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BPTC Law Notes Criminal Evidence Notes

Rules On Examination Of Witnesses Notes

Updated Rules On Examination Of Witnesses Notes

Criminal Evidence Notes

Criminal Evidence

Approximately 176 pages

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Syllabus 13: Rules on Examination of Witnesses

Examination-in-Chief

Examination of the witness by the party calling him

Objective: to elicit from witness evidence supportive of party’s case

Must be conducted in accordance with the exclusionary rules of general application, eg. rules on hearsay, opinion and character of accused

Court may also ask a witness questions

  • Where accused is not represented, court may ask any question necessary in the interests of the accused: CrimPR rr 24.4(6) (magistrates’ court) and 25.11(6) (Crown Court)

Five specific rules governing examination-in-chief:

  • Rules requiring prosecution and defence to call all of their evidence before the close of their case

  • Leading questions

  • Refreshing memory

  • Previous consistent or self-serving statements

  • Impeaching the credit of one’s own witness

  1. Leading Questions

General rule: witness may not be asked leading questions in EIC

  • Leading questions: questions framed in such a way as to suggest the answer sought or to assume the existence of facts yet to be established

  • Rationale: leading questions suggest to jury that witness is merely agreeing with facts provided by counsel, so effectively it is not witness’ own recounting of evidence, but counsel’s

But if leading questions are asked, the evidence is still admissible

  • Though opposing counsel can say in summing up that the evidence is highly suggestive and therefore less weight should be attached to it

Though evidence elicited with leading questions are admissible, but the weight attached may be substantially reduced: Moor v Moor [1954] 2 All ER 458

Exception to general rule:

  • In the interest of justice, at discretion of judge

  • To identify object or person in court (Watson [1817])

  • On formal and introductory matters (e.g. name, occupation, address)

  • Other facts which are not in dispute, or which are merely introductory to questions about facts which are in dispute (Robinson [1897])

  • Witness is treated as hostile

  1. Refreshing Memory

Initially, common law rules on refreshing memory is strict; liberalised by CJA 2003, s 139(1)

s 139(1): a witness, in the course of giving oral evidence, may refer to a document in order to refresh his memory on two conditions:

  • (a) that he gives evidence that the document records his recollection at the time he made it; and

  • (b) that his recollection at that time is likely to have been significantly better than at the time of his oral evidence

    • A matter of assessment for judge, not witness: Britton [1987] 2 All ER 412

    • Normally (b) is assumed if document used is a witness statement made at police station

    • In practice, this the two requirements are assumed unless indicated otherwise factually

‘Document’ is defined in s 140 as anything in which information of any description is recorded, but not including any recordings of sounds or moving images

  • s 139(2): provides for refreshing of memory from a transcript of a sound recording

  • Document must have been prepared by the witness himself or another (provided that witness verified the document): Lau Pak Ngam v R [1966] Crim LR 443

s 139(1) applies to any person given oral evidence

  • Includes accused: Britton [1987] 2 All ER 412

Application normally made by advocate, and can be made ‘at any stage’ in the criminal proceedings (s 139)

  • But where it is in the interests of justice to demand it, judge can suggest that any witness refresh memory: Tyagi (1986) The Times, 21 July 1986, per Ralph Gibson LJ

  • Trial judge has discretion to refuse application under s 139 even if statutory conditions are met: McAfee [2006] EWCA Crim 2914

  • But in making application, consider the effect of memory refreshing on witness’ credibility and weight attached to evidence

However, conditions for memory refreshing set out in s 139 only apply when witness is giving evidence in witness box

  • Witnesses can refresh memory from a statement prior to going into witness box: Richardson [1971] 2 QB 484

  • But in refreshing memory before going into box, where many witnesses are involved, discussions between witnesses should not take place, nor should statements of proofs or evidence be read to witnesses in each other’s presence: Skinner [1994] 99 Cr App R 212

    • Thus, incumbent on prosecuting authorities and judges to ensure that witnesses are informed that they should not discuss cases in which they are involved: Shaw [2002] EWCA Crim 3004

    • Where it appears that discussions have taken place, each case dealt with on its own facts

  1. Previous Consistent or Self-Serving Statements

General rule: witness may not be asked about a previous oral or written statement made by him and consistent with his evidence, and evidence of previous statements may not be given by other witnesses (Roberts [1942] 1 All ER 187, Larkin [1943] KB 174)

  • Essentially, evidence of previous statements as evidence of accused’s consistency is inadmissible

  • Rationale (per Roberts at p 191): such evidence is easily manufactured and of no evidential value; fact that accused has said the same thing to someone else on a previous occasion does not confirm his evidence

Applies in EIC, XX, RX

  • No exception to effect what where counsel XX to show inconsistencies, witness can be RX to show consistency: Beattie [1989] 89 Cr App R 302

  • But court has residual discretion in interests of justice to allow RX t show consistency, in ensuring the as a result of XX, jury is not positively misled as to the existence of some fact or the terms of an earlier statement: Ali [2004] 1 Cr App R 501

Exception to general rule:

  • If victim of sexual offence/rape makes a voluntary complaint shortly after the alleged offence, the person to whom the complaint was made may give evidence on behalf of P of the particulars of the complaint to show consistency of conduct of complainant’s evidence and as evidence of negative consent: Lillyman [1896] 2 QB 167

  • CJA 2003, s 120(4): a previous statement by the...

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