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Final

3.1 Trial Process--Examination in Chief

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Examination in Chief  Hostile Witnesses & Prior Inconsistent Statements  Prior Consistent Statements  Refreshing Memory Hostile witnesses & Prior Inconsistent Statements 17 How far a party may discredit the party’s own witness (1) A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness. (2) However, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. Impeaching Own Witness Generally—Cannot cross-examine/impeach own witness: s17(1) QEA  Must distinguish hostile ↔ unfavourable witness (s17)—if merely unfavourable cannot— o ask leading questions o give evidence of bad character for own witness: s17(1) QEA (party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character)  Can lead contradictory evidence: s17(1) QEA (but may contradict the witness by other evidence) If Hostile—Can cross-examine | prove prior inconsistent statement  Can even call a witness known to be hostile for the purpose of proving a PIS: Williams Establishing Hostility  Must distinguish a hostile witness from an unfavourable witness: s17 QEA Test—Counsel alleging hostility must affirmatively show that witness is—  unwilling to tell the whole truth for the advancement of justice  deliberately withholding material evidence or McClelland v Bowyer (P run down by D—P‘s son made statement to police damaging to P‘s case—P declined to call son—D called son, made inconsistent statement but not hostile in demeanour  inconsistent testimony probably due to sympathy of witness—trial judge right to grant leave for D‘s counsel to treat as hostile) Onus—on the party seeking to establish hostility, to show affirmatively that witness is hostile (objective question of fact): McClelland v Bowyer Indicia of hostility (R v Hadlow (murder—vomit found on sheets & in deceased‘s oesophagus—H‘s wife identified sheets as theirs—inconsistent statement at trial  hostile witness || without a voir dire → within trial judge‘s discretion); R v Mullins (repetitive statements | bad language  hostile))  Behaviour of witness  Demeanour  Inconsistencies in evidence  Manner of answering non-leading questions  choice of language demonstrating hostility o If relying on behaviour → no need for a voir dire  Any prior inconsistent statements—not conclusive but one factor: McClelland v Bowyer (PIS + son sympathetic to father  child witness hostile even though not hostile in demeanour) Andrew Trotter LWB432 Evidence o If relying solely on PIS → must have a voir dire to put to witness: R v Hadlow (gives witness the opportunity to explain why making different statements) Putting PIS to Witness [→ also Refreshing Memory] Once adverse → can cross-examine & put PIS to the witness: s17(1) QEA (in case the witness in the opinion of the court proves adverse, may by leave of the court prove that the witness has made at other times a statement inconsistent) o BUT must mention circumstances of statement and ask witness whether they made that statement: s17(2) QEA (before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement); Price v Bevan; Browne v Dunn  Conviction cannot be upheld solely on the basis of a prior inconsistent statement: Parkinson (sodomy & incest—boy denied truth of accusatory PIS made out of court in voir dire—declared hostile & cross-examined—PIS was the only evidence  conviction quashed on appeal)  Section 18 does not apply to hostile witnesses: R v Baira (2009) (a) Witness admits making the PIS & that it is true (= that lied in court)  Goes to credit of witness—content not proven by virtue of s17  Becomes part of oral testimony—tribunal of fact must decide which of the two statements should be believed: Morris (murder—EIC inconsistent with statements to police  goes merely to credit of witness, jury to choose which evidence to accept) (b) Witness admits making the PIS ↔ denies its truth  May be proven by calling other witnesses etc: s17 QEA; Lawrie (assault—girlfriend of accused had made PIS—agreed that signature appeared on statement but would not admit that it was true  witness hostile | PIS proven through s17 QEA) o BUT must mention circumstances of statement and ask witness whether they made that statement: s17(2) QEA; Price v Bevan; Browne v Dunn  Acts as evidence of truth of statement: s101(1)(a) (Where in any proceeding 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 … that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible) o Exception to hearsay: s101(1)(a)  Weight determined considering— (s102) o Whether statement contemporaneous with facts o Whether maker of statement had any incentive to misrepresent or conceal the facts (c) Witness denies making the PIS  May be proven by calling other witnesses etc: s17 QEA o BUT must mention circumstances of statement and ask witness whether they made that statement: s17(2) QEA; Price v Bevan; Browne v Dunn  Acts as evidence of truth of statement: s101(1)(a) (Where … a previous inconsistent or contradictory statement … is proved by virtue of section 17, 18 or 19 … that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible)  Weight determined considering— (s102) o Whether statement contemporaneous with facts o Whether maker of statement had any incentive to misrepresent or conceal the facts Andrew Trotter LWB432 Evidence  If PIS which witness denies is the only evidence → unsafe to coParkinson (victim testifying for crown – but not willing to accuse—proved hostile & proved PIS  not enough to convict on its own) Written PIS—Requirement to Show Document (can be cross-examined on written PIS—can only XE if hostile)  s19 overrides CL where written PIS o Made by witness; and o Relevant to facts in issue → need not show doc  Otherwise apply CL position: Rule in Queen’s Case → must show doc Made by witness & relative to facts in issue: s19 A witness may be cross-examined as to a previous statement  made by the witness in writing or reduced into writing  relative to the subject matter of the proceeding without such writing being shown to the witness  Can be cross-examined without showing the document if— (s19(1)) 1. Document made, verified or adopted by witness Proving Signature  By the party‘s own admission  Call an eye witness to the execution of the signing  Call opinion evidence [→ opinion evidence]  Expert in handwriting: Clark v Ryan  a lay person who is very familiar with the person‘s handwriting: Sherrard v Jacob  Comparison of the disputed writing & writing proven to be genuine to the satisfaction of the judge can be admitted in evidence: s59 QEA  eg—passport 2. Relative to the facts in issue  no need to give the witness an opportunity to explain the inconsistencies: Savanoff v Re-Car Pty Ltd (workers comp—witness alleging injury sustained in different way—PIS contradicted EIC  opportunity to explain available in reexam)  BUT— o Must show the parts you intend to contradict: s19(1A) (before contradictory proof can be given) o Court can require the document to be produced: s19(2)  Effect (s101(1)(a) QEA) & weight (s102) as per above st Made by witness ↔ not relative to facts in issue: 1 limb of rule in Queen’s Case  s19 does not apply where not relevant to facts in issue  Before XE on a document, counsel must— (Queen’s Case) o hand the document to the witness (make sure they don‘t revea
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