Unit 9 Evidence Relating to Witnesses

Question 1

Explain competence and compellability

Answer 1

A witness is competent if the witness may lawfully be called to testify, and is compellable if, being competent, the witness may lawfully be compelled by the court to testify.

Question 2

What is the general rule as to competence?

Answer 2

All persons are, whatever their age, competent to give evidence (only two exceptions)

Question 3

What are the two exceptions to the General Rule as to competence?

Answer 3

(GR: all persons are, whatever their age, competent to give evidence)

1. A person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood. E.g. some children and persons with a disorder or disability of the mind.
2. Under the second exception, an accused is not competent to give evidence for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

Question 4

What is the general rule as to compellability?

Answer 4

The general rule as to compellability is that all competent witnesses are compellable. There are four categories of exception.

Question 5

What are the four exceptions to the General Rule as to compellability?

Answer 5

(GR: all competent witnesses are compellable).

1. The accused is not a compellable witness for the defence, i.e. for him or herself or a co-accused
2. An accused’s spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused
3. The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats.
4. The fourth relates to bankers

Question 6

Is the accused competent and compellable to give evidence for the prosecution?

Answer 6

No. An accused is not competent as a witness for the prosecution. Under the YJCEA 1999, s. 53(4): ‘A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings)’.

Question 7

In what circumstances can a co-accused give evidence for the prosecution?

Answer 7

A co-accused may only give evidence for the prosecution if he or she ceases to be a co-accused. Section 53(5) provides that: ‘In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason)’.

Question 8

Is the accused competent and compellable for the defence?

Answer 8

Competent, Yes. Compellable, No
The accused is a competent witness for the defence pursuant to the YJCEA 1999, s. 53(1), whereby ‘At every stage in criminal proceedings all persons are… competent to give evidence’. The phrase ‘at every stage in criminal proceedings’ allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence.
The accused is not a compellable witness for the defence. ‘A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application’.

Question 9

Is the Spouse or Civil Partner of the accused competent and compellable.

Answer 9

Competent, Yes. Compellable, yes in respect of specified offences. ONLY IF THEY ARE NOT ALSO CHARGED.
The spouse or civil partner of an accused is competent to give evidence for the prosecution. A spouse or civil partner is competent under s. 53(1) irrespective of whether the evidence to be given will be directed against the accused or any co-accused.
As to compellability, the rule, subject to one exception, is that the spouse or civil partner shall be compellable to give evidence for the prosecution, but only in respect of any ‘specified offence’ with which any person is charged in the proceedings

Question 10

What “specified offences” make a spouse a compellable witness for the prosecution?

Answer 10

a. it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
b. it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
c. it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.

Question 11

What are the principles in deciding whether a child is competent?

Answer 11

(a) In each case, the question under s. 53 is whether the individual witness or child is competent to give evidence in the particular trial. The question is entirely witness or child specific.
(b) There are no presumptions or preconceptions.
(c) The witness does not need to understand the special importance of telling the truth in court and does not need to understand every single question or give a readily understandable answer to every question. Dealing with it broadly and fairly, provided the witness can understand the questions and can also provide understandable answers, the witness is competent.
(d) Questions, of course, come from both sides. If the child is called as a witness by the prosecution, the child should have the ability to understand the questions put by the defence as well as the prosecution and to provide answers to them which are understandable.
(e) Section 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria.
(f) there is no requirement that the witness be aware of his or her status as a witness and that questions of credibility and reliability are not relevant to competence but go to the weight of the evidence and may be considered, if appropriate, on a submission of no case to answer.

Question 12

What are the rules around a child giving sworn evidence?

Answer 12

A witness may not be sworn for this purpose unless the witness has attained the age of 14 and ‘has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.’ it is for the party seeking to have the witness sworn to satisfy the court, on a balance of probabilities, that the witness has attained the age of 14 and has a sufficient appreciation of the matters in question. (any proceedings as such taking place without the presence of the jury.)

Question 13

If a witness is called to produce a document, must they be sworn?

Answer 13

At common law a witness called merely for the purpose of producing a document need not be sworn. The witness, if not sworn, is not liable to cross-examination. However, if the identity of the document is disputed, and must be established, this must be done by sworn evidence.

Question 14

If a witness gives unsworn evidence upon which a conviction is found. Can this be deemed unsafe?

Answer 14

No. Where a witness who is competent to give evidence in criminal proceedings has given evidence unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of the grounds of appeal, by reason only that the witness should have given evidence on oath.

Question 15

Can Justice’s Clerks issue witness summons?

Answer 15

Yes, but not arrest warrants (only Mags)

Question 16

What must the court be satisfied of to issue a witness summons?

Answer 16

(a) the witness is indeed likely to be able to give material evidence or produce a material document or thing;
(b) the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses; and
(c) there is no just excuse for the failure to attend.
Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed.

Question 17

In what 2 ways may a witness summons be served?

Answer 17

(a) by handing it to individual (r. 4.3(1)(a));
(b) by leaving it at, or sending it by first class post to, an address where it is reasonable to believe that the individual will receive it (r. 4.4(1) and (2)(a)).

Question 18

Section 139 CJA – KEY STATUTE (be familiar with wording)

Answer 18

(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—
(a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
(2) Where—
(a) a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at the time,
(b) his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.

Question 19

What is the impact of “out of court” memory refreshing on cross-examination?

Answer 19

If a witness has refreshed his or her memory out of court and before entering the witness-box, counsel for the other side is entitled not only to inspect the memory-refreshing document, but also to cross-examine the witness upon the relevant matters contained therein. If counsel cross-examines upon material in the document from which the witness has refreshed his or her memory, the document is not thereby made evidence in the case; but if counsel cross-examines upon material which has not been referred to by the witness, this entitles the party calling the witness to put the document in evidence so that the tribunal of fact may see the document upon which the cross-examination is based. In this respect, therefore, the rules are the same as those which apply in the case of a witness refreshing his or her memory in the witness-box.

Question 20

In what conditions is the previous complaint of a witness admissible?

Answer 20

• that the witness testifies that to the best of his or her belief he or she made the statement and it is true;
• that the witness claims that an offence was committed against him or her;
• that the offence is one to which the proceedings relate; and,
• that the complaint is about conduct which would, if proved, constitute the offence or part of it.

Question 21

What is the general rule against previous consistent (self-serving) statements?

Answer 21

There is a general common-law rule excluding previous consistent or self-serving statements, sometimes referred to as the rule against narrative, to which there is a range of important statutory and common-law exceptions. Under the rule, a witness may not be asked about a previous oral or written statement made by the witness and consistent with his or her evidence.
The previous statement, which may also be inadmissible as evidence of the facts contained in it under the rule against hearsay, is excluded as evidence of the accused’s consistency.
The general rule applies in examination-in-chief, cross-examination and re-examination. Thus the credibility of a witness may not be bolstered by evidence of a previous consistent statement merely because the witness’s testimony has been impeached in cross-examination, and this remains the case ‘even if the impeachment takes the form of contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion.’ However, the court does have a residual discretion, necessary in the interests of justice, to permit re-examination to show consistency, to ensure that as a result of the cross-examination the jury are not positively misled as to the existence of some fact or the terms of an earlier statement.

Question 22

What are the three exceptions to the general rule against previous consistent (self-serving) statements?

Answer 22

• complaints,
• previous identification and description, and
• statements in rebuttal of allegations of recent fabrication.

Question 23

What are the rules for self-serving statements made on accusation?

Answer 23

If such a statement is wholly adverse to the accused, it may be admitted as evidence of the truth of the facts contained in it. If it is a mixed statement, i.e. a statement containing both inculpatory and exculpatory parts, such as ‘I killed X. If I had not done so, X would certainly have killed me there and then’, the whole statement is admissible.
However, if the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it ‘is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts’

Question 24

What is the General Rule against Impeaching Credit of Own Witness?

Answer 24

The general rule is that a party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness’s bad character, previous convictions, bias or previous inconsistent statements. However, the general rule appears to have no application where evidence of a witness’s bad character is introduced not to impeach the witness’s credit in relation to the testimony, but because it supports some other discrete part of the prosecution case.

Question 25

At what time should an application to treat a witness as hostile be made?

Answer 25

The application to treat a witness as hostile should be made when the witness first shows unmistakable signs of hostility. If counsel for the prosecution has a statement directly contradicting one of their witnesses who gives evidence that he or she is unable to identify the accused, counsel should at once show the statement to the judge and ask for leave to cross-examine the witness

Question 26

What discretion does the judge have in deciding hostility?

Answer 26

The discretion of the judge, however hostile the witness, is absolute and the decision will rarely be open to a successful challenge on appeal.

Question 27

Explain the nature of cross-examination

Answer 27

Cross-examination is the questioning of a witness by (a) the opponent of the party calling the witness or (b) any other party to the proceedings. Thus, as to the latter, an accused has the right to cross-examine a co-accused who has chosen to give evidence (and any witnesses called by the co-accused). This applies not only where the co-accused has given evidence unfavourable to the accused, but also if the co-accused has merely given evidence in his or her own defence.

Question 28

Is an accused in person allowed to cross examine? (no representation)

Answer 28

As a general rule, an accused is entitled to cross-examine in person any witness called by the prosecution. The general rule is subject to a common-law restriction and important statutory exceptions. Concerning the former, a trial judge is not obliged to give an unrepresented accused freedom to ask whatever questions, at whatever length, the accused wishes. ). As to the latter, the YJCEA 1999, ss. 34 to 39, protect three categories of witness from cross-examination by an accused in person:

1. The complainant in a sexual offence case
2. “protected witnesses” in specified offences
3. Any witness that the court thinks their evidence would be diminished by such a XX and it would be in the interests of justice to prohibit it.

Question 29

What 3 categories of witness is an accused in person not permitted to cross examine?

Answer 29

1. The complainant in a sexual offence case
2. “protected witnesses” in specified offences
3. Any witness that the court thinks their evidence would be diminished by such a XX and it would be in the interests of justice to prohibit it.

Question 30

What must the court do if an accused in person is prevented from cross examining a witness by 1 of the exceptions?

Answer 30

Section 38 provides that, where an accused is prevented from cross-examining a witness in person, the court must invite the accused to appoint a legal representative; and that if the accused fails to do so and the court decides that it is in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused, the court must choose and appoint such a representative, who shall not be responsible to the accused. A court-appointed advocate does not have a free-ranging remit to conduct the trial on the accused’s behalf. The advocate’s duty is to cross-examine a particular witness and to ensure that he or she is in a position properly to do so and therefore the duty may include applications to admit bad character evidence of the witness and applications for disclosure of material relevant to the cross-examination. Technically, the role ends at the conclusion of the cross-examination, but if the advocate is prepared to stay and assist the accused on a pro bono basis, the court should not oblige the advocate to leave.

Question 31

What is the object of a Cross Examination?

Answer 31

(a) to elicit from the witness evidence supporting the cross-examining party’s version of the facts in issue;
(b) to weaken or cast doubt upon the accuracy of the evidence given by the witness in chief; and
(c) in appropriate circumstances, to impeach the witness’s credibility.

Question 32

What is the effect of failing to put your case in Cross Examination?

Answer 32

A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict the witness or impeach his or her credit by calling other witnesses, tacitly accepts the truth of the witness’s evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve the witness in that regard.

Question 33

Can evidence not put to a witness in XX be admitted? (i.e. if the case is not put effectively by the advocate)

Answer 33

rC7.2 of the Code of Conduct for barristers in the Bar Standards Board (BSB) Handbook: Evidence to contradict a witness which was not put to him or her in cross-examination may be admitted, provided that the witness is then recalled and cross-examination reopened in order to put the new evidence to the witness

Question 34

Can an accused be cross examined on inadmissible evidence?

Answer 34

In Treacy, a charge of murder, it was held that D had been cross-examined improperly upon certain inadmissible confessions made on arrest and inconsistent with his evidence. It has been said that the principle established in this case, that an accused cannot be cross-examined by the prosecution in such a way as to reveal that the accused made an inadmissible confession, also obtains in favour of any co-accused

Question 35

Define Bad Character evidence

Answer 35

evidence of, or of a disposition towards, misconduct, other than evidence which ‘has to do with the alleged facts of the offence with which the defendant is charged’ or ‘evidence of misconduct in connection with the investigation or prosecution of that offence’

Question 36

What is the rule of finality of answers to questions on collateral matters?

Answer 36

The general rule, based on the desirability of avoiding a multiplicity of essentially irrelevant issues, is that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, i.e. matters which go merely to credit but which are otherwise irrelevant to the issues in the case.
‘The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence — if it have such a connection with the issues that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.’

Question 37

What is required if a witnesses competence is put in issue?

Answer 37

If that competence is put in issue, it need only be demonstrated that the witness can understand questions and give answers that can be understood, competence being ‘witness, trial and issue specific’

Question 38

What is the range of statutory special measures available?

Answer 38

i. screening the witness from the accused;
ii. giving evidence by live link, accompanied by a supporter;
iii. giving evidence in private, available where sex Offences or modern slavery, servitude, forced labour or human trafficking are charged or where there is a concern that the witness may be intimidated;
iv. ordering the removal of wigs and gowns while the witness gives evidence;
v. video recording of evidence-in-chief;
vi. video recording of cross-examination and re-examination where the evidence-in-chief of the witness has already been video-recorded;
vii. examination through an intermediary for a young or incapacitated witness;
viii. provision of aids to communication for a young or incapacitated witness; and
ix. a witness anonymity order, which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure.

Question 39

What protective procedures can be put in place as well as special measures?

Answer 39

• orders for restrictions on reporting and public access to protect a fearful or distressed adult witness’s identity, where such an order is likely to improve the quality of that witness’s testimony or cooperation;
• complainant anonymity in sex offence cases;
• the prohibition on cross-examination by the accused in person of (i) child complainants of or witnesses to sexual Offences, Offences of violence, cruelty, kidnapping, false imprisonment or abduction, and (ii) adult complainants in sexual offence cases; and,
• the use of pre-trial depositions of children or young persons.

Question 40

What are the general eligibility categories for special measures?

Answer 40

• all witnesses under the age of 18 at the time of the hearing or video recording;
• vulnerable witnesses affected by a mental or physical impairment;
• witnesses in fear or distress about testifying;
• adult complainants of sexual Offences, or of Offences (slavery, servitude and forced or compulsory labour and human trafficking); and
• any witness in a case involving a ‘relevant offence’, currently defined to include homicide Offences and other Offences involving a firearm or knife.

Question 41

What must the court consider if a witness requires special measures but does not satisfy the general eligibility criteria?

Answer 41

For witnesses who are not automatically eligible (i.e. those affected by mental or physical impairment or in fear or distress about testifying), the court must determine whether the quality of the evidence would be diminished by the witness’s condition, taking into account any views of the witness, before making a declaration of eligibility.

Question 42

Do adult complainants of sexual offences qualify for special measures?

Answer 42

Yes. But Adult complainants of sexual Offences (s. 17(4)) and witnesses in ‘relevant offence’ cases have an unqualified right to opt out of special measures.

Question 43

What special measures are not available for witnesses eligible only by reason of fear or intimidation?

Answer 43

Testifying through an intermediary and aids to communication

Question 44

How are intermediaries paid for? (special measures)

Answer 44

If the Legal Aid Agency does not authorise payment of the intermediary, then the trial court may direct payment from Central Funds.

Question 45

What should expert reports in relation to the need of an intermediary address?

Answer 45

Expert reports in support of applications for an intermediary appointment should address not only the vulnerabilities of and the difficulties experienced by the defendant, but also the way in which those factors potentially relate to the particular proceedings.