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Witnesses Examination Notes

BPTC Law Notes > Criminal Evidence Notes

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A more recent version of these Witnesses Examination notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

EXAMINATION OF WITNESSES Examination-in-Chief Rule against leading questions: Prevent Witness being led to give distorted account Evidence elicited is admissible - weight attached may be reduced Exceptions: Introductory matters Undisputed matters Hostile Witnesses Refreshing Memory Before Giving Evidence Witnesses are permitted to have copy of statement before giving evidence to refresh their memory


not to be given to Witnesses in circumstances where can compare

If Prosecution Witnesses have refreshed memory - desirable Defence should be informed. Opposing party entitled to Cross-examine on document used to refresh memory. If Cross-examination extends to matters beyond those which Witness referred to in Examination in Chief - Party calling Witness entitled to put whole document in evidence (so tribunal of fact can see whole document) During Giving Evidence Can be used in Examination in Chief, Cross-examination and Re-examination Available to all Witnesses including Defendant. Document Presumption Witness will be permitted to refresh-memory from any document if (s139(1) CJA 2003)

1. testifies the document records his recollection at the time he made it, and

2. his recollection is likely to have been significantly better at time document made than at time giving oral evidence. Also applies to transcript of sound-recordings. Document must be:


made by Witness, or


made by another and verified by Witness

Contemporaneity - document must be made made:


at time of events, or


so shortly after that events still fresh in memory

Degree of "elasticity" May use: original, copy or document containing substantially what was in the statement. Conditions Da Silva - Witness must indicate that:

1. he cannot now recall events due to lapse of time,

2. made the statement nearer the time and its contents represent his recollection at that time, and

3. he had not read the statement prior to coming into court. Must be no communication with Witness whilst reads statement. Present Recollection Revived Where Witness uses document to refresh memory - ie. to remember detail
- s139 only applies to present recollection revived Past Recollection Recorded Where Defendant has no present recollection, but swears to accuracy of record in document.


eg. where Defendant swears that signature conveys accuracy of document.

document itself admissible under s120(1),(4),(6) CJA 2003 (hearsay - business docs) Application (s139 CJA 2003) Party calling Witness must apply to Judge for Witness to be permitted to refresh memory


or Judge may suggest Witness refreshes memory if in the interests of justice to do so.

Judge's decision whether to permit - may refuse. Inspection document used to refresh memory:


must be made available to other parties to inspect, and


may be used by other parties to Cross-examine

Where document used for Cross-examination If Cross-examination on document:


suggests recent fabrication, or


goes beyond matters in document covered in Examination in Chief

Whole document may be admitted as evidence Admissible evidence of truth of any matters stated in document if:


oral evidence of that matter would have been admissible, and


document made by Witness (not if only verified by Witness) Previous Consistent Statements

Rule: A Witness may not be asked in Examination in Chief about a previous consistent oral/written statement in order to show consistency.


Nor may any party seek to adduce evidence of previous consistent statement through any Witness

Exception: Evidence in Rebuttal of Allegation of Recent Fabrication Mere suggestion that Witness not credible is not sufficient


even if Cross-examination exposes a previous inconsistency/contradiction between evidence and prior statement.

Previous consistent statement only admissible if suggested (ie. in Cross-examination) that Witness recently fabricated his evidence


do not have to suggest conscious/deliberate dishonesty.

Admit previous consistent statement to disprove allegation of recent fabrication. Not limited to previous written statement - may be previous oral statement, admitted by calling the hearer as a Witness. Previous statement can be proved in Re-examination or by calling a Witness to give evidence that it was made. Conditions for Admissibility

1. contemporaneity - statement must have been made at time of event or sufficiently early to be inconsistent with suggestion of recent fabrication

2. Judge must be satisfied that:

1. account given has been attacked on ground of recent fabrication/foundation for such an attack has been laid,

2. contents of previous statement are to same effect as oral evidence being attacked, and

3. having regard to the time and circumstances in which the statement was made, it rationally tends to answer the attack. Previous ID Evidence Witness must (while giving evidence) indicate that:


to the best of his knowledge and belief, he made the statement, and


to the best of his knowledge and belief, it states the truth

Statement must identify or describe a person, object or place. Evidence of a Previous Complaint Statement admissible if no threat/promise involved in eliciting the previous statement. Purpose of Statement Admitted

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