Chapter 14 - Impeachment Proceedings

Question 1

IMPEACHMENT PROCEEDINGS

Overview

Answer 1

1) General principles on impeachment
2) Modes & general procedures of impeachment
3) General procedures for impeachment
4) Prosecution impeaching own witness
5) Prosecution impeaching accused
6) Defence impeaching prosecution witness
7) Effect of impeachment
8) Cross-examination of hostile witnesses

Question 2

GENERAL PRINCIPLES ON IMPEACHMENT

Overview

Answer 2

1) Purpose of impeachment
2) When is impeachment relevant
3) Provisions relevant for impeachment
4) Impeachment & cross-examination

Question 3

GENERAL PRINCIPLES ON IMPEACHMENT

Purpose of impeachment

Answer 3

1) DSAI v PP (FC, 2015):
- to call into question the veracity of a witness by means of evidence proving that the witness is unworthy of belief
2) Kwan Boon Keong Peter v PP:

• to undermine a witness credibility;
• done by showing that his testimony in court should not be believed because he is incapable of speaking the whole truth under oath and should not be relied on.

Question 4

GENERAL PRINCIPLES ON IMPEACHMENT

When is impeachment relevant

Answer 4

1) Material discrepancies - Muthusamy v PP:

• when there is some material discrepancies.
• when there is unexplained contradiction, i.e. material discrepancies which are not explained.

2) Meaning & scope of minor differences - Muthusamy v PP:

• differences in interpretation & the way a statement is taken, differences in recollection.
• a mere omission.
• no apparent irreconcilable conflict between the two statements on any point material to the issue.
• when there is minor difference, impeachment is IRRELEVANT.

Question 5

GENERAL PRINCIPLES ON IMPEACHMENT

Provisions relevant for impeachment

Answer 5

Pathmanabhan a/l Nalliannen v. PP:

Three methods under S.155 EA:

• (a) evidence of other person
• (b) proof that he has been bribed
• (c) proof of former inconsistent statement

Question 6

MODES OF IMPEACHMENT

Overview

Answer 6

1) The law
2) Using testimony of independent witness
3) Proof that the witness has been bribed
4) Proof of former inconsistent witness

Question 7

MODES OF IMPEACHMENT

The law

Answer 7

S.155 EA

Question 8

MODES OF IMPEACHMENT

Using testimony of independent witness

Answer 8

1) The law:
- S.155(a)
2) Application - Dr. K Shanmuganathan v Periasamy Sithambaram Pillai:
- Under s.155(a) the credit (credibility) of a witness can be injured by calling any other witness to the box to testify that from his knowledge, the first-mentioned witness is unworthy of credit.

Question 9

MODES OF IMPEACHMENT

Using testimony of independent witness

Answer 9

1) The law:
- S.155(a)
2) Procedures - Dr. K Shanmuganathan v Periasamy Sithambaram Pillai:
- Under s.155(a) the credit (credibility) of a witness can be injured by calling any other witness to the box to testify that from his knowledge, the first-mentioned witness is unworthy of credit.

Question 10

MODES OF IMPEACHMENT

Using proof of previous inconsistent written statement

Answer 10

1) S.155(c):

2) S.145:

Question 11

MODES OF IMPEACHMENT

Using proof of previous inconsistent written statement

Answer 11

S.155(c)

Question 12

IMPEACHMENT USING PROOF OF INCONSISTENT STATEMENT

Overview

Answer 12

1) Scope of previous inconsistent statement
2) Adducing previous inconsistent statement
3) Procedures

Question 13

IMPEACHMENT USING PROOF OF INCONSISTENT STATEMENT

Scope of previous inconsistent statement

Answer 13

1) S.112 statements - S.113(2) CPC:

• Any statement recorded pursuant to S.112 may only be used during the course of trial to impeach the credibility of the witnesses (except the accused if he is called as a witness).
• This right can be invoked by the prosecution as well as the defence.

2) FIR & arrest report - Pathmanabhan Nalliannen v PP (FC, 2017):
- The term “statement” in s. 155(c) of the EA is comprehensive enough to include first information reports made under s. 107(1) of the CPC and also police reports made after police investigation has already commenced (arrest report) as in the present case.
3) Recent - Zaliman Zakaria v PP (CA, 2020):
- By virtue of S.145 & 155, there is no requirement for a former statement of a witness to be voluntarily made for the purpose of an impeachment proceedings.

Question 14

IMPEACHMENT USING PROOF OF INCONSISTENT STATEMENT

Adducing previous inconsistent statement

Answer 14

Krishnan Marimuthu & Anor v PP:

• 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.
• its non-availability should be accounted for before an admissible copy of it could be tendered in court

Question 15

IMPEACHMENT USING PROOF OF INCONSISTENT STATEMENT

Procedures

Answer 15

1) The law:
- S.145(1)
2) Withdraw attention - Krishnan Marimuthu & Anor v PP:

• 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;
• This is to give him an opportunity of either explaining away the inconsistent part or correcting his evidence so as to remove the inconsistency.

3) Must give witness right to explain contradiction - Dato’ Mokhtar Hashim v PP:

• 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 & he must be given opportunity to explain.

4) Possible outcome - Dato’ Mokhtar Hashim v PP:

• If the witness explanation is accepted, then his credit is saved though there may still be doubt as to the accuracy of his memory.
• Even if the court does not accept the witness’s explanation, it should not result in an immediate order of impeachment but instead, his evidence should be considered as a whole with the rest of the evidence at the end of the relevant stage of the case.

5) Proper time to make a ruling - Dato’ Mokhtar Hashim v PP:
- Proper time to make a ruling is at the case (depends on which stage of the proceedings impeachment proceeding is sought for).

Question 16

PROSECUTION IMPEACHING OWN WITNESS

Overview

Answer 16

1) When

2) Procedures

Question 17

PROSECUTION IMPEACHING OWN WITNESS

When

Answer 17

• prosecution case, during examination-in-chief or re-examination.
• if the PW has ‘turned turtle’, PO is required to inform the court of his intention to impeach the witness.

Question 18

PROSECUTION IMPEACHING OWN WITNESS

Procedures

Answer 18

1) Show
2) Dispute or admit
3) Opportunity to explain
4) Ruling at the end of case.

Question 19

PROSECUTION IMPEACHING ACCUSED PERSON

Overview

Answer 19

1) When
2) Statement permissible
3) Procedures

Question 20

PROSECUTION IMPEACHING ACCUSED PERSON

When

Answer 20

Ip Ying Wah v PP:

• only possible at the defence stage where the accused has elected to give evidence on oath.
• if the accused elect to remain silent or make an unsworn statement, there is no possibility of cross-examining or even impeachment.

Question 21

PROSECUTION IMPEACHING ACCUSED PERSON

Statement permissible

Answer 21

1) PP v Ten Teng Choi:
- only the statements which were admitted during P’s case are permissible:
2) cf. PP v Wong Yee Sen:
- all statements are permissible, whether or not it was admitted during P’s case.
3) S.113(2) & (3) DDA:
- no statements made by accused from S.112 is permissible.
4) S.37A DDA:
- statements made by accused, whether amounts to confession or not, is permissible.

Question 22

PROSECUTION IMPEACHING ACCUSED PERSON

Procedures

Answer 22

1) Show
2) Dispute or admit
3) Opportunity to explain
4) Ruling at the end of case.

Question 23

DEFENCE IMPEACHING PROSECUTION WITNESS

When

Answer 23

• application would usually arise during cross-examination of PW by the defence.

Question 24

DEFENCE IMPEACHING PROSECUTION WITNESS

Procedures

Answer 24

1) defence counsel would have to mark out or underline those parts in the statement which are alleged to have been materially contradicted following the guidelines in Muthusamy v PP.
2) where the court has ruled that the alleged contradictions are material, impeachment proceedings may proceed.
3) the defence counsel then show to the PW the statement in question and ask him whether he admits making it.
4) if he admits, the statement will be marked as an exhibit.
5) if it’s being disputed, a trial within a trial will be held.
6) the witness must be given an opportunity to explain the difference.
7) he must also be reminded of what he has said in oral testimony confronted with contradicting passages.
8) having heard the witness’ explanations, the court should continue the trial and allow the witness to be re-examined and call other PW.
9) it is only at the close of prosecution case that the court will rule on the credit of such witness.

Question 25

CROSS-EXAMINATION OF HOSTILE WITNESSES

Purpose

Answer 25

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.

Question 26

EFFECT OF IMPEACHMENT

Credibility destroyed & evidence rejected altogether

cf.

below

Answer 26

1) PP v Munusamy:

• Upon impeaching the credit of a witness, his evidence becomes worthless.
• If the two are so different on essential points that the court cannot accept his evidence, then he is discredited.
• If he is the only witness to that fact, the fact is not proved and the accused may be acquitted in consequence.
• It is for the PP to decide whether in such a case the witness should be prosecuted for perjury.

2) Mathew Lim v Game Warden, Pahang:
- Once his credit is impeached, his evidence becomes worthless.

Question 27

EFFECT OF IMPEACHMENT

May still consider some of the evidence

Answer 27

PP v Mohd Ali bin Awang & Ors:

• the court is in a position to scrutinize the whole of the evidence of the witness to determine which aspect might be true and which shall be disregarded.