2.3 Sworn and Unsworn Evidence

Sworn evidence of witnesses s21 
(1) A witness in a proceeding must take either an oath, or make an affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under s13(2)
(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(5) An affirmation has the same effect as for all purposes as an oath.

•    s22 – an interpreters evidence is to be on oath or affirmation
•    s23 – (1) a witness/interpreter has a choice of oath or affirmation; (2) court to inform of both; (3) Court may direct witness to make affirmation if (a) person refuses to make a choice (b) it is not reasonably practicable for person to take an oath.

Requirements for oaths s24
(1) A religious text need not be used.
(2) An oath is effective even if the person:
(a) did not have a religious belief or did not have a religious belief of a particular kind
(b) did not understand the nature and consequences of the oath                      
s24A (NSW only)  (1) person may take an oath even if person’s belief don’t include a belief in God; (2) Form of the oath (a) need not include a reference to God, and (b) may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations.

2.4 Examination of Witnesses

(a) Form of questioning

Court’s control of the examination of witness. s26
The court may make such orders as it considers just in relation to: (a)the way in which witnesses are to be questioned (b)the production and use of documents and things in connection with the questioning of witnesses (c)the order in which parties may question a witness (d)the presence and behaviour of any person in connection with the questioning of any witness.

s27  A party may question any witness, except as provided by this Act

Order of examination in chief, cross-examination and re-examination s28
Unless the court other wise directs:                                                                                          (a)cross-examination of a witness is not to take place before the examination in chief of a witness; and (b)re-examination of a witness is not to take place before all  other parties who wish to do so have cross examined the witness.
 
•    Examination in chief: questioning of a witness by the party who called the witness to give evidence.
•    Cross-examination: questioning of a witness by a party other than the party who called the witness to give evidence.
•    Re-Examination: questioning of a witness by the party who called that witness to give evidence after the other party has questioned them.

Manner and form of questioning witnesses and their responses s29
(1) A party may question a witness in any way the party thinks fit except as provided by this chapter or as directed by the court.
(2) A witness may give evidence wholly or partly in narrative form if: (a) the party that called the witness has applied to the court for a direction that the witness give evidence in that form; or (b) the court so directs.
(3) Such direction may include directions about the way in which evidence is to be given in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears that this would aid in comprehension of the evidence.

GPI v Leisure Corp (1990) (per Young J)
Facts: There was a dispute relating to the price of units in a unit trust.
•    It was contended that since that since the plaintiffs and the mortgagee involved were parties of the same interest, their respective counsel should not both be allowed to cross-examine the defence witness.

Held: Young J made 13 points including, (1) Only right, is right to a fair trial; … and (5) Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness, (6) where there are parties in the same interest, the judge will apply (5).
•    A judge can exercise discretion over an examination and cross-examination to ensure a fair trial  a judge may also limit a cross-examination for a good reason.

NMFM Property v Citibank Ltd (1999) (Affirmed the finding in GPI Leisure Corp)
Facts: NM sued Citibank over losses from a ‘negative gearing’ package organised by Citibank  Citibank then cross-claimed against 5 other defendants and 10 other people including Hacopian.

Issue: Whether
counsel for NM should be allowed to cross-examine Hacopian, and if so, whether this should before counsel for Citibank did so.
Held: NM dids not have a ‘right’ to cross-examine Hacopian  however NM did have a right to a fair trial, and ordinarily a trial judge’s discretion will be properly exercised by allowing all parties other than the one who called a witness, to cross-examine him/her.
•    It was thus ruled that NM could cross-examine Hacopian  it was also considered appropriate for counsel for Citibank to cross-examine Hacopian before counsel for NM, with the provision that counsel for Citibank could cross-examine if necessary.

R v Esposito (1998)
Facts: The appellant had been convicted of murder and she appealed on the ground that the trial judge had unduly intervened in the hearing, resulting in a mistrial  the accused felt the manner in which the trial judge questioned the accused favoured the prosecution
•    Defence counsel raised point in the trial that judge was being excessive but, judge continued anyway. This strengthened the appeal ground.

Held:  Judge’s intervention was excessive and inappropriate and the ground of appeal had been made good.
•    It was not appropriate for the Trial Judge to have ‘gone to the aid’ of the Crown, either in the presentation of the evidence, or in the summing-up  although possibly well-motivated, Court of appeal felt that it was excessive in this case.

Leading Questions – Examination in chief and re-examination (not a blanket prohibition)
Definition: 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 during the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
s37
(1)A leading question must not be put to a witness in examination in chief or re-examination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness’s evidence; (as in, if asking your own witness, “Is your name X?”);or (c) no objection is made to the question and each party is represented by a lawyer; or (d) the question relates to a matter not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience - the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be given.
(2) Subsection 1 does not apply in civil proceedings to questions about investigations, inspections or reports that the witness made in the course of carrying out official or public duties.
(b) Reviving Memory

Attempts to revive memory in court s32
(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2)Without limiting the matters that the court may take into account in deciding whether to give leave, the court is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is a document that (i) was written by the witness when the events recorded were fresh in their memory; or
(ii) was, at such a time,  found by the witness to be accurate.
(3) If the witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with leave of the court, can read aloud, as part of their evidence, so much of the document as relates to that fact or opinion.
(4) The court is to give directions that so much of the document as relates to the proceeding is to be produced to the other party (if they request it).

•    Must consider s192 in relation to leave requirements.
•    ‘Fresh in their memory’ differs from the common law position which required ‘contemporaneity’.
•    Where the document is used to refresh memory, whether in or out of court, all privileges attaching to the document will be waived.
R v Da Silva [1990] (Statute does not require contemporaneity anymore. Only needs to be near to the time)
Facts: Conversation in 21/12/96 in a jail cell
•    Witness shared cell with De Silva and had this conversation with accused, where De Silva admitted a robbery - Crown then called the cell mate to give evidence.
•    Before he gave evidence, he gave statement to police on 22/12/96 about the conversation.
Issue: Could the cell mate use the statement in the witness box a year later in trial?

Held: It should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of the events in question, even though it does not come within the definition of contemporaneous where:
a)    the witness indicates he can’t recall the details of the events;
b)    he made a statement much nearer to the time of the event and the contents of the statement represented his recollection at the time he made it;
c)    he had not read the statement prior to coming in the witness box
d)    he wants the opportunity to read the statement before continuing to give evidence.
•    e.g. doesn't need to be a contemporaneous statement to use in refreshing a witness’s memory if witness can't recall details of events, contents will aid his memory, he hasn't read it yet, he wished to use it. The witness should be allowed to leave the witness box to read the statement but if non-contemporaneous he shouldn't be allowed to use it in the box.

Continued on page 4