Chapter 13 - Examination of Witness Flashcards
EXAMINATION OF WITNESS
Overview
1) Purpose & general principles of witnesses
2) Examination of witness
3) Order of examination of witness
4) Exclusion of collateral matters
5) Refreshing memories
GENERAL PRINCIPLES OF WITNESSES
Overview
1) Importance of witness
2) Types of witness
3) Credibility of witness
4) Distinction between credit & credibility
5) Role of trier of facts, i.e. judge
GENERAL PRINCIPLES OF WITNESSES
Importance of witness
PP v Hassan Jafarpour:
- Witnesses are essential in the unfolding of the narrative of each party.
- Events of the past are reconstructed & witnesses attest to these events.
- Their evidence is presented, then tested by cross-examination and finally evaluated by the trial judge.
- It is assumed that witnesses will be truthful as they feared the consequences of untruthful testimony.
- At the end of the trial and before a verdict is delivered, much of the discourse will invariably pivot around the reliability of witness testimony.
GENERAL PRINCIPLES OF WITNESSES
Types of witness
PP v Hasan Jafarpour:
- The first two are clear cut; they are the truthful and untruthful witnesses.
- The third type of witness can sometimes provide some difficulty to the trial judge - this is the truthful but mistaken witness.
- In other words, this is a witness who is telling the truth as he perceives it but he may be mistaken as to what he saw or heard.
- So his credibility, in one sense, is not in doubt but the accuracy of his evidence is although some might say a witness is not credible if he is mistaken in his testimony.
GENERAL PRINCIPLES OF WITNESSES
Credibility of witness
1) Meaning - Kwang Boon Keong Peter v PP:
- Credibility concerns the opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers.
2) Scope - McAllister v. Campbell [2014] NIQB 24:
- Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed;
- But also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence.
GENERAL PRINCIPLES OF WITNESSES
Assessing credibility of a witness
1) Demeanour of the witness - Tan Cheng Hock v. Chan Thean Soo & Anor:
- In arriving at a finding as to credibility, the demeanour of the witness has to be balance against the rest of the evidence and the probabilities of the case.
2) Consistency of story - PP v Mohamed Ali:
- In deciding on the credibility of the witness, the court will look at how consistent the story is;
- how the witness stands the test of cross-examination, and how far it fits with the rest of the evidence and the circumstances of the case.
- In the absence of contradiction and inherent improbabilities, the evidence of witness will normally be accepted.
3) Discrepancies & contradictions - De Silva v PP:
- If there are discrepancies and contradictions in the evidence of the witness, the court will need to decide on whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy;
4) Factors overview - McAllister v. Campbell [2014] NIQB 24:
- In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following:
1) The inherent probability or improbability of representations of fact;
2) The presence of independent evidence tending to corroborate or undermine any given statement of fact;
3) The presence of contemporaneous records;
4) The demeanour of witnesses e.g. does he equivocate in cross examination;
5) The frailty of the population at large in accurately recollecting and describing events in the distant past.
6) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication;
7) Does the witness have a motive for misleading the court;
8) Weigh up one witness against another.
GENERAL PRINCIPLES OF WITNESSES
Distinction between credit & credibility
Kwang Boon Keong Peter v. PP:
- credit involves ‘antecedents, associates, character, impartiality and consistency’;
- credibility concerns the ‘opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers’.
- the credit of a witness refers to his character and moral reliability;
- credibility of a witness refers to his mental capacity and power to be a witness of veracity.
GENERAL PRINCIPLES OF WITNESSES
Duty of court & role of judge
1) Court may accept part of evidence - PP v. Datuk Haji Harun bin Haji Idris (No. 2):
- There is no rule of law that the evidence of a witness must either be believed in its entirety or not at all.
- The court may for good and cogent reasons to accept one part of the evidence of a witness and reject the other
2) Role of judge - Boonsoom Boonyanit v Adorna Properties:
- A trier of fact, in order to arrive at a decision, must judicially appreciate the evidence led before him upon the issue called for resolution.
- A decision arrived in the absence of a judicial appreciation of evidence is liable to appellate correction.
- Judicial appreciation is concerned with the process of evaluating the evidence for the purpose of discovering where the truth lies in a particular case.
- It includes, but is not limited to:
1) identifying the nature and quality of the evidence, assigning such weight to it as the trier of fact deems appropriate;
2) testing the credibility of oral evidence against contemporaneous documents as well as the probabilities of the case and assessing the demeanour of witnesses.
EXAMINATION OF WITNESS
Overview
1) Purpose of cross-examination
2) Power of cross-examiner - to ask leading questions
3) Power of cross-examiner - to impeach credit
4) Power of cross-examiner - to test witness accuracy, veracity & credibility
5) Power of cross-examiner - to shake credit by injuring his character
EXAMINATION OF WITNESS
Purpose of cross-examination
PP v Wong Yee Sen:
- To assist in the administration of justice by revealing the truth to the court.
- To eliminate or reduce the danger that a false conclusion will be reached.
Ref. Wigmore:
- cross-examination is beyond doubt the greatest engine ever invented for the discovery of truth.
EXAMINATION OF WITNESS
Power of cross-examiner - to ask leading questions
1) The law:
- S.143
2) Scope:
- Leading question is a question which suggests the answer;
- It is not permitted to be asked during examination-in-chief because:
- potentially biased in favor of that party;
- may bring out only the evidence which is favorable to the questioner’s client;
- witness may not express his full meaning in their own hands.
EXAMINATION OF WITNESS
Power of cross-examiner - to impeach credit
1) The law:
- S.145
2) Effect of impeachment:
- Tua Kin Ling v PP:
if a witness is successfully impeached, the Judge may reject his evidence in its entirety; or after sieving the evidence, accept the part considered reliable. - Muthusamy v. PP:
where a witness is able to explain the material differences, his credit is saved but there may be a doubt as to the accuracy of his memory.
EXAMINATION OF WITNESS
Power of cross-examiner - to test witness accuracy, veracity & credibility
1) The law:
- S.146(a)
2) Scope - PP v Hassan Jafarpour:
- Under S.146(a), when a witness is cross-examined, he may be asked any questions which tend “to test his accuracy, veracity or credibility’ thus implying that there is a difference between the three characterisations.
EXAMINATION OF WITNESS
Power of cross-examiner - to shake his credit by injuring his character
1) The law:
- S.146(c):
2) Scope & application - Dhalip Bhagwan Singh v PP:
- The complainant had been suspected of making a false report for the purpose of making a false insurance claim.
- Held: by virtue of S.146(c), the evidence of the complainant would still have to be treated with some caution as he was a person of bad character.
ORDER OF EXAMINATION OF WITNESS
Overview
1) General order
2) Cross-examination
3) Putting the defence
ORDER OF EXAMINATION OF WITNESS
General order
1) Examination-in-chief
2) Cross-examination
3) Re-examination
CROSS-EXAMINATION
Overview
1) Failure to cross-examine - general rule
2) Rationale for the general rule
3) Failure to cross-examine - exceptions
CROSS-EXAMINATION
Failure to cross-examine - general rule
1) Tan Kim Ho v PP:
* Ref. Aik Ming (M) Sdn Bhd & 8 Ors v. Chang Ching Chuen & 3 Ors:
- Failure to cross-examine is an abandonment of the pleaded case and may be barred from raising it in argument thereafter.
* Ref. Browne v Dunn:
- Lord Halsbury’s description of the situation of failure to examine a witness during the plaintiff or prosecution’s case as a “perfect outrage”.
- This is however not to say that there is any burden placed on the accused to disprove any guilt or to prove innocence; it is only assessing the credibility of a witness.
2) Recent - Puganeswaran Ganesan & Ors v PP (FC, 2020):
* Ref. Wong Swee Chin v PP:
- Evidence that is not challenged during cross-examination is deemed to be admitted.
- Evidence that is not challenged during cross-examination needs no corroboration, even when it comes from an accomplice.
CROSS-EXAMINATION
Rationale for the rule of failure to cross-examine
1) Brown v Dunn:
- to give the witnesses notice, and;
- to give them opportunity to explain & defend their character.
2) AEG Carapiet v AY Derderian:
- The rule for failure to cross-examine is a rule of essential justice;
- It serves to prevent surprises at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is made comes to give evidence by producing witnesses.
3) NOTE: Both of these cases are referred to by FC in Puganeswaran Ganesan & Ors v PP recently.
CROSS-EXAMINATION
Failure to cross-examine - exceptions
PP v Wong Swee Chin:
- Ref. Phipson on Evidence:
- Where the story is itself of an incredible or romancing character; or
- the abstention arises from mere motive of delicacy; or
- when counsel indicates that he is merely abstaining for convenience or to save time; or
- where several witnesses are called on the same point.
- Therefore, although general proposition is that testimony not subjected to cross-examination may be treated as unchallenged, the court is nevertheless entitled to reject it.
PUTTING THE DEFENCE
Overview
1) General rule
2) Effect on burden of proof
3) Recent application
PUTTING THE DEFENCE
General rule
PP v Mastor Ibrahim:
- It is the duty of the defence to put its case at the earliest possible stage.
- Failure may render the defence to be branded as a recent invention or an afterthought, incapable of being weighted as evidence.
PUTTING THE DEFENCE
Effect on burden of proof
Alcontara Ambross Anthony v PP:
- Failure on the part of the defence to put its case can never, by itself, relieve the prosecution of its duty of establishing the charge against the accused beyond reasonable doubt.
- Although a court may view with suspicion a defence which has not been put to the appropriate prosecution witnesses who might have personal knowledge of the points at issue, the court is still bound to consider the defence, however weak;
- If the court is not satisfied that the prosecution has discharged the burden of proof, court is bound to acquit.
PUTTING THE DEFENCE
Recent application
1) Re-instating principles - Megat Halim Megat Omar v PP:
- Although there is no burden on an accused person to prove his innocence, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case.
- Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case.
- Ref. Wong Swee Chin v. PP;
“… there is a general rule that a failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of a witness’s testimony.” - Ref. PP v DSAI (No.3):
The accused’s defence can be ascertained not merely from his own evidence but also the line of cross-examination of the prosecution’s witnesses.
This has been termed as a rule of essential justice.
2) Example of application - Chew Wai Keong & Anor v PP:
- The suggestion that Dolphine was the perpetrator of the crimes surfaced only during the defence stage.
- The first accused described Dolphine but the particulars given in his evidence were too sketchy to be meaningful.
Held:
- The defence was an afterthought.
- In turn, the introduction of this belated version certainly weakened the accused’s credibility.
- Even if Dolphine existed, there was no evidence to link him to the crimes except for the allegations made by the accused.
