#15440 - Rules On Examination Of Witnesses - BPC Criminal Evidence

Syllabus 13: Rules on Examination of Witnesses

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

2. 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

3. 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 witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth

  • Condition 1: that the statement identifies or describes a person, object or place

  • Condition 2: the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings

  • Condition 3:

    • It is an offence to which the proceedings relate

    • That the statement consists of a complaint about conduct which would, if proved, constitute the offence

    • The complaint was not made as a result of a threat or a promise

    • Before statement is adduced, witness gave oral evidence in connection with its subject matter

* Note s 120(7) is a high threshold, and does not codify the common law (O [2006] 2 Cr App R 405

* P assembling evidence to be called at trial should have s 120(4)(b) in mind if intended to rely on a
previous statement as evidence of truth of its contents (especially where video evidence is to stand
as witness’ evidence in chief)

Statements in rebuttal of allegations of recent fabrication

Previous consistent statement of a witness will not become admissible merely because his evidence is impeached in XX: Fox v General Medical Council [1960] 3 All ER 225

But previous consistent statement is admissible in RX to negative the suggestion and confirm witness’ credibility if in XX, if it is suggested to a witness that his evidence is a recent fabrication: Y [1995] Crim LR 155)

• 'Recent' is not in the statute, but is read in because the rule only applies to allegations of fabrication made in oral evidence (ie made during cross examination)

• Nonetheless, this rule has no application where a witness is XX on the basis that his account was fabricated from the outset

  • Unless the effect of XX is in fact to create the impression that he invented his story at a later stage: Athwal [2009] 1 WLR 2430

• Rationale: to uphold the convention that witnesses will always tell the truth in witness box

In R v Oyesiku [1971] 56 Cr App R 240, Karminski LJ accepted Dixon CJ’s statement of the law in Australian case of Nominal Defendant v Clement

• Exception is brought into play where it is suggested in XX that the witness’ account ‘is a late invention or has been recently reconstructed, even though not with conscious dishonesty’

In a trial for a sexual offence in which previous statement amounts to a complaint, it may be admissible to rebut the allegation of recent fabrication notwithstanding that it is inadmissible as a recent complaint: Tyndale [1999] Crim LR 320

CJA 2003, s 120(1) and (2): a statement by a witness admitted as evidence to rebut a suggestion that his oral evidence has been fabricated will also be admissible are evidence of the matter stated

• s 120(2) does not govern admissibility; admissibility of previous consistent statements had to be considered by reference to the principles which had governed that question in the past: Trewin [2008] EWCA Crim 484

• Although s 120(2) refers to fabrication without the qualification of ‘recent’, clear intention was to leave common law requirement of ‘recent’ intact

  • ‘Recent’ is an elastic description; intended to assist in identification of circumstances in which a previous consistent statement...