Evidence-in-chief

Question 1

What is evidence-in-chief?

Answer 1

Evidence that a party presents in support of their case.

Question 2

What is the purpose of evidence-in-chief?

Answer 2

To present evidence favourable to the version of the party calling the witness.

Question 3

What are the stages of putting evidence on the record?

Answer 3

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

Question 4

What is the legal basis for evidence-in-chief?

Answer 4

Adversarial system.

Question 5

What is the basic rule of evidence-in-chief?

Answer 5

Witnesses are required to give their account in their own words in response to specific questions from the party calling them.

Question 6

How is the basic rule of evidence-in-chief expressed?

Answer 6

No leading questions.

Question 7

What is the essence of the objection to a leading question?

Answer 7

1. The nature of the question asked reduces the weight of the answer given.
2. Guards against prejudice to the other party
3. Value is added to an answer that is not given in response to undue prompting

Question 8

What are the exceptions to the rule against leading questions?

Answer 8

Non-contentious issues such as the witness’s name, address and occupation and matters no longer in dispute etc.

Question 9

What is the general practice for evidence-in-chief?

Answer 9

Witnesses for a party do not sit in court prior to being called to give evidence.

Question 10

What is the deviation from the general practice in criminal procedure?

Answer 10

In terms of section 151(1)(b)(i) of the CPA, the accused shall testify before other defence witnesses unless the court allows otherwise.

Question 11

What happens if an accused initially chooses not to testify but then changes his or her mind at a later stage after other witnesses have testified?

Answer 11

The accused will still be allowed to testify, but the court is entitled to draw any appropriate inference as the fact that the accused was in court during earlier testimony may well detract from the value of their evidence.

Question 12

When is the general practice for witnesses not to be in court prior to giving evidence relaxed?

Answer 12

When dealing with expert witnesses.

Question 13

What are the practical aspects of evidence-in-chief?

Answer 13

1. Style of leading individual witnesses can vary
2. Sequence of questioning
3. Sequence for calling the witnesses
4. Witnesses often require much support
5. Documents as a means of supporting a witness
6. Deciding when enough evidence has been led

Question 14

What did the court hold in S v Msimango?

Answer 14

The right of an accused to challenge evidence in section 35(i) included the right to cross-examine.

Question 15

What did the court hold in S v Nkomo?

Answer 15

The essence of any defence should in principle be introduced during cross-examination.

Question 16

What did the court hold in S v Boesak?

Answer 16

To deny or restrict the right to cross examine is a serious irregularity.

Question 17

S v Le Grange?

Answer 17

Cross examination accords with the right to a fair trial

Question 18

What does section 166(2)(a) of the CPA hold?

Answer 18

The prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.

Question 19

What are the limits to cross-examination?

Answer 19

1. Fairness and courtesy
2. Misleading questions
3. When the court asks what the relevance of a question is ito section 166(3) of the CPA.

Question 20

What did the court hold in S v Omar?

Answer 20

The conduct of the prosecutor during cross-examination was unfair, rude and unreasonable.

Question 21

What did the court hold in S v Kubeka?

Answer 21

Couching questions that appear as statements of fact is misleading.

Question 22

What is the purpose of examination-in-chief?

Answer 22

To allow the witness to present their version of events and provide evidence that supports the party’s case.

Question 23

What are the rules of examination-in-chief?

Answer 23

1. Leading questions not allowed
2. Witness should provide evidence on matters relevant to the issues at hand.

Question 24

What is cross-examination?

Answer 24

The opportunity that the opposing party has to question the witness after examination-in-chief.

Question 25

What is the purpose of cross-examination?

Answer 25

1. To challenge the witness’s testimony
2. Test the credibility of the witness
3. Expose any inconsistencies or weaknesses in their evidence.

Question 26

What is re-examination?

Answer 26

After cross-examination, the party who originally called the witness may conduct a re-examination.

Question 27

What is the purpose of re-examination?

Answer 27

To clarify or explain any issues that arose during cross-examination and to repair any damage that may have been done to the witness’ s testimony.

Question 28

What did the court hold in S v Ramalope?

Answer 28

A party has the right to re-examine on any matter raised during cross-examination even if it was also raised in examination-in-chief.

Question 29

What is the general rule in re-examination?

Answer 29

New matters are not to be introduced during re-examination.

Question 30

What is examination by the court?

Answer 30

When the presiding officer actively questions a witness during trial to clarify issues or ambiguities that may have arisen during the witness’s testimony or to ensure that relevant information is fully explored.

Question 31

What is the statement in Yuill v Yuill?

Answer 31

The judge who himself conducts the examination descends into the arena and is liable to have his vision clouded by the dust of conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.

Question 32

What is required for a witness to be declared a hostile witness beyond unfavourable evidence?

Answer 32

The witness must have an antagonistic animus and deliberately damaging to the party’s case.

Question 33

What is the way to impeach a witness whose evidence is detrimental to the case?

Answer 33

1. Call another witness to contradict the evidence of the witness
2. Proof of prior inconsistent statements
3. Application to declare the witness as hostile to allow for cross-examination of the witness.

Question 34

What factors will the court consider before granting an application to declare a witness hostile?

Answer 34

1. Proof of prior inconsistent statement
2. Nature of inconsistency
3. Demeanour of witness
4. Relationship between witness and parties to the case
5. Possibility of indemnity ito of section 204 of CPA
6. Whether the party was deceived into calling person as a witness