LAWS13010 Evidence and Proof
Topic 4 – Oral Evidence
Learning Objectives
At the end of this topic, you should be able to:
•
Discuss the nature of oral evidence, and the rules which exist
to ensure witnesses strive to give their best evidence;
•
Discuss the limitations of oral evidence, as a result of the
limits of perception, comprehension, memory and honesty;
•
Discuss whether oral evidence gives inherent advantages to
certain types of witness;
•
Discuss the protections available for certain vulnerable
witnesses; and
•
Discuss the forms of privilege which may protect witnesses
from answering certain types of question.
What is Oral Evidence?
For our purposes, oral evidence has four key characteristics:
Oral evidence is viva voce: by voice, using interview
techniques, not monologues.
Oral evidence is given under an 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 witnesses may be questioned by
all parties.
Oaths, Perjury and Contempt
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) s25
Before giving oral evidence, a witness must swear or affirm that their
evidence will be truthful.
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.
First, some statutes may require proceedings to be conducted in private.
Childrens Court Act 1992 (Qld) s.20
Second, a court has an inherent power to conduct proceedings in private
if this is necessary in order to do justice.
Hogan v Hinch
Third, the inherent power has been given statutory form in relation to
criminal matters in Queensland.
Justices Act 1886 (Qld) s.71
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.
The Limits of Comprehension
How often do you ever just simply observe something without
interpreting it or trying to understand it?
Imagine two people looking at an item of stolen property – an
antique vase. One witness has a passion for antiques; the
other witness has a passion for swimming. Do they see the
same things?
Look at the girl in the picture to the right.
She is clearly crying, but is she sad or is
she joyful? Might two witnesses validly
reach the opposite conclusions?
The Limits of Memory
Brains are weird.
Human memory has a number of significant failings:
~ Not everything gets “recorded” in memory
~ Memories degrade over time, and the
brain sometimes “fills in the blanks”
~ Memories are suggestible. People may
“remember” things they never saw.
theinnocenceproject.org suggests that in about 75
percent of DNA-based acquittals after DNA
evidence became available, the DNA evidence was
contrary to compelling witness accounts
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 Acts 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:
~
Recasting facts or circumstances to put themselves in the
best possible light;
~
Omitting or “forgetting” details
they may consider embarrassing;
~
Consciously “filling in the blanks”
to provide a more coherent
account of events.
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?
Children as Witnesses
Principles for dealing with children as witnesses
(a)
the child is to be treated with dignity, respect and
compassion;
(b)
measures should be taken to limit, to the greatest
practical extent, the distress or trauma suffered by the
child when giving evidence;
(c)
the child should not be intimidated in cross-examination;
(d)
the proceeding should be resolved as
quickly as possible.
Evidence Act 1977 (Qld) s.9E
Children as Witnesses: Practice
Methods used to protect child witnesses
(a)
children may give tape-recorded evidence prior to the trial;
(b)
children may give evidence by an audio-visual link;
(c)
children may give evidence from behind a screen,
particularly to protect them from the influence of the
accused;
(d)
cross-examination is limited. No “fishing expeditions”.
Evidence Act 1977 (Qld) pt 2, Div 4A
Rape Victims as Witnesses
The Criminal Law (Sexual Offences) Act 1978 (Qld) recognises the
particular challenges faced by rape victims in giving evidence
against the people accused of those offences.
The 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 any possible inference that a voluntarily
promiscuous person is more likely to have consented.
Such rules are now commonly referred to 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.
see Evidence Act 1977 (Qld) s.15
Privilege: Client Legal Privilege
Protects the client, not the lawyer.
A lawyer has a privilege not to answer questions in evidence if doing so
would breach the client's confidence.
Legal Profession Act 2007 (Qld) s.491
Four elements must be met. The material must be:
• Communications
• between the Client and Lawyer
• for the dominant purpose
• of obtaining legal advice relating to current or anticipated litigation.
ESSO v FCT (1999) 201 CLR 49
Privilege: Various Public Interests
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 given in court cannot become the basis for an action in
defamation.
Defamation Act
2005 (Qld) s.27
Evidence may be privileged if its release would be injurious to
the public .
Duncan v Cammell Laird & Co [1942]
AC 624
... the freedom of speech and debates
or proceedings in Parliament ought not
to be impeached or questioned in any
court or place out of Parliament.
Bill of Rights 1688
Should Privilege be Wider?
Religious communications between clergy and penitents are
protected under the Uniform Evidence Acts, but not in Qld law.
Evidence Act 1995 (Cth)s.127
Journalists are entitled to protect the identity of their sources under
the Uniform Evidence Acts, but not in Qld law.
Evidence Act 1995 (Cth) Div. 1A
business,
Should a cultural privilege exist? Consider
the claims that the Hindmarsh Island Bridge
should not have been built for cultural
reasons which, as secret women's
could not be disclosed.
Chapman v Luminus (No. 5) (2001) FCA 1106
Review
In this topic, you have learned:
•
The nature of oral evidence;
•
The importance of the oaths and perjury laws which support
truthful honest evidence;
•
The limitations of perception, comprehension, memory,
honesty and eloquence, and their implications for testimony;
•
The special arrangements for oral evidence by children and
rape victims;
•
The range of privileges available; particularly against self
incrimination; client legal privilege; and various public interest
privileges.