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Evidence > Evidence > Flashcards

Evidence Flashcards

1
Q

the bedrock of Sri Lankan judicial process is honesty of witnesses

Wickramesooriya v Dedoleena and others

A

tests were introduced
1. probability
2. consistency
3. promptness
4. interestedness
5. belatedness
6. corroboration

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2
Q

Tudor Perera v AG

A

when an interested witness tries to conceal the truth, such evidence shall be scrutinized with care

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3
Q

probability/ improbability

cases

consider the truth and probability of the witness even though the witness is convincing
an improbable story could attract suspicion

A

ishawari prasad v mohammend

interested witness, whether the evidence has been shaken in the cross-examination, ring of truth

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4
Q

relative possibility of defence story, that might sometimes seem more probable
what are the factors

A
  1. ability and opportunity to observe
  2. firmness of witness memory
  3. where the witness changes his testomony during examination in chief and cross examination
  4. whether the testimony is unreasonable, unlikely and improbable
  5. whether the witness has a motive to lie
  6. evidence is consistent with the probability attached to it
  7. actually saw the incident and was present at the scene
  8. did the witness pay attention to the scene
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5
Q

light

cases

A

Machli singh v state of punjab

living without electricity, eyes get conditioned, witness had seen the incident through latern light not electric bulb

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6
Q

regina v turnbull and others

A

circumstances in which the witness saw example
did witness have accused under observation,
at what distance,
in what light,
was observation impeded by traffic,
has witness seen the accused before,
how often,
if occassionaly any reason to remember

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7
Q

voice

cases

A

kiripal singh v state of uththarath pradesh

recognizing someone by voice can be bit risky if unfamiliar, if known before or have met before okay

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8
Q

consistency - inter se and per se

cases

if there is no consistency that means that the person is not speaking the truth
mark contradictions and omissions

A

thanthitrige piyasena v bribery commissioner

when there are material contradictions inter se, court reluctant to act on that testimony

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9
Q

woodroffe and Amir Ali

law of evidence 18th edition

A

there is no hard and fast rule in the appreciation of evidence, it is a matter of fact

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10
Q

promptness

cases

promptness of making the statement to police officer, grama sevaka, doctor or even to a neighbour
rationale - prompt statements are untained
if there is a delay then the reasons should be given

A
  1. Ajith Samarakoon v republic
  2. sumanasena v ag
  3. jayawardene and others v state
  4. bandara v the state
  5. dayananda lokugalappaththi v state
  6. anthony alias bakthavatsalu

  1. circumstances which can explain the delay
  2. cogent reasons, it is desirable if can make promptly because of the opportunity of fabrication, therefore it is the duty of the state cousel to mark the time of first complaint and if delayed the reasons
  3. 1989 (incident), 1995 (first complaint) by 1991 the condition has been imporved
  4. threatning the accused
  5. police said that abductted is at the sevanagala camp and no need to make a complaint
  6. victim of sexual abuse unlike western countries, victims of asian countries are reluctant
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11
Q

test of demeanor

cases

age, education, social background, lack of interest and memory and concentration, passage of time, intelligence level, cannot stand strength of cross-examination

A
  1. Ag v mary theresa
  2. faad v brown and company limited
  3. alwis v piyasena fernando
  4. martin fernando v ip minuwangoda

  1. credibility is a question of fact and law, trial judge has the opportunity to observe the demeanor
  2. priceless advantage
  3. a trial judge who has the opportunity to see the
    demeanor, not to be lightly disturbed by an appeal
  4. appallent court is not absolved from the duty of testing evidence extrinsically and intrinsically, however decision of a magistrate on questions like demeanor are difficult to be decided
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12
Q

why do you cross-examine witnesess?

A
  1. To ensure accoracy and completness of testimony
  2. to shed light on the credibility of direct testimony
  3. to bring out additional facts
  4. to test the credibility of statement made in examination in chief
  5. to impeach the credibility of a witness
  6. in cross examination the other party is given an opportunity to raise any other matter underlying the evidence (defences)
  7. otherwise it means that the defence is accepting the prosecution version
  8. to point out weaknesses in a witness testimony
  9. the points not cross-examined deemed to be admitted

Ajith Samarakoon v AG
Nalaka Kumara Thisara v AG
evidence not challenged and impunged in cross-examination are considered admitted

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13
Q

rules and regulations relating to cross- examination

A
  1. indecent and scandalous questions - section 151 - unless they are relating to fatcs in issue or matters needed to determine whther there is a fact in issue
  2. insulting or annoying questions - section 152 - although proper in itself appears to the court needlessly offensive
  3. questions without reasonable grounds - section 149
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14
Q

3 Cs for cross -examination

A
  1. commit to the statement
  2. confront with inconsistent statements
  3. complete the impeachment
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15
Q

who is a credible witness?

A

truthful testimony at court
trustworthiness
accuracy
consistent
not open to any suspicion
more likely to be true compared to a discredited witness
internal contradictions and discrepancies are not to be considered if it does not go to the root of the matter

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16
Q

how do you impeach the credibility of a witness?

A

by cross examination
making contradictions and omissions

section 137 - 144

17
Q

how to mark contradictions

A

the steps
AG v Pottanaufer and Others - when faced with a contradiction the court has to bear in mind the nature and significance of the case

sections - 145, 146 and 155 (c), 110 (3)

18
Q

omissions

A

cannot be expected to say everything in the police statements which she did in the court
cannot mark omissions can only draw the attention of the courts
if omission relates to a police statement then the police officer can be questioned

19
Q

why contradictions and omissions occur

reasons, different types of information, duty of trial judge

A

not entitiled to have copies, so after years, memory problems
prosecutor cannot have consultations with the lay witnesses, only with the police
fear to give evidence
police do not record correct statements
deliberately lying

court has to decide whther material or not, 1st information, and other infromation difference and the duty of the trial judge

20
Q

divisibility of credibility

A

kankanamlage Wijith Samantha v AG - if the truth can be seperated from the falsehood
once a liar, always a liar do not apply
it is the duty of the judge to see the part that is true

Evidence (3 decks)

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