SA13 The Rules relating to the examination of witnesses

Question 1

XIC general rule = non-leading questions.

What are the 3 exceptions?

Answer 1

1) Formal introductory matters (name, address, occupation).
2) Where facts are not in dispute/are introductory to questions about facts that are disputed.
3) Where leave has been given to treat the witness as hostile.

Question 2

Under s139 CJA 2003, what are witnesses allowed to refer to refresh their memory?

Answer 2

A document/transcript.

NOT a moving image.

Question 3

What must a witness state in oral evidence in order to be allowed to refresh their memory?

Answer 3

1) The document records his recollection of the matter at an earlier time.
2) His recollection is likely to have been significantly better at that time.

Question 4

When can an application be made by an advocate for a witness to refresh their memory?

Answer 4

At any stage in proceedings. most commonly in XIC but also in re-examination if conditions under s139 are met.

Question 5

What is the rule regarding previous consistent statements?

Answer 5

Not admissible in XIC, XX or re-X. repetition not taken to affirm truth.

Exception under s120 CJA 2003.

Question 6

For what purposes are wholly exculpatory statements admissible?

Answer 6

Only as evidence of the accused’s reaction when the allegation of criminality is first put to them.

Not admissible as evidence of facts stated.

Question 7

For what purposes are wholly inculpatory statements admissible?

Answer 7

As evidence of the truth of its contents.

Question 8

For what purposes are mixed (partly inculpatory/partly exculpatory) statements admissible?

Answer 8

As evidence of the truth of its contents.

Question 9

Under s120 CJA 2003, under which conditions can a complainant give evidence about previous consistent statements?

Answer 9

1) The statement identifies/describes a person, object, or place.
2) The statement was made by the witness when the matters stated were fresh in his memory, but he doesn’t remember them and can’t reasonably be expected to remember them well enough to give oral evidence of them in the proceedings.
3) The witness is a complainant, and the statement has made a complaint about conduct constituting the offence, which was not made as the result of a threat/promise and the witness has given oral evidence in connection with it.
4) Evidence can be adduced to rebut an allegation of recent fabrication.

Question 10

When will a witness be considered hostile?

Answer 10

Where he demonstrates himself to be not ‘desirous of telling the truth’ to the party calling him.

Question 11

When should an application be made to the judge for leave to treat a witness as hostile?

Answer 11

When the witness first shows signs of unmistakable hostility. Can be at any time during their evidence.

May be prudent to first consider asking the witness to refresh their memory if extreme hostility not apparent.

Question 12

What should a judge take into account when exercising their discretion to treat a witness as hostile?

Answer 12

• Demeanour
• Attitude
• Extent to which witness has cooperated with the party calling him.
• Any previous inconsistent statement.

Question 13

During XX, under what circumstances may a judge limit the advocate ‘putting their case’?

Answer 13

Where the witness is young/vulnerable and risk they will be distressed, fail to understand or be easily misled.

Question 14

Where there are co-accused, what are the rules regarding XX of prosecution witnesses?

Answer 14

Each D is entitled to XX the prosecution, in the order in which their names appear on the indictment.

Question 15

Under which circumstances is unrepresented D not allowed to XX prosecution witness?

Answer 15

a) D charged with a sexual offence is not allowed to personally XX a complainant in connection with that offence/any other offence with which the person is charged in some proceedings.
b) Protected witnesses where D is charged with a specified offence e.g. a child witness.
c) Court has the general power to prohibit the accused from XX a witness in person where the quality of the witness’s evidence is likely to be diminished by such XX and would likely be improved by such a direction, which would not be contrary to the interests of justice.

Question 16

Where an unrepresented D is prevented from XX a witness personally, what happens?

Answer 16

The court MUST invite him to appoint a legal rep.

If he fails to do so, the court must consider whether it is in the interests of justice for the witness to be XX by a court-appointed legal representative whose role is to represent the accused’s interests.

The judge MUST give the jury such warning as he considers necessary to ensure that the accused is not prejudiced by any inference drawn by the accused’s failure to XX the witness in person.

Question 17

What questions may a judge put to a witness during XX?

Answer 17

• Can intervene to clarify matters they don’t understand/think the jury doesn’t understand.
• Where the accused is unrepresented, can ask the witnesses any questions necessary in the interests of the accused.
• Will generally ask questions about matters not touched on in XX after.

Question 18

Previous inconsistent statements. Before proof is given that a witness did make previous inconsistent statement, the circumstances of making the earlier statement must be put to the witness and he must be asked if he made that statement.

If he denies/does not directly admit making the statement, what can happen?

Answer 18

Proof of that statement may be given.

Question 19

Where a witness’s previous inconsistent statement is contained in a written document, must the witness be shown that statement to be XX on it?

Answer 19

No.

But if he adheres to his oral testimony, he may be contradicted and the part of the statement which is inconsistent should be read out.

Question 20

What does the rule of finality relate to?

Answer 20

A witness’ answer to a question about a collateral matter (relating to credibility) is final and the XX party cannot call any further evidence to prove the contrary. Does not mean the advocate need agree with/accept the answer.

Exceptions at common law:
* Previous convictions.
* Bias.
* Disability affecting reliability.

Question 21

What material may be covered in re-examination?

Answer 21

Confined to matters arising out of XX.

New matters only permitted with leave of the judge.

Question 22

If evidence is elicited through a leading question in XIC, how is that evidence considered?

Answer 22

Not inadmissible but the weight attached to it may be substantially reduced.

Question 23

When should witnesses NOT be given copies of their statements?

Answer 23

In circumstances that would enable them to compare accounts. Discussions between witnesses should not take place and nor should statements be read to witnesses in each other’s presence.

Question 24

What is the purpose of cross-examination as to credit?

Answer 24

To undermine their standing in the eyes of the tribunal of fact.

Question 25

To whom does an intermediary owe a duty?

Answer 25

To the court.

Independent of the parties.

Question 26

Should an intermediary be sworn as a witness?

Answer 26

No.

Should also not be asked to provide an expert opinion/testimony or an opinion regarding the reliability of a witness, or as to D’s fitness to plead.

Their role is to assist communication of evidence.

Question 27

Where there is an intermediary, to whom does an advocate put their questions?

Answer 27

Directly to the witness, with the intermediary intervening only where miscommunication is likely to have occurred.

Question 28

Is refreshing memory out of court permitted?

Answer 28

Yes – the conditions on which a witness may refresh his memory while giving evidence in the witness box does not apply to a witness who refreshes his memory from a statement before going into the witness-box.

Question 29

Is a party calling a witness entitled to impeach the witness’ credit by evidence of bad character?

Answer 29

No.

However a party may ‘contradict’ a hostile witness i.e. call other witnesses to prove that which the hostile witness has failed to establish.

Question 30

In a sexual case, where the defence seeks to undermine the credibility of the complainant by XX on her delay in making her complaint, what direction should the judge give the jury?

Answer 30

The judge should direct the jury that, whereas some may complain immediately to the first person seen, others may feel shame and shock and not complain for some time, and that a late complaint is not necessarily a false one.