5194LAW Lecture Notes - Lecture 5: Bauer Media Group, Exclusionary Rule, Voir Dire
20 Jun 2018
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1. TESTIMONY
1.1. General principles
- Witness testimony is evidence capable of proving facts
- General preference for oral testimony given by witness in court from memory (but
“jogging” of memory may be allowed).
- Prior to a witness’s appearance in court, counsel will have taken a statement from the
witness (and reduced it to writing).
- Flow of testimony in court is controlled by a narrow question-answer format.
- Counsel also has the control in deciding what witnesses are actually called and in what
order they should be called (see Briscoe v Briscoe).
- Prosecutor retains discretion on whether to call a Crown witness, and the court should not
interfere with this discretion (see R v Apositilidies).
- Rule in Jones v. Dunkel: unexplained failure of a party to call a witness may lead to
inference that uncalled evidence would not have assisted that party’s case. (not used often
and mostly only in civil matters – recent eg Wilson v Bauer Media Pty Ltd [2017] VSC 521)
- It is desirable (but not mandatory) that an accused person give evidence before any other
defence witnesses, there is no rule of law to this effect (see R v Lister)
- Buchanan J in Richards and Ora [1918] S.A.L.R. 315 a pp 316-317. His Honour there said:
o“…There is no rule of law that prevents the accused from giving evidence in the box
even after he has called other witnesses for the defence. It is desirable that he
should be the first witness called particularly where witnesses are ordered out of
Court. In the case of Stinie Morrison (1911) 6 Cr.App.R. 159 at p. 165 in the Court of
Criminal Appeal, the Lord Chief Justice (Lord Alverstone) asked of Counsel for the
accused, ‘How was it you called these witnesses before you called the prisoner?’
Counsel replied: ‘If prosecuting counsel can call his witnesses in order he
prefers so also can counsel for the defence. Before calling the appellant I
wished to know myself what these witnesses had to say.’
The Lord Chief Justice said: ‘In all cases I consider it most important for the
prisoner to be called before any of his witnesses. He ought to give his
evidence before he has heard the evidence and cross-examination of any
witness he is going to call.’
oThat shows the desirableness of the practice of calling the accused persons first, but
as a matter of law I agree that their evidence at a later stage cannot be excluded.
1.2. Recall: silence
- Right to remain silent
oTwo distinct notions:
The pre-trial right to silence
The right of an accused person to remain silent at his/her trial
oAccused has right to remain silent, but inferences from silence are not excluded
(Weissensteiner).
- Accused does not remain silent
oWitness rules apply
oWhat if they are not believed?
oR v Baden-Clay [2016] HCA 35 –
The jury is entitled to reject the accused’s evidence
Evidence given may preclude inconsistent defences being raised
May even assist Crown case
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Accused bound by own evidence and strategic choices in presentation of
defence case
o[57] The Court of Appeal appears to have reasoned that the respondent's evidence
could be disbelieved by the jury, as it plainly was, so that there was no evidence at
all in relation to the hypothesis. If it were truly the case that there was no evidence
from the respondent as to the circumstances of his wife's death, the application of
the principles explained in Weissensteiner would have required consideration; and
they were not adverted to by the Court of Appeal. But the respondent chose to
give evidence. To say that the respondent's evidence was disbelieved does not
mean that his evidence could reasonably be disregarded altogether as having no
bearing on the availability of hypotheses consistent with the respondent's
innocence of murder. His evidence was important, even if it was disbelieved,
because it was open to the jury to consider that the hypothesis identified by the
Court of Appeal was not a reasonable inference from the evidence when the only
witness who could have given evidence to support the hypothesis gave evidence
which necessarily excluded it as a possibility.
1.3. Prior inconsistent statement
-101 Witness’s previous statement, if proved, to be evidence of facts stated
o(1) Where in any proceeding—
(a) a previous inconsistent or contradictory statement made by a person
called as a witness in that proceeding is proved by virtue of section 17, 18 or
19; or
(b) a previous statement made by a person called as aforesaid is proved for
the purpose of rebutting a suggestion that the person’s evidence has been
fabricated;
othat statement shall be admissible as evidence of any fact stated therein of which
direct oral evidence by the person would be admissible.
How does this change the normal rules for evidence?
What exclusionary rule would otherwise apply?
What principle is influencing the law here?
-102 Weight to be attached to evidence
oIn estimating the weight (if any) to be attached to a statement rendered admissible
as evidence by this part, regard shall be had to all the circumstances from which an
inference can reasonably be drawn as to the accuracy or otherwise of the
statement, including—
(a) the question whether or not the statement was made, or the
information recorded in it was supplied, contemporaneously with the
occurrence or existence of the facts to which the statement or information
relates; and
(b) the question whether or not the maker of the statement, or the supplier
of the information recorded in it, had any incentive to conceal or
misrepresent the facts.
1.4. Witness examination
- Each witness is subjected to three stages of questioning:
oExamination in chief by counsel for the party who called the witness,
ocross-examination by the opponent’s counsel and,
oif necessary, re-examination by their side’s counsel
- Manner and form of examination: question and answer
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- The role of the judge:
oIn theory, the examination of witnesses is entirely a matter for the parties, rather
than for the trial judge.
oIf there are any objections to questions, the judge will adjudicate and decide
whether to uphold or dismiss the objection.
1.5. Examination in chief
- Questioning your own witness
-Purpose: to obtain testimony in support of your party’s version of the facts in issue
- Advocate’s role is to help witness tell court about relevant facts
- Start by identifying witness for record
- Then use non-leading questions to prompt witness through testimony
- NOT to make arguments or get witnesses to agree with your arguments
- There are four main points to remember about examination in chief:
o1. As a general rule, in examination in chief witnesses may not be asked leading
questions;
o2. A witness may refresh their memory by referring to documents previously
prepared by the witness (NB: QEA ss 19, 101 (3));
o3. A witness cannot usually be asked about their former statements with a view to
the statement becoming evidence in the case or in order to demonstrate
consistency (NB: QEA s 101 (1)(b));
o4. A party may discredit their own witness only if the judge considers the witness
to be hostile (NB: QEA ss 17, 19, 101 (1)(a) and 102).
-No leading questions (esp. on contentious issues).
- What is a leading question?
- The definition in the Evidence Act 1995 (Cth) states the definition for the Federal
jurisdiction and reflects the common law. From the Dictionary in the Schedule, it is:
oleading question means a question asked of a witness that:
(a)Directly or indirectly suggests a particular answer to the question; or
(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 is asked.
- However, a blunt question which is capable of a yes/no answer and which summarises the
effect of a witness’ evidence is not an impermissible leading question R v Shaw [1996] 1 Qd
R 641
1.6. EXAMPLES: Leading questions
Questions which suggests the answer:
P: At 9.30pm on Wednesday 4 October, did you see the defendant leaving the
deceased’s home covered in blood?
W: Yes
P: Did you at 7.00am on the morning of 17 August see a speeding red car driven by the
defendant cross the intersection of Noeline St and North Terrace?
W: Yes
1.7. EXAMPLES: Non leading questions
Break up questions that assume facts. Which do not suggest answers:
P: Where were you at 6.50am on the morning
of the 17th of August?
W: I was standing on the corner of Noeline St
and North Terrace?
P: Did you observe anything that occurred
there?
W: Yes, a collision
P: Please tell the Court what you saw W: I saw a red car driving very fact enter the
intersection and hit the other car that was
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