Chapter 14 - Hostile Witness Flashcards
HOSTILE WITNESS
Overview
1) who is hostile witness
2) cross-examination of hostile witness
3) impeachment proceedings on hostile witness
HOSTILE WITNESS
who is hostile witness
Dato’ Hj Azman bin Mahalan v PP:
- The question of whether a witness is hostile is for the judge alone to decide and a witness is not to be regarded as hostile merely because his evidence goes against the party calling him.
CROSS-EXAMINATION OF HOSTILE WITNESS
Overview
1) The law & scope & purpose
2) Procedure for cross-examination hostile witness
3) Effect of cross-examination on hostile witness
4) Recent application
CROSS-EXAMINATION OF HOSTILE WITNESS
The law & scope
Purpose of cross-examination of hostile witness
1) The law:
- S.154
2) Scope - Re Wee Swee Hoon:
- if it is shown that the witness has turned hostile or is not desirous of telling the truth, the court may allow cross-examine of the witness by the party calling him
- The question of whether a witness is hostile is to be determined by the judge.
3) Purpose of cross examination hostile witness:
PA Anselam v PP:
- Not to substitute the testimony of witness in court with the one recorded earlier;
- S.154 is aimed at preventing the court from giving any value to the testimony of the witness in court;
Murugan Arumugam v PP:
- The cross-examination under s. 154 EA need not necessarily result in impeaching the credibility of the witness.
CROSS-EXAMINATION OF HOSTILE WITNESS
Procedure
Re Wee Swee Hoon:
- Upon noticing that the witness has deviated from his earlier statement, the counsel calling the witness would need to ask the witness whether he had made a statement earlier.
- Having heard his answer (whatever it may be), the counsel should then hand to the judge a copy of the witness’s statement to apply for leave to cross-examine him under s. 154 EA.
- The judge having given the opponent party an opportunity of seeing the statement and making its submission on the application, would then give his ruling on the application.
- If the application is allowed, the counsel may then proceed to cross-examine the witness.
CROSS-EXAMINATION OF HOSTILE WITNESS
Effect of cross-examination on hostile witness
1) PP v Tan Chye Joo & Anor:
- Whether the evidence of the witness should be rejected in whole or in part would depend on the result of the cross-examination.
2) Ramli bin Shafie v PP:
- Even if the witness is declared hostile, so much of his evidence which is corroborated by other evidence can still be accepted by the court
3) Mrinal Das & Ors v State of Tripura:
- It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible.
- The fact that the witness was declared hostile furnishes no justification for rejecting en bloc the evidence of the witness.
- However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth.
His deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
4) Murugan Arumugam v Pendakwa Raya:
- need not necessarily result in impeaching his credibility.
- If the court declared a witness hostile, the fact that he is declared as such furnishes no justification for rejecting his evidence en bloc.
- Normally, the court should look for corroboration from other reliable witnesses.
CROSS-EXAMINATION OF HOSTILE WITNESS
Recent application
CA, 2020
PP v Mohd Riedzuan Hamzah:
- it was sufficient that the witness had contradicted what he had said in his former statement in relation to a material issue to apply for leave to cross-examine.
- however, the procedure must be strictly adhered to.
- OTF, the DPP did not tender in court the so- called statement made by SP2 to the police for the trial judge and counsel for the respondent to see and determine whether there was indeed any discrepancy between SP2’s oral testimony and his written statement for the judge to make a ruling before the prosecution could be allowed to cross-examine SP2.
- CA finds that the cross-examination of SP2 is not in accordance with the procedure as the prosecution has failed to tender SP2’s statement to the presiding judge and to the defence counsel for viewing.
- Effect: SP2’s credit was not impeached & his evidence created a gap in the prosecution’s case.
IMPEACHMENT PROCEEDINGS
Overview
1) The law & scope
2) Purpose of impeachment
3) Methods of impeachment
4) Leave & rationale for leave
5) Determination for leave
6) Impeachment by way of proof of inconsistent former statements
7) Right to explain material discrepancy
8) proper time to make ruling
9) effect of impeachment
10) recent application
IMPEACHMENT PROCEEDINGS
Purpose of impeachment
1) DSAI v PP:
- to call into question the veracity of a witness by means of evidence proving that the witness is unworthy of belief;
2) Kwang Boon Keong Peter v PP:
- To undermine his credibility by showing that his testimony in court should not be believed because he is of such a character and moral make-up that he is one who is incapable of speaking the whole truth under oath and should not be relied on.
IMPEACHMENT PROCEEDINGS
Methods of impeachment
Pathmanabhan Nalliannen v PP:
By virtue of S.155, the credit of a witness may be impeached by:
- Evidence from other persons;
- Proof that the witness has been bribed;
- Proof of inconsistent former statements made by him.
S.145(1) provides that:
- a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved;
- but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
IMPEACHMENT PROCEEDINGS
Leave & rationale for leave
1) Leave requirement - Krishan Marimuthu v PP:
- the counsel would need to obtain leave from the judge to commence impeachment proceeding against a witness.
2) Rationale for leave - Lim Young Sien v PP:
- The need for leave to cross-examine a witness on his previous inconsistent statement is to prevent precious judicial time from being wasted unnecessarily.
IMPEACHMENT PROCEEDINGS
Determination of leave
Ong Joo Chin:
- In determining whether leave should be granted, a copy of the witness’s former statement with the relevant inconsistent part marked or highlighted would be given to the judge;
- The judge would need to decide whether there are serious and material discrepancies between the witness’s testimony in court and his former statement.
- If there is no serious discrepancy or if the differences are minor, leave would not be granted so that no judicial time is wasted.
IMPEACHMENT PROCEEDINGS
Impeachment by way of proof of former inconsistent statement
1) Proving of former statement - Krishnan Marimuthu v PP:
- The former statement should be proved through the person to whom the relevant statement was made and/or by whom it was recorded;
- if the statement was reduced into writing, the original writing itself should be produced;
- non-availability & failure to produce the original writing should be accounted for before an admissible copy of it could be tendered in court.
2) Evidentiary value of the former statement - PP v Lo Ah Eng:
- The former statement of the witness cannot be substituted for the evidence in court which is sought to be disbelieved.
- It can only be used to destroy or contradict his evidence in court.
IMPEACHMENT PROCEEDINGS
Meaning & types of differences
Muthusamy v PP:
- minor differences: not amounting to discrepancies;
- apparent discrepancies;
- serious discrepancies;
- material discrepancies.
IMPEACHMENT PROCEEDINGS
Right to explain material discrepancy
1) Krishnan Marimuthu:
- The second limb of s. 145(1) EA requires the party who conducts the impeachment to draw the witness’s attention to the inconsistent part of his statement so as to give him an opportunity of either explaining away the inconsistent part or correcting his evidence so as to remove the inconsistency.
2) Dato’ Mokhtar Hashim:
- Once the making of the former statement is either admitted or proved, the two conflicting versions must be explained to the witness, preferably by the court and a fair and full opportunity must be given to the witness to explain the discrepancies.
It is the witness’s right to explain the contradiction.
If his explanation is accepted, then his credit is saved though there may still be doubt as to the accuracy of his memory.
