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Oral Evidence and its Limitations - Coggle Diagram
Oral Evidence and its Limitations
Oral evidence is
viva voice
: by voice, using interview techniques, not monologues
Oral evidence is given under oath or affirmation to be truthful - backed by penalties
Oral evidence ideally relates to things perceived by the witness with their own five senses
Oral witness may be questioned by all parties
Oaths, perjury and contempt
Oaths Act 1867 (Qld) s 25
Before giving oral evidence a witness must swear or affirm their evidence will be truthful.
The crime of perjury -lying before the court- can result in a jail term of 14 years, and in some circumstances, life.
Criminal Code 1899
(Qld) s 124
A witness must answer all proper questions put to them. Failure to do so may result in the witness being imprisoned for 7 days or until they answer.
Justice Act 1886
(Qld) s 82
In camera
The fundamental principle requiring oral evidence to be given in open court can be limited in three ways
By statute requiring proceedings to be conducted privately.
Childrens Court Act 1992
(Qld) S 20
Also,
special witness
Evidence Act 1977
(Qld) s 21A
By the power of the court, where the court may direct the conduct proceedings in private if necessary in order to maintain justice.
Hogan v Hinch
(2011) 243 CLR 506
Constitutional challenge against the power of the court to hold closed hearings following Derrin Hinch exposing sex offender identity which was previously suppressed
Inherent power given in statutory form in relation to criminal matters in Queensland
Justices Act 1886
(Qld) s 71
Limits of Perceptions
Limits of Comprehension
Limits of Memory
Refreshing memory
If a witness is unable to remember matters upon which they are questioned, they may ask to refresh their memory from documentary sources.
The documentary source must have been made 'contemporaneously' - at or near the time of the incident.
R v Richardson
[1971] 2 All ER 773
The document then must be shown to the other side, and the witness may be questioned in relation to its contents.
The Uniform Evidence laws also contain provisions to allow police to give evidence in chief by being 'led through' a statement made and signed at the time of the incident.
Evidence Act 1995
(Cth) s 33
Limits of Honesty
Despite oaths some witnesses will simply lie
Even witnesses endeavouring to assist the court may tell less malicious forms of lies
Recasting facts or circumstances to put themselves in the best possible light
Omitting or 'forgetting' details they may consider embarassing
Consciously 'filling in the blanks' to provide a more coherent account of events
Limits of eloquence
Testimony is inherently an oral activity, so the capacity to give effective testimony is affected by the eloquence of the witness.
The effectiveness of the witness may be reduced for those with communication difficulties such as non-English speakers
Certain 'types' of witnesses may be more likely to be stereotyped, making there evidence less compelling
Special Types of Witnesses
CHILDREN
the child is to be treated with dignity, respect and compassion
measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence
the child should not be intimidated in cross-examination
proceedings should be resolved as quickly as possible
Evidence Act 1977
(Qld) s 9E
Children may give evidence via tape recording, form AV link, behind a screen, and cross examination is limited
RAPE VICTIMS
Criminal Law (Sexual Offences) Act 1978
(Qld) recognises the particular challenges faced by rape victims giving evidence against people accused of those offences.
Public may be excluded from proceedings where such a witness is giving evidence, and their identity may be protected (s 5)
A witness in a rape case may not be questioned about their sexual reputation for chastity or promiscuity (s 4)
This rule prevents possible inference that a voluntarily promiscusous person is more likely to have consented
Commonly known as "rape shield" rules
Privilege
Self-incrimination
[A] party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure.
Bowen LJ,
Redfern v Redfern
(1891) P 139 (CA)
Nothing in this Act shall render any person compellable to answer any question tending to incriminate the person
Evidence Act 1977
(Qld) s 10
However, in criminal trials, the defendant is not compellable. If the defendant chooses to give evidence, they must obviously expect to be asked questions about whether they committed the offence.
Evidence Act 1977
(Qld) s 15
Client Legal Privilege
Protects the client, NOT the lawyer
Four elements exist
Communications
between client and lawyer
of obtaining legal advice relating to current or anticipated litigation
Esso v FCT
(1999) 201 CLR 49
for the dominant purpose
Public Interest
Statements made before the Parliament or one of its committees cannot be questioned in any court.
Parliament of Queensland Act 2001
(Qld) s 8
Evidence may be privileged if its release would be injurious to the public.
Duncan v Cammell Laird & Co
[1942] AC 624
Religious communications are not protected under QLD law
Journalists are not entitled to protect sources under qld law
Cultural privilege
Chapman v Luminus (No.5)
(2001) FCA 1106