Witness Evidence
Oral Evidence the Norm
In the absence of agreement in writing between the solicitors of all parties, and subject to the Rules, witnesses in a trial of the action, or for assessment of damages, are to be examined verbally in open Court.
The basic principle of the trial is that matters of fact should be decided by way of oral evidence subject to cross-examination. Although there is the general power to allow matters to be proved on affidavit instead of oral evidence, the courts are very reluctant to dispense with oral evidence if the matter is contested.
In the absence of any agreement in writing between the solicitors of all parties, and subject to the Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce (orally) and in open court.
Subpoena
A witness who will not appear voluntarily may be compelled to attend by way of a subpoena. A subpoena Ad Testificandum -requires a person to attend to give verbal evidence. A subpoena Duces Tecum requires the witness to attend and produce documents in his possession for that purpose.
An application for the latter type of subpoena is made by way of unilateral application to court based on affidavit. It must give a description of the matters for which the witness is to provide evidence, a description of the documents required, and steps taken previously to procure attendance with the documents or  production of the documents by discovery or otherwise.
The production by the intended witness with documents must be necessary for the fair disposal of the proceedings and the circumstances must be such that it cannot be effectively achieved by other practicable means.
Service of Subpoena
Subpoena must be served within 12 weeks of issue. Personal service is required producing the original and delivery of a copy endorsed with the name of the issuing solicitor. The subpoenas should be accompanied by a sum of money to reimburse the cost of travel to and from the court.
The subpoena  is still valid notwithstanding failure to do so if a satisfactory offer to reimburse travel expenses is made. This is separate to the possibility that the witnesses expenses for attending may be required to be paid by the court.
A subpoena may be set aside or discharged by motion to the court on notice to the party requiring attendance. It may be set aside if it relates to irrelevant matters, is oppressive an abuse of process or the documents are subject to privilege.
A person who fails to appear in answer to a subpoena is guilty of contempt of court. The person is subject attachment and committal. The court has a discretion as to whether to do so.
Oath or Affirmation
Evidence must be given on oath or affirmation. Evidence is given verbally. Children under 14 persons who lack capacity may give evidence otherwise  provided that they are capable of giving an intelligible account of the matters in question.
A person of Christian faith takes an oath on the New Testament. A person of Jewish faith takes an oath on the Old Testament. In the case of others, an oath  may be administered in any manner lawful.
If a witness objects to taking an oath, the court should enquire as to what alternative form of giving evidence is binding on his conscience. In that case that form of oath for equivalent would be administered.
The parties may call witnesses as they see fit. The judge is not entitled to require particular persons  to be called.
Video Link
In any civil proceedings the court may of its own motion direct party to participate in proceedings by video link from outside the State. This provision was replaced in 2020 with a general provision for the remote hearing of civil evidence. A direction may be made that a particular type or category of evidence may be taken remotely.
This  may be done by a direction by the court of its own motion or on foot of an application by one of the parties. The court direction may specify the electronic communications technology to be used and make such other orders as are appropriate or necessary. The entire proceedings may be held remotely.
Examination in Chief
Counsel for a party who himself or herself gives evidence or who calls a witness elicits evidence relevant and necessary to establish his or her case by way of examination in chief.
Leading questions may not be asked save as to matters that are not in dispute introductory matters refreshing recollection (subject to conditions) assisting in identification and other limited circumstances where necessary. A Leading question is one that prompts or encourages the answer wanted. A question which assumes disputed facts may equally be leading.
Compound question should not be asked as a matter of good practice. Counsel  conducting an examination in chief should bring out the evidence from the witness to prove the claimant’s case.
A party may not cross-examine or ask leading questions of a witness which he or she has called. A hostile witness is one who refuses to answer questions, disregards his duty as a witness or has made prior inconsistent statements. A procedure applies before a person may be treated as a hostile witness.
Cross-Examination
After examination in chief the opposite party’s counsel  may cross-examine the witness. Cross-examination seeks to bring out evidence unfavourable to the party who called the witness and favourable to the party cross-examining. Cross-examination may also cast doubt on the credibility of the witness, his or her reliability, bias et cetera.
Generally, cross-examination consists mainly of leading questions. Counsel l will seek to present the alternative narrative and discrediting material in a way that allows affirmative or negative answers only.
The cross-examination may relate to any issue or fact in the case. It is not limited to matters raised in the examination in chief.
The cross-examining party may seek to highlight contradictions and inconsistencies in the witnesses evidence. It may  seek to undermine the credibility of bias of the person concerned. It may challenge  powers of perception and recollection. It may raise previous convictions point to bias partiality and improper motive. It may raise evidence of his bad character or general reputation for untruthfulness.
Cross-Examination Issues
Generally, the judge has wide discretion to ensure the proper conduct of the trial. Questions which are irrelevant or vexatious or irrelevant to the matters in question may be disallowed. A Â judge may ask questions but should not do so in a manner which is unfair and disruptive.
A witness may be examined by the representatives of other parties to the proceedings even if he has not given evidence adverse to their position.
The court has an overall discretion to allow cross-examination where  parties have similar interests. This should not merely cover the same ground as the earlier cross-examination
It is a fundamental principle of common law rules of evidence that where there is a conflict of facts and a party intends to call evidence contradicting that given by witness, that contradicting evidence is put to him in cross-examination, requesting a response. If this is not done the judge may refuse to admit the contradictory evidence. Alternatively, witness may be recalled, and the opportunity given to him to comment on the conflicting evidence offered are to be offered by another party.
Re-Examination
After cross-examination the party who called the witness may re-examine the witness on matters raised in cross-examination. The purpose is to clarify responses and rehabilitate the credibility and reliability et cetera of the witness concerned. It is limited to matters raised in cross-examination.
Order for Non-Oral Evidence
The Court may, at any time for sufficient reason, order that
- any particular fact or facts may be proved by affidavit, or
- that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable, or
- that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner
However, where it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
The court in dispensing with oral evidence considers
- whether the facts relate to issue significantly in dispute
- whether the other party requires production of the witness for cross-examination
- the difficulty / or expense of producing the witness such that there was a serious risk of injustice to the party seeking to offer evidence on affidavit
The application was made as a preliminary application before the trial. The application must relate to formal or collateral matters and not matters central to the action or claim
Witness Evidence Out of Court
Attested copies of all documents filed in the High Court are admissible in evidence in all causes and matters and between all persons or parties to the same extent as the originals would be admissible.
A court may, at any time for sufficient reason, order that particular facts be proved by affidavit, or that the affidavit of any witness be read at the hearing or trial, on conditions as may be thought reasonable.
The Court may dispense with attendance in Court of a witness for sufficient cause and provide that they be examined by interrogatories or otherwise before a Commissioner or Examiner. If it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the taking of evidence of such witness by affidavit.
The general practice in relation to examination, cross-examination, and re-examination at trial shall apply to evidence taken at any stage or taken before an officer of Court, subject to such special directions as may be given in any case.
Evidence from other Proceedings
All evidence taken at the hearing or trial of any matter may be used in any subsequent proceedings in the same cause or matter.
An order to read evidence taken in another cause or matter shall not be necessary. The evidence may, save all just exceptions, be read on foot of ex parte application for leave of the Court, to be obtained at the time of making the application and in any other case, upon the party who desires to give such evidence giving two days’ previous notice to the other party of his intention to read such evidence.
Evidence taken subsequently to the hearing or trial of the matter shall be taken as nearly as may be in the same form as evidence taken at or with a view to a trial.