#10379 - Witnesses Examination - BPC Criminal Litigation (formerly BPTC) 2024/2025

EXAMINATION OF WITNESSES

Form of W evidence

Can be:

• general rule: orally in court

• read with agreement of both parties, provided:

  • statement signed by maker

  • statement maker has signed statement of truth

  • copy of statement served on other parties at least 7 days before hearing (s9 CJA 1967)

  • within 7 days of service, no party has objected to statement being read

• given through live link / pre-recorded video

Examination-in-Chief

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 where can lead

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 with each other

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.

Presumption Witness will be permitted to refresh-memory from any document if testifies that:

1. 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 (s139(1) CJA 2003)

Also applies to transcript of sound-recordings.

Document must be:

• made by Witness, or

• made by another and verified by Witness

May use: original, copy or document containing substantially what was in the statement.

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

Exceptions - where W can be asked in XIC about previous consistent statement

Evidence in Rebuttal of Allegation of Recent Fabrication

Can 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 (no need for deliberate dishonesty BUT mere suggestion W is incredible is NOT enough)

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

   3. previous consistent statement rationally tends to answer the attack.

Admissibility

• consistency; and

• as evidence of the matters stated in the statement, of which oral evidence would be admissible. (s120 CJA)

Direction

Judge must give specific direction to jury that it is not independent of the Witness and on its use.

In considering how much weight to attach to statement, should remember that it was made by same person who gave oral evidence of those matters.

Statements made on accusation

Wholly exculpatory - only admissible as evidence of D's reaction when first taxed, consistency of defence (NOT truth of contents)

Mixed or admissions - admissible as truth of the facts stated

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.

Admissibility: as evidence of the matters stated in the statement, of which oral evidence would be admissible.

Evidence of a Previous Complaint by a W

Statement admissible if no threat/promise involved in eliciting the previous statement, provided W indicates:

• to the best of his knowledge and belief, he made the complaint, and

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

Admissibility

• as evidence of the matters stated in the statement; and

• evidence of consistency; and

• lack of consent (if in issue)

Statements forming part of the res gestae

Admissible if so closely associated with some act / event in issue

Admissibility

• as evidence of the matters stated in the statement; and

• evidence of consistency;

Unfavourable & Hostile Witnesses

Rule: Party may not impeach the credibility of own Witness

“Impeach” by:

• asking leading Questions or

• calling evidence to prove prior inconsistent statements, prior discreditable conduct, bad character, previous convictions or bias

May call evidence of prior discreditable conduct where it is relevant (not to impeach Witness) for some other purpose.

Unfavourable Witnesses

“Unfavourable” Witness:

• fails to come up to proof (prove matters he was expected to prove), or

• gives evidence unfavourable to party calling

Party calling may not impeach an unfavourable Witness's credibility, but may call other evidence to prove matters failed to prove.

Hostile Witnesses

Witness who, in opinion of Judge, is “not desirous of telling the truth to the court at the instance of the party calling him.”

May call a Witness even if know likely to be hostile

Application to treat Witness as hostile

Application to judge, generally in jury's presence

Normally made during Examination in Chief (can be made in Re-examination)

Judge should consider:

• demeanour of Witness

• evidence Witness gives and does not give, and

• Witness's willingness to co-operate.

First consider inviting Witness to refresh his memory

Questioning Hostile Witnesses

If leave granted, may (at common-law) ask leading Questions

s3 Criminal Procedure Act 1865

Allows to:

• contradict Witness by calling other evidence, and

• prove a previous inconsistent statement (see below, same rules apply to previous inconsistent statements for hostile Ws and in XX)

Direction

If leave granted to treat Witness as hostile – Jury should be warned to approach his evidence with caution.

Cross-Examination

Right to Cross-examination

Defence have right to Cross-examine all Prosecution Witnesses.

Defence have right to Cross-examine Co-Defendant.

Exceptions - Where Defendant NOT personally (as LIP) allowed to Cross-examine Witness (YJCEA)

“Witness” includes co-Defendant.

• Sexual offences – Defendant charged with sexual offence may not Cross-examine Complainant

• Child Ws – Defendant charged with specified offence may not Cross-examine “protected Witness”

  • “specified offence” = sexual offences, kidnapping, false imprisonment, abduction of children, any offence involving assault/injury/threat of injury

  • “protected Witness” = complainant, Witness U18 (sexual offence) OR U14 (other specified offence) alleged to have witnessed offence .

"Witness" does NOT include co-D

• General discretion of court– Court has general power to give direction prohibiting Cross-examination if:

  • likely to diminish quality of evidence given by the Witness, and

    • consider:

      • any views expressed by Witness on Cross-examination by Defendant,

      • nature of Question likely to be asked,

      • behaviour of Defendant generally and re Witness.

  • it would not be contrary to interests of justice

Procedure where D prevented from cross examining

Court must invite Defendant to appoint a legal rep, if does not and Court decides Cross-examination in the interests of justice, must appoint a rep.

Judge must direct Jury to ensure that Defendant not prejudiced by any inference from prevention of him Cross-examining or appointment of legal rep to do Cross-examination.

Exception - Complainant in sexual case's sexual history

Cannot cross-examine C on sexual history OR adduce any evidence about it, except with leave of court.

D must apply for leave, which will only be given if refusing leave might render a conviction unsafe.

Purpose of Cross-examination

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