Chapter 13 - Examination of Witness

Question 1

EXAMINATION OF WITNESS

Overview

Answer 1

1) Purpose & general principles of witnesses
2) Examination of witness
3) Order of examination of witness
4) Exclusion of collateral matters
5) Refreshing memories

Question 2

GENERAL PRINCIPLES OF WITNESSES

Overview

Answer 2

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

Question 3

GENERAL PRINCIPLES OF WITNESSES

Importance of witness

Answer 3

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.

Question 4

GENERAL PRINCIPLES OF WITNESSES

Types of witness

Answer 4

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.

Question 5

GENERAL PRINCIPLES OF WITNESSES

Credibility of witness

Answer 5

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.

Question 6

GENERAL PRINCIPLES OF WITNESSES

Assessing credibility of a witness

Answer 6

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.

Question 7

GENERAL PRINCIPLES OF WITNESSES

Distinction between credit & credibility

Answer 7

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.

Question 8

GENERAL PRINCIPLES OF WITNESSES

Duty of court & role of judge

Answer 8

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.

Question 9

EXAMINATION OF WITNESS

Overview

Answer 9

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

Question 10

EXAMINATION OF WITNESS

Purpose of cross-examination

Answer 10

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.

Question 11

EXAMINATION OF WITNESS

Power of cross-examiner - to ask leading questions

Answer 11

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.

Question 12

EXAMINATION OF WITNESS

Power of cross-examiner - to impeach credit

Answer 12

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.

Question 13

EXAMINATION OF WITNESS

Power of cross-examiner - to test witness accuracy, veracity & credibility

Answer 13

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.

Question 14

EXAMINATION OF WITNESS

Power of cross-examiner - to shake his credit by injuring his character

Answer 14

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.

Question 15

ORDER OF EXAMINATION OF WITNESS

Overview

Answer 15

1) General order
2) Cross-examination
3) Putting the defence

Question 16

ORDER OF EXAMINATION OF WITNESS

General order

Answer 16

1) Examination-in-chief
2) Cross-examination
3) Re-examination

Question 17

CROSS-EXAMINATION

Overview

Answer 17

1) Failure to cross-examine - general rule
2) Rationale for the general rule
3) Failure to cross-examine - exceptions

Question 18

CROSS-EXAMINATION

Failure to cross-examine - general rule

Answer 18

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.

Question 19

CROSS-EXAMINATION

Rationale for the rule of failure to cross-examine

Answer 19

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.

Question 20

CROSS-EXAMINATION

Failure to cross-examine - exceptions

Answer 20

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.

Question 21

PUTTING THE DEFENCE

Overview

Answer 21

1) General rule
2) Effect on burden of proof
3) Recent application

Question 22

PUTTING THE DEFENCE

General rule

Answer 22

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.

Question 23

PUTTING THE DEFENCE

Effect on burden of proof

Answer 23

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.

Question 24

PUTTING THE DEFENCE

Recent application

Answer 24

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.

Question 25

EXCLUSION OF COLLATERAL MATTERS

Overview

Answer 25

1) the law & scope
2) rationale for exclusion
3) application

Question 26

EXCLUSION OF COLLATERAL MATTERS

the law & scope

Answer 26

1) the law:

• S.153
• known as finality rule.

2) scope:
- Illustrations to S.153.
3) scope - Attorney General v Hitchcock:

• The rule limits the right to call evidence to contradict a witness on collateral issues;
• It excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.

4) example - CGU Insurance Sdn Bhd v Asean Security Paper Mills (CA, 2006):

• The purpose of admitting Mr Kala Singh’s evidence was to show that DW10 was not a truthful person;
• This is a collateral issue going to his credibility.
• This is squarely caught by the finality rule encapsulated in s. 153.
• As such, the learned judge ought not to have allowed the collateral evidence of Mr Kala Singh about the execution of exh. P51 to form part of the impeachment proceedings as it had no relevance whatsoever to the facts in issue in this case.

Question 27

EXCLUSION OF COLLATERAL MATTERS

Rationale for exclusion

Answer 27

PP v DSAI (No. 3):

• The court must confine itself to the points in issue.
• Questions asked with the sole object of shaking the credit of a witness is collateral to the fact in issue.
• If the parties are allowed to adduce evidence to contradict the witness on matters that are collateral in nature, “there will be no end of proving collateral issues and the real points in dispute will be lost sight of”.
• Hence, answers given by a witness to questions put to him concerning collateral facts must be treated as final.

Question 28

EXCLUSION OF COLLATERAL MATTERS

Application

Answer 28

Tokio Marine Insurance v Ratakrishna Ramatasu:

• Defendan mengaku terlibat di dalam kemalangan tetapi 3 tahun kemudiannya dia menukar pengakuan dan telah membuat surat akuan menafikan penglibatannya di dalam kemalangan.
• Held: The court agreed with the first respondent that the second version of the second respondent’s evidence was clearly inadmissible by virtue of s. 153 of the Act.

Question 29

REFRESHING MEMORIES

Overview

Answer 29

1) the law
2) principles
3) procedures
4) leave requirement
5) requirements to get leave
6) right to copy of document & cross-examine
7) effect of denying rights to cross-examine
8) recent application

Question 30

REFRESHING MEMORIES

the law

Answer 30

The law:

• S.159

Question 31

REFRESHING MEMORIES

principles

Answer 31

Moomin bin Seman v PP:

• GR: A witness when testifying in court should speak from memory unaided by reference to any document;
• Exception: When the witness is unable to do so, resort can be made to refreshing memory by previous writing.

Ref. V Daniel v. PP:

• A document may be used by a witness in giving evidence for two purposes, namely:
  (a) to refresh his memory under S.159 and
  (b) to testify to facts stated in the document under S.160.

Question 32

REFRESHING MEMORIES

procedures

Answer 32

Moomin bin Seman v PP:

• A witness is not entitled to refresh his memory as of right;

Ref. Yuen Chun Yii v PP:

• Leave of the court must be first obtained before he is allowed to refresh his memory.
• There must be a demonstrated need for a witness to refer to a document before leave is granted.

Question 33

REFRESHING MEMORIES

leave requirement

Answer 33

1) Yuen Chun Yii v PP:

• Leave of the court must be first obtained before he is allowed to refresh his memory.
• There must be a demonstrated need for a witness to refer to a document before leave is granted.

2) Chau Kam Hoon v PP:

• A witness cannot refresh his memory as of right;
• He must get the leave of Court to do so.

Question 34

REFRESHING MEMORIES

requirements to get leave

Answer 34

1) Need - Chau Kam Hoon v PP:

• There must be a need for the witness to refer to a document;
• it would not be proper to grant leave to refer to such a document simply because a request was made by a party;
• The facts which entitle a witness to refresh his memory ought to be first elicited from him;
• e.g. he had no clear independent recollection but wanted to refresh his memory by seeing the writing.

2) Contemporaneity - Chau Kam Hoon:

• the writing must have been made by the witness himself contemporaneously with the transaction to which he testifies; or
• So soon afterwards that the facts were fresh in his memory; or
• if the writing is made by someone else it must have been read by the witness within the aforesaid time and known by him to be correct.

3) Determination of contemporaneity - R v Da Silva:

• It is a question of fact and degree in each case;
• the matter should be investigated to see that the events were fresh in the witness’s mind after the lapse of time.
• Much will depend on the nature of the evidence to be given.

Question 35

REFRESHING MEMORIES

right to copy of document & cross-examination

Answer 35

1) The law:
- S.161
2) Scope:

• the adverse party may tender the document as an exhibit in the case; and
• The adverse party may cross-examine the witness based on the document pursuant to s. 161 of the EA.

Question 36

REFRESHING MEMORIES

effect of denying rights under S.161

Answer 36

1) Chua Kam Hoon:

• PW had refreshed his memory based on a record but the defence was not given a right under s. 161 of the EA to cross-examine the prosecution witness based on the record.
• effect: The evidence becomes inadmissible.

2) cf. Chuah Aik King v Keydonesoft Sdn Bhd:
- the testimony of the witness is still admissible but in ascertaining the weight to be attached to such evidence, the court should scrutinise such evidence with great care.

Question 37

REFRESHING MEMORIES

Whether a witness is allowed to peruse the statement before giving evidence (i.e. refresh memory before giving evidence)

Answer 37

1) Moomin bin Seman v PP:

• refreshing of memory must be done in court;
• witness should not be given copies of their statements prior to testifying in court.

cf.
2) PP v DSAI (No.3)

• There is no legal prohibition against showing statement before a witness gives evidence;
• However, it may affect weight.

Question 38

REFRESHING MEMORIES

recent application

FC, 2014

Answer 38

1) Adiswaran Tharumaputrintar v PP & other appeals (FC, 2014):

• There can be no general rule that a witness is to be allowed to refresh his memory only when his memory is faded.
• It is within the trial court’s discretion to allow a witness to refresh his memory.
• It is the duty of the trial judge to see that the court will not be deprived of the full testimony and information which it should have in order to do justice.