any other condition or behaviour that may amount to criminal conduct .
Does not include court orders examinations |
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What is privilege against self-incrimination? |
Privilege applies if a person is required to provide specific information - in the course of proceedings (or) - by a person exercising a statutory power or duty (or) - by a police officer in the course of a criminal investigation (and) - that information would likely incriminate the person of an offence punishable by imprisonment or fine. |
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What is a informant?
What is privilege of informant information? |
A person who provides information to an enforcement agency regarding the commission of an offence in circumstances that they believe their identity will not be disclosed (and) is not called as a witness.
An informant has privilege regarding Information that would disclose or likely disclose their identity. |
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When MUST privilege of an informant be disallowed? When MAY privilege of an informant be disallowed? |
Informant privilege MUST be disallowed by a judge where prima facie shows the information was given for a dishonest purpose (or) for the commission of an offence.
Informant information MAY be disallowed where the judge is of the opinion that the information is necessary for the defendant to present a defence. |
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S76 protects the confidentiality of jury deliberations.
What is the general rule for jury deliberations? |
Evidence must not be given about jury deliberations, which includes everything said or done during that time. |
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Explain the judge's "overriding discretion as to confidential information"? |
A direction that allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if it's in the public interest to protect such confidential information. |
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S121 - Corroboration
In criminal proceedings it's NOT necessary for evidence of the prosecution to be corroberated except for a few specified offences? |
Perjury False oaths False statement of declarations Treason
In these instances evidence of one witness is insufficient to support conviction and corroboration is required. |
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Explain the general rule of corroboration? |
In general, the prosecution's evidence does not need to rely on corroberation Meaning one witnesses testimony, unsupported by other evidence, is sufficient to prove a case, if the court is satisfied that the evidence is reliable, acurate and to the standard of proof required. |
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Is the judge required to issue a warning to a jury about the absence of corroboration? |
There is no requirement for the judge is issue a warning regarding about the dangers of relying on uncorroborated evidence (or) to give any direction regarding its absence. |
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What is the judges role in a jury trial? |
- To decide all questions regarding the admissibility of evidence.
- Explain and enforce the general principles of law.
- Instruct the jury on the rules of law in which the evidence is to be weighed |
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What are the features of the adversarial justice system. Name 5? |
- Facts and relevant evidence of the case are elicited from questions put to Witnesses, from prosecution or defence.
- It's up to each party to decide what witnesses to call, what order they are called and what questions are asked.
- each party has the right to cross examine witnesses who give evidence.
- The judges function is to ensure that evidence is produced according to the rules of evidence and ruling on it's admissibility.
- The defendant is not compelled to give evidence. It's up to the prosecution to prove the case beyond reasonable doubt. |
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Oaths and affirmations. Witnesses 12 and over must? Witnesses 12 and under must? |
12+ must take a oath or affirmation. 12 and under must promise to tell the truth and be informed by the judge the importance of telling the truth. |
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What is the sequence of a jury trial? |
- The jury is enrolled and a foreperson is selected. The judge then commences trial.
- the prosecution makes there opening address detailing the charges and summarses the case against the defendant.
- the prosecution case presents its case. For each witness called it follows the process of evidence in chief, cross examination, re examination.
- the defence makes their opening address to the jury.
- the defence presents its case. If they choose to call witnesses it follows the process of evidence in chief, cross examination, re examination.
- The prosecution makes their closing statement.
- The defence makes their closing statement.
- The judge sums up the case then the jury retires to decide verdict. |
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What is the purpose of giving evidence in chief? |
To elicit a testimony that supports the case of the party calling the witness. |
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What is the general rule on leading questions?
What is a leading question? |
The general rule is that leading questions should not be asked during evidence-in-chief or reexamination.
leading question A question that directly or indirectly suggests a particular answer to the question.
E.g. a question that seeks a yes or no answer "he hit you straight after dinner didn't he?" Note - leading questions are believed to produce unreliable evidence. |
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What are the 2 purposes of cross examination? |
- to elicit information to support their party's case. - to challenge the accuracy of witnesses testimony. (Trying to create doubt) |
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Cross-examination is subject to various statutory controls? What are they? (3) |
- Cross examination duties (s92)
- the prohibition of unacceptable questions (s85)
- cross examination of previous witness statements. (s96)
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S92 - Cross examination duties
The Duty to cross-examine a witness will arise when? |
The Duty to cross-examine a witness will arise when:
- There are "Significant matters" that are "Relevant" and "in issue" which "Contradict" the evidence of the witness (and) - The witness could "reasonably be expected to give admissable evidence on those matters". |
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What are the judges powers in relation to unacceptable questions in cross examination? |
A judge has the discretion to: - disallow an unacceptable question (or) - Advise the witness that they are not obliged to answer an un acceptable question. (unfair, improper, misleading or expressed in a language that is too difficult) |
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S96 - cross examination of previous statements.
Can a witness be cross examined on previous statements? What are the provisions of this section? |
- A witness may be cross examined about previous statements, disclosing the statement or having it's contents disclosed. The cross examiner must identify the time, date, place and circumstances concerning the making of the statement.
- if the witness does not admit to making the statement, and the cross examiner wants to prove they made the it, they must show the witness their statement or disclose its contents.
- after cross-examination the party who called the witness may re-examine them to clarify any issues raised during cross examination (cant be questioned on anything else)
- if additional evidence is accepted, then all parties must be given an opportunity to cross examine the additional evidence. The judge may also allow further reexamination. |
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Judicial warnings and directions
There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial, these include? |
Judicial warnings about unreliable. Evidence.
Judicial warnings about lies.
Judicial direction about the way evidence is given.
Judicial direction about children's evidence |
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A leading question must not be put to a witness in examination in chief or re examination unless ? |
- the questions relate to introductory or undisputed facts
- the questions are put with consent of all parties
- With the judges discretion.
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It's likely that leading questions may be allowed under the judges discretion, in what circumstances? (4) |
- To direct the witnesses attention to identification.
- In order to jog a witnesses memory
- To assist in eliciting evidence from very young people who have difficulty speaking English.
- Where a witness has been declared hostile |
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What are the rules in regards to refreshing a witnesses memory in court ?
What conditions must be satisfied? |
With leave from the judge, a witness can refer to a document "made or adopted" by the witness at a time his memory was fresh"
The following conditions must be satisfied? - leave must be obtained from the judge. - the document must be shown to all parties in proceedings. - the document must have been "made or adopted" by a witness at a time the witnesses memory was fresh" |
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A witness can not give evidence about statements made before trial, that are consistent with evidence given at trial accept for certain exceptions.
What are the three exceptions? |
A previous consistant statement is admissable if the statement: - is necessary to respond to a challenge, regarding the veracity or accuracy of a witness (or)
- forms an integral part of the of events in court (or)
- consists of the mere fact that a complaint has been made. |
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Practical matters re not guilty hearings. Regarding witnesses the o/c should |
Advise witnesses the time date and place of the trial. Check if they have given evidence before and explain the process. Advise they can Refresh memory Check juror list to ensure they are not known to witness. Warn witnesses not to speak with jurors Witness expenses |
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what should o/c do in a not guilty hearing? |
Ensure you look stand and speak clear. Take care to answer the question being asked. Say "I dont know" rather than guess. Address judge as Your honor, sir or ma'am. Address prosecutor and defence as sir or ma'am. Advise judge of any mistakes as soon as possible Identify defendant. Assist witnesses and help as required. Do not speak with jurors. |
