2. Adducing Evidence – Witnesses

2.1 Calling of witness
•    Witness testimony most common form of giving evidence
•    Witnesses testify to facts and opinions. Expert witnesses can testify their opinion
•    Out of court statements by witnesses may be admissible
•    Witness testimony is adduced by examination in chief or cross examination
•    Witness comes to court in answer to subpoena.
•    Witness must be competent, if competent they will be compellable
•    Demeanour, reliability and substance of witness’s evidence can be tested in oral testimony.
•    Witnesses testify on oath or affirmation  this is sworn testimony
•    Witnesses can also give unsworn testimony
•    There is a difference between sworn and unsworn testimony: Implications of perjury are not there for unsworn and unsworn carries much less weight.
•    There is inherent power in court for judge to call witnesses, although Calling of witnesses is ordinarily a function for the parties, rarely the judge.

General Powers of a Court s11
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular the powers of a court with respect to abuse of process in a proceeding are not affected.

Court's control over questioning of witnesses s26
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.

•    It has been held that the 'wide powers' given by this provision and s11 to a court include a power to call witnesses Milano Investments Pty Ltd v Group Developers Pty Ltd unrep (1997).

Clark Equipment (1988) (Civil proceedings)
•    Parties are usually responsible for calling witnesses and the order in which they are called
•    However, Court has inherent power to call a witness  but it is rare for a judge to do this

Criminal Cases: Prosecution Witness - Apostilides
1. Can question P on reasons, invite to reconsider, can’t direct P to call witness
2. Not adjudicate on those reasons
3. May make comment to jury as to effect of leaving out material witness
4. Can in the most exceptional of circumstances call a witness himself
5. Threat to P is that verdict may be unsafe and unsatisfactory
6. P must consider his/her duties: Kneebone v R (1999)

R v Apostilides  (Responsibilities of the prosecution)
Facts: This was a sexual assault trial in which two witnesses were not called by the prosecution  the witnesses were also not called to testify by the trial judge, which left the defence to call the witnesses; this left the prosecution to ask leading questions.
•    The matter went to the high court which gave six propositions as to the responsibilities of the prosecution.
Held:
1.    The Crown Prosecutor alone bears the responsibility of deciding who is to be called for as a witness for the Crown.
2.    The trial judge may, but is not obliged to question the prosecution as to why he did not call a witness.
3.    The trial judge may invite the prosecutor to reconsider the implications of not calling a witness, but can not direct a prosecutor to call a particular witness.
4.    When charging the jury, the judge may make comments as he thinks appropriate with respect to the prosecution’s failure to call witnesses
5.  
 In the most exceptional circumstances the trial judge can call a witness.
6.    The decision not to call a particular witness will not set aside a conviction, unless viewed against the conduct of the whole trial, a miscarriage of justice has occurred.
•    The effect of Apostilides is not so severe now because of s38 of the EA   s38 is a procedure for cross-examining your own witness if they are unfavourable.  It replaces the hostile witness doctrine.  

R v Kneebone (1999)   (Prosecutor’s first duty to present case fairly: Failure of Prosecution to call important witness)
Facts: Girl complains of sexual assault by her mother's new husband. The girl said her mother walked in during the sexual assault and said “that’s enough”. Father continued.  
•    The girl’s credibility was questioned. Neither side called the mother as a witness, whose evidence would have been very important.
•    Notwithstanding, that on the evidence of the complainant, her mother was a material eyewitness, she was not called by the Crown as the crown believed her to be unreliable – a conclusion only available to the court post evidence.
Held: James J: First duty is that the prosecutor presents the case fairly.
•    There was no basis put forward in evidence which would have entitled the Crown prosecutor, on the basis of unreliability, to have formed the view that the mother should not properly have been called in the Crown case. There was, for example, no evidence that the mother was unwilling to speak to the police; nor was there any attempt to interview her  there must be identifiable facts which justify the such a conclusion.  M m
•    By reason of the failure to call the mother, occasioned by the failure to adopt an appropriate course to enable proper consideration of the question of unreliability, a miscarriage of justice occurred.
•    Crown has a duty to call material witnesses and must have a conference with them before deciding whether they are to be called.

Velevski
Facts: Velevski was on trial for killing wife and children  Crown said V killed them all, whilst defence said mother killed them and then committed suicide
•    Trial became a ‘Battle of experts’
Issue: Did the prosecution have an obligation to call all of the pathologists (experts) who agreed with the main forensic pathologist’s report?
Held:
•    Gleeson J: Fairness to the accused did not extend to calling witnesses having differing opinions
•    Gaudron J: Would be going too far to have to call all the witnesses
•    Gummow and Callinan JJ (minority): Crown should have called them  however it didn’t amount to a miscarriage of justice because they didn’t call all the witnesses

2.2 Competence and Compellability
•    Witness has been called and they come into witness box and they have to be competent
•    Competence - a person is competent if that person may lawfully be called to give evidence
•    Compellability - a person is compellable if that person can lawfully be obliged or required to give evidence.
•    Sworn - on oath or affirmation
•    Unsworn - not on oath or affirmation; definition in s13(2), given less weight

Competence and compellability s12
Except as otherwise provided by this Act:
(a) every person is competent to give evidence; and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence

All witnesses are presumed competent, and all witnesses who are competent are compellable.  The effect of this provision is that all witnesses are both competent to give evidence and compellable to give evidence. The succeeding provisions provide exceptions to that general proposition. Note 'competent to give evidence about a fact' allows a court to decide that a witness is competent to find evidence about some facts but not others. Includes children as in R v Brooks (1998)

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