RMIT Evidence and Proof in Litigation: Witness Examination Analysis

This assignment analyzes a problem scenario involving a trial for murder, focusing on the cross-examination of a witness, Jasmine, and the application of the Evidence Act 2008. The assignment addresses key issues such as the production of written reports, the admissibility of witness testimony regarding intoxication, and the allowance of a 'view process.' It examines the application of relevant rules, including the Walker v. Walker rule, and sections 32, 34, and 44 of the Evidence Act 2008. The analysis concludes that the counsel can compel Jasmine to produce the written document as evidence under S 32, produce any witness for cross-examination under S 44, and that the examination process can take place outside the court to revive the memory of the witness under S 34. The assignment provides a comprehensive understanding of evidence and proof in litigation and the key legal principles involved.

Running head- EVIDENCE AND PROOF IN LITIGATION
Evidence and Proof in Litigation
Name of the Student
Name of the University
Author Note

1Evidence and proof in litigation.
The primary issues that were observed in the problem include the following:
1. What shall be the response of the Judge to the request by the council for the
production of the written report?
2. What should be done by the Judge upon the circumstance that the council wants to
call upon a witness who is claiming that Jasmine was intoxicated during the
occurrence of the event?
3. Whether the Judge conducting the trial will allow the view process to take place?
The rules applicable to the case are as follows:
1. Evidence Act 2008
Witnesses can be compelled when they may be legally obliged to give evidence. Hence, it
means that when a competent witness refuses to give evidence, he or she may be compelled
and it may result in detention for contempt. (Kowalick, StuckeyScott and Wise 2015)
2. Walker v Walker rule
As per the rule laid in the case of Walker v. Walker, when a witness refers to some kind of
document in the due process by the examination in chief, the opposing counsel has the power
to ask for the production of the document. Not only that, the counsel conducting the
examination, has the power to force the witness in order to produce the document as a part of
the case. Nevertheless, in a scenario where the witness is referring to the document to refresh
the memory, then the opposing counsel has the right to order for the production of the
document.
3. S 32 of the Evidence Act, 2008
As per the provision, a witness must not make use of any document in order to recover
retention without the leave of the court. The S 32(3) provides that a witness may, with the

2Evidence and proof in litigation.
permission of the court, read out that portion of the document that relates to the facts of the
case that will be helpful in order to conclude the case.
4. S 44 of the Evidence Act,2008
As per the provisions of the Act, it sets out the guidelines in a particular situation where a
witness is required to be cross-examined relating to a preceding illustration that has been
alleged by another person.
5. S 34 of the Evidence Act, 2008
As per the provisions of the Act, the court provides the right of the council and the witnesses
that upon a request made to the court, it may direct the documents that are used to recuperate
the memory of the witness can be submitted out of court. However, there is an exception that
may refuse the admission of such witnesses upon the fact that the witness pursued to revive
the memory without prior notice to the court. The court may further examine them devoid of
any penalty, and the cross-examination may be conducted upon the subjects of the document.
1. As per the provisions of the Act, under S 32 of the Evidence Act, the court has the
right to provide the power to the council to produce any kind of document that was
used by the witness to revive his or her memory about the occurrence of a crime. In
this case, Jasmine noted all the facts and the occurrences that occurred two years ago
and was using it in order to revive her memory about the crime before the day of trial.
So the court has the right to compel the witness to produce such documents. By the
Application of the rule laid in the case of Walker v. Walker, the examination council
has the power to compel the witness to produce any document the relates to the case.
2. As per the provision of S 44 of the Evidence Act, the council may ask for any
physical evidence or any document that might be required in the process of cross-
examination of the witness (Hunter et al 2016). As per the case, some other person

3Evidence and proof in litigation.
knew the fact that Jasmine was intoxicated at the night of the occurrence, hence as per
that fact, the evidence by an intoxicated person is not admissible in the court as per
the Evidence Act, 2008. So the council has the right to bring up any witness that
proves the cause. So following the scenario of the case if the defense council wants to
produce the witness who can prove that Jasmine was intoxicated the trial judges will
allow it and considered it admissible.
3. The Judge shall allow the view process to be conducted by the council as per the
provision of S 34 of the Evidence Act, 2008. Under this Act, the court has given the
power to conduct the examination process outside the court that may revive the
memory of the witness in a better way. Hence following the provision the trial judge
will allow the prosecution to go to the hotel and view and the defence cannot object
the view to take place.
In conclusion, as per the provisions stated above and according to the guidelines and
the sections provided in the Evidence Act, 2008, it is observed that the counsel can
compel Jasmine to produce the written document as evidence under S 32. Further, as a
power of the court, they may produce any witness for cross-examination under S 44.
Moreover, the examination process can take place outside the court to revive the memory
of the witness under S 34.

4Evidence and proof in litigation.
Reference
Evidence Act, 2008
Hunter, J., Henning, T., Edmond, G., McMahon, R., Metzger, J. and San Roque, M., 2016.
The trial: Principles, process and evidence. “Law Institute Journal”.
Kowalick, P.N., Stuckey, M., Scott, J. and Wise, J., 2015. A critical examination of witness
in Australia.
Walker v Walker (1937 57 CLR 630)