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Week 4 Oral Evidence, Special Witnesses, Privilege - Coggle Diagram
Week 4 Oral Evidence, Special Witnesses, Privilege
What is Oral Evidence?
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Oral evidence is viva voce: by voice, using interview techniques, not monologues.
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Oaths, Perjury and Contempt
Before giving oral evidence, a witness must swear or affirm that their evidence will be truthful.
The evidence which I shall give to the court and jury sworn between our Sovereign Lady the Queen and the defendant shall be the truth the whole truth and nothing but the truth, so help me God
Oaths Act 1867 (Qld) s 25
The crime of perjury – lying before a court – can result in jail terms of 14 years, and life in some circumstances
Criminal Code 1899 (Qld) s 124
A witness must answer all proper questions put to them. A failure to do so may result in the witness being imprisoned for 7 days or until they answer.
Justice Act 1886 (Qld) s 82
Evidence in camera
A fundamental principle of open justice is that oral evidence should be given in an open court. However this principle is limited in three ways.
Second, a court has an inherent power to conduct proceedings in private if this is necessary in order to do justice.
Hogan v Hinch (2011) 243 CLR 506
Third, the inherent power has been given statutory form in relation to criminal matters in Queensland.
Justices Act 1886 (Qld) s 71
First, some statutes may require proceedings to be conducted in private.
Childrens Court Act 1992 (Qld) s 20
The Limits of Perception
Compared to scientific instruments, human beings have very limited perception. Oral evidence can be no more accurate than the perceptions of the witnesses.
In addition, human beings ‘filter’ their perceptions. Different witnesses, observing the same event, are likely to have different recollections.
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The Limits of Memory
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Memories degrade over time, and the brain sometimes ‘fills in the blanks’
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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 must then 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
The Limits of Honesty
Despite oaths to the contrary, some witnesses will simply lie.
However even witnesses who are endeavouring to assist the court may tell less malicious forms of lie, for instance:
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The Limits of Eloquence
Testimony is inherently an oral activity, so the capacity to give effective testimony is affected by the eloquence of the witness.
Does this reduce the effectiveness of those with communication difficulties, such as non-English native speakers, or those with communication-related disabilities?
Are certain ‘types’ of witness more or less likely to be believed, as a result of stereotyping and discrimination?
Are certain types of witness – particularly the vulnerable – likely to attract a protective instinct from jurors?
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