A witness must be..?
Competent
What does ‘competence’ mean?
Lawfully able to testify
Who is not a ‘competent’ witness?
- The defendant
- The disordered/disabled
- Children who cannot comprehend
- Spouse of the defendant
- Deaf/speech impaired witnesses who cannot comprehend
Can witnesses be compelled to give evidence in court?
Yes; most, except for defendants and incompetent witnesses
In what situation can spouses be compelled to give evidence in court?
When D is being charged for domestic violence, child abuse, or sexual offences against a minor
What is admissible opinion evidence?
Opinions which is derived from observed facts and represent a common inference, eg he was drunk, he was young and tall
When should the jury be directed to accept an expert opinion as correct?
When the expert’s opinion AND all other evidence leads inevitably to only one conclusion
What is ‘against self-incrimination’ privilege?
A witness has the right to refuse to answer questions or disclose docs if doing so would incriminate themselves.
This does not stop the court from acquiring this evidence through other means.
What are the two sub-types of ‘legal professional privilege’?
Litigation and Advice privilege
What is ‘litigation privilege’?
Client communication with a lawyer for the purpose of advancing or acting in a process of litigation (including 3rd party communication)
What is ‘advice privilege’?
Client communication with a lawyer to obtain general advice (but not 3rd party documents)
What is the form of questioning for examination in chief?
Unless…?
Non-leading
Unless questioning issues not in dispute or where witness is hostile, then leading may be permitted
What does ‘memory refreshing’ by a witness mean?
When they ask to refresh their memory from their statement
Subsequent oral evidence must be given from a recovered memory
What happens when a witness is hostile?
A party can cross-examine and put the witness’ previous statement to them as the truth of the matter
What are the main exceptions to use of a witness’ previous consistent statements?
- Res gestae
- Suspect’s response to police allegation
- Complaints
- Recent fabrication
What is ‘res gestae’?
A statement made as an immediate reaction to a crime being committed against the statement maker
What is the ‘doctrine of recent complaint’?
Complaints about allegation are admissible where the complainant testifies that the earlier complaint was made and was true
What does ‘rebuttal of recent fabrication allegation’ mean?
A witness can negate an allegation of ‘recent fabrication’ (ie alleged that they made something up on the spot) by showing that their earlier statements also made the same effect
What is examination in chief?
Questioning to your own witness to elicit favourable testimony
What is the form of questioning at cross-examination?
Leading and non-leading
When can a police witness statement be admissible evidence?
To show discrepancy in a witness’ contradictory statements
What is the ‘rule of finality to collateral matters’?
Prevents trials from splintering into multiple insignificant disputes about credibility related matters that are collateral to the issues in the case
What is ‘re-examination’?
Asking further examination-in-chief questions after a witness has been cross-examined
Summary trials take place before a…?
Bench of at least two lay mags or one District Judge
