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Rules of evidence

One of the most difficult aspects of a trial is the successful leading of evidence, and the questioning of witnesses. This area is governed by a large body of technical rules that will be quite daunting to anyone unfamiliar with running court cases. A brief explanation of some of the commonly encountered rules will be provided, but if it is necessary to represent yourself in a trial or hearing it is strongly advisable to speak to a lawyer for guidance on this area. The best general text on the Australian rules of evidence is J.A. Gobbo's Cross on Evidence (4th Australian edition).

There is a large body of precedent law that covers the way evidence can be led in trials and other court hearings. Three important features of the law of evidence will be described here: the rules on hearsay, the rules on opinion evidence and the Browne & Dunn rule:

  1. The rule against hearsay generally excludes a witness saying what someone else said, or said they saw or heard. You can only ask your witness, in court, to give direct evidence of what they saw or heard or experienced directly of a particular incident. An exception to this rule allows evidence of hearing "admissions" to crimes. So, for instance, police are allowed to tell the courts they heard arrested suspects "confess" in the police station although there are procedural requirements which must be followed, such as tape recording interviews and giving correct warnings.
  2. Opinion is generally not allowed to be given as evidence, unless it is by a person who is considered to be an expert in the relevant field. Generally witnesses cannot say what they thought, assumed, inferred or concluded about any incident. They must stick to what they observed.
  3. The Browne & Dunn rule requires you (or the prosecution) to give an opposing witness a chance to respond to any contradictory evidence that you may later call. For instance, if you are going to say that a police officer hit you and that officer gives evidence, you have to put it to him and allow him to respond; if you do not the prosecution will be allowed to recall him after your evidence, to contradict you.

Finally, an important thing to keep in mind is that there exists at law a basic principle that individuals can only be prosecuted on evidence that is relevant to their alleged crime. Thus facts relating to a previous criminal record are not admissible. One of the major exceptions to this is that if the defendant attempts to use evidence of good character to show that it is unlikely that they did the alleged acts. In this case, by claiming good character you also allow the prosecution to raise bad character, ie any past convictions you may have, in response. If you didn't raise character, the magistrate would have to decide the question of guilt without knowing about these past convictions. Evidence of good character can still be led in regard to sentencing, as discussed below.

Examination & cross-examination

One of the more difficult aspects of self-representation is to understand the rules of evidence. You should take some advice on how to call evidence from your witnesses, as this is when the rules are most restrictive.

Leading questions

When you first question your witnesses, this is called examination in chief. Generally, you usually ask open questions that allow your witnesses to tell their version of events. You cannot suggest answers to your witnesses or lead your witness. Questions such as, 'Were you wearing a white baseball cap? will not be allowed because all the witness has to do is answer yes. The answer is already supplied in the question. It will be necessary to ask first, Were you wearing anything on your head at that time? and then ask what colour it was.

Cross-examination

Cross-examination is when you question the prosecution witnesses. Since they have already been questioned by the prosecution you are now allowed to ask leading questions. Generally speaking, cross-examination is a lot easier, but you should be aware that very few cases are actually decided on the basis of skilful cross examination (despite what Hollywood might say!). Also, remember that in cross-examining a witness, there is always the danger that you will give a prosecution witness the chance to say something they were not able to say, or forgot to say, in examination in chief and which may harm your case. The most important rule in cross-examination is - NEVER ASK A QUESTION OF A WITNESS THAT YOU DON'T KNOW THE ANSWER TO.

The best cross examination is one where an overall inference can be put together from the witness's answers, rather than one where the witness crumples in a heap in a witness box. It is very rare for witnesses, especially police witnesses, to trip themselves up in an obvious way. But a good cross-examination can paint a picture from their answers that supports your case.

Another related idea is that it is important to not ask too many questions, and to know when to stop asking questions. As tempting as it might be, never actually put the inference you have created in a question to the witness it will only give them a chance to explain their way out of it. As an example, if the witness has admitted that the street was very dark when they saw someone vandalising a shop, do not ask them how they managed to see the person. Most likely they will come up with a good explanation that you were not expecting. Once they have admitted it was very dark, that should be enough.

The other important thing to remember in cross-examination is to never shout or try to bully the witnesses it will only isolate the magistrate.

Subpoenas

These are documents that you can serve on any party to require that documents relevant to your court case to be produced to the court. Being before the court on a charge, therefore, allows you to use some of the authority of the court to force disclosure of evidence. For instance, you may wish to see a police officer's notebook, to check against their statement; or you may wish to see governmental records relating to an action you were involved in.

A lawyer will tell you how to fill out such a form, which must be stamped by a court registrar. There will usually be a court filing fee, which you will have to pay. The subpoena is required to be physically served on the party from whom evidence is required together with conduct money, ie sufficient money to pay for the witness's travel costs to court (usually $5.00).

People can also be summoned to appear in court to give evidence, through subpoenas; however it is risky to call a witness from whom you have no statement. Take care and take some advice, on how to draft subpoenas. If they are not precise enough, you may have wasted your time and money.