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Topics 5 - 6 - Cross Examination

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  L WB 432 S ARAH F YNES -C LINTON  T OPIC 5   &   6   –   C ROSS E XAMINATION  P AGE 1 of 17 P HASE C ROSS E XAMINATION   O BJECTS OF C ROSS E XAMINATION   O BJECTS O F C ROSS -E XAMINATION   To obtain evidence to support own case. To qualify, weaken or destroy evidence in chief. Where necessary, to attack the credit of the witness.    nb s 16 which allows questions re previous convictions of the witness.    however if the witness is the accused, s 15 must be complied with. C ROSS -E XAMINATION -V-   E XAMINATION I N C HIEF :    2 immediate differences: (1)   The general prohibitions on asking leading questions - leading questions MAY be asked: McClure v Mitchell .    BUT note: despite the cross-examiner being able to ask leading questions, questions which make unadmitted assumptions may not be put.    Nor questions which misstate the effect of evidence given earlier. (2)   Questions w hich attack a witness‟s credit.   C REDIT   A witness may be asked not only as to facts in issue, or directly relevant thereto, BUT ALL questions which though otherwise irrelevant, tend to impeach his or her credit. Note that, in criminal cases, a trial judge may limit the prosecution in regard to its cross examination of the accused (and this ruling potentially extends to defence witnesses): R v Chin  One reason why it is not fair to the accused to be cross examined on matters (of guilt) not raised in the p rosecution‟s case is that, in deciding whether to give evidence or not, the accused expected only to be cross examined on the case presented by the prosecution, not entirely new matters: Biddle v The Queen   Previous Convictions:    s 16 QEA allows Counsel to cross examine a witness regarding previous convictions, and if they deny a conviction, to prove it. s 16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.   Limitations: QEA - section 20 & 21 - seek to restrain cross-examination as to credit on remote matters or by way of questions that are scandalous or offensive S 20 QEA –  Cross Examination as to Credit Judicial discretion re whether or not witness compelled to answer question    The question will be disallowed if matter:    is so remote in time, or      of such nature an admission of truth wouldn‟t materially affect credit of witness    L WB 432 S ARAH F YNES -C LINTON  T OPIC 5   &   6   –   C ROSS E XAMINATION  P AGE 2 of 17 S 21 QEA –  Improper Questions Entitles a court to disallow a question if the court considers that it is an improper question: (1) The decision whether a question is improper allows the court to take into consideration: (2)    any mental, intellectual or physical impairment of the witness: (a)    or any other matter about the witness the court considers relevant, including age, education, level of understanding, cultural background or relationship to any party in the proceedings: (b) In (4), improper question is defined as a question that uses inappropriate language, or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive. Where questions deliberately insulting, annoying or scandalous, judge has duty to forbid question. Making an Objection: Objection Your Honour, counsel is asking unnecessarily annoying, intimidating or repetitive questions, and they should, in my respectful submission, be disallowed pursuant to s 21 of the QEA.   s 15A QEA –  Disallows questions re convictions which are remote in time 15A Questioning of witness as to certain convictions  A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence-- (a)   the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986; and (b)   in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding; unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury. s 15 QEA –  Accused giving evidence in his/her own defence provides for cross examination on previous convictions that aren‟t the subject of the trial, only in exceptional circumstances Admissibility: The usual rules of admissibility apply on cross-examination, eg., the hearsay rule. L EADING Q  UESTIONS   Leading questions may, in general, be asked. But where they will not be allowed: Mooney v James allowance is based on the assumption that the W’s partisanship plus the circumstances that he is being Questioned by an adver  sary, will produce a state of mind what will protect against suggestibility If W show bias towards the party against who he’s called, direct leading Questions may as a matter of discretion be forbidde n Judge must give his reasons for disallowing leading questions D UTIES O N C OUNSEL I N C ROSS E XAMINATION   Counsel has a duty not to pursue irrelevant or fruitless lines of cross-examination: Wakely and Bartling   But also note: the trial judge has a duty not to unduly restrict, ie must allow counsel to develop lines of examination  L WB 432 S ARAH F YNES -C LINTON  T OPIC 5   &   6   –   C ROSS E XAMINATION  P AGE 3 of 17 Wakeley and Bartling (1990) The accuseds were charged with drug offences. 4 police searched their house and found heroin in one of the shoes of the accused. One of the police involved in the search died of a heroin overdose that night. It was the subject of a ruling by the trial judge that the defence could not pursue cross examination about the death of the police man. On appeal it was allowed because they recognized that a trial judge has to exercise a certain amount of restraint and recognise the above duty The applicants sought special leave to appeal against their conviction on various counts relating to trafficking and possession of heroin. Each applicant complains of the trial judge’s refusal to allow cross -examination into the death of a detective where the blood of the deceased contained opiates and the possible inference was open that he had access to illicit drugs such that the investigation he led against the accused persons may have been tainted. HELD:   A trial judge must abstain from too ready an intervention to cut off lines of cross examination Some leeway should be allowed to counsel to perform his duty, where warranted, of testing the evidence given by an opposing witness. Only where counsel’s discretion is not being properly exercised s hould the judge intervene. R v Chin  (1985) Cross examination not confined to matters led in chief. No reason why Crown should not lead in cross examination evidence which relates solely to its own cases. Judge retains discretion to prevent unfair cross-examination . Generally unfair for Crown to raise some entirely new matter affirmatively probative of guilt which hadn’t been led at commit tal or in chief, unless the accused had been given prior notice. BUT there may be matters peculiarly in the knowledge of an accused which the prosecution cannot be precluded from establishing in cross-examination if the accused goes into the witness box . GIBBS CJ & WILSON J:   A cross-examiner is entitled to ask questions to establish matters relevant to issues whether or not the witness has deposed to such matters in his examination in chief (that is questions put in cross examination are not restricted to matters raised in examination in chief). The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair. In general, it would be unfair to raise, (re: criminal cases) in cross-examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution’s case in chief, unless the accused had been given prior notice of such matter. DAWSON J: There is no requirement that notice be given of the evidence which the prosecution intends to attempt to elicit during cross-examination and if the defence is alerted by notice to the fact that the prosecution intends to attempt to prove some matter by additional evidence, the notice will almost certainly refer to the calling of additional evidence in the prosecution case rather than during cross-examination. Nevertheless, such a notice may be of significance in determining whether questions asked during cross-examination constitute an unfair attempt to elicit evidence for the first time at that stage. It may be sufficient to alert the defence to some matter upon which the accused or his witnesses may be questioned if they are called to give evidence.  All of these considerations, and no doubt others to which I have not adverted, will bear upon the exercise by a trial judge of his discretion to disallow cross-examination by the prosecution for the purpose of adducing evidence which could and should have been tendered during the presentation of the prosecution case. Necessarily, the discretion is not as confined, or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply when only exceptional circumstances will justify the granting of the application. Note: ss 21L –  21S QEA  regarding cross examination of protected witnesses.  s 4 Criminal Law (Sexual Offences) Act 1984  regarding improper subject matter for the cross examination of the victim of a sexual offence.   C ROSS -E XAMINATION A S T O C REDIT   G ENERAL R  ULE : CREDIT means that - “if what is insinuated is admitted by [the witness] that may suggest that he is not a man to be believed upon his oath   - Wren v. Emmett Constructions    L WB 432 S ARAH F YNES -C LINTON  T OPIC 5   &   6   –   C ROSS E XAMINATION  P AGE 4 of 17    McCormick (academic) has identified 5 main lines of attack to a witness‟s credibility:   (1)   by proving that the witness on a previous occasion has made statements inconsistent with his present testimony (2)   by specific contradiction, that is by proving that some statement of fact made by the witness is not true, in that the fact is otherwise (3)   by showing that the witness is biased, by reason of emotional influences such as kinship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt (4)   by attacking the character of the witness (5)   by showing a defect of capacity in the witness to observe, remember or recount the matters testified about. PP RRIIOORR  II NNCCOONNSSIISSTTEENNTT  SS TTAATTEEMMEENNTTSS   Previous inconsistent statements of witness (oral OR writing) may be raised & proved as of right, provided content relevant to MAIN FACTS IN ISSUE in case –   s 18 QEA   Section 18  - Proof of previous inconsistent statement of witness  (1)   If a witness upon cross-examination as to a prior inconsistent statement made by him relative to the subject matter of the proceeding and inconsistent with the present testimony does not distinctly admit the making of the statement - proof may be given that the witness did in fact make that statement. (2)   HOWEVER, before such proof can be given, the circumstance of the statement must be mentioned to the witness & he/she must be asked whether they made such statement R  EQUIREMENTS –  S 18(1) 1.   The PIS must be “ relative ”  [has been interpreted to mean relevant] to the subject matter.    thus PIS that is relevant only to the credit of the witness (eg bias) is not admissible under s 18 (see exceptions to the Finality Rule later). 2.   The witness must not “ distinctly admit ”  that they made the statement - interpreted in R v Mursic.     R v Mursic  Accused charged with assaulting and setting fire to his own wife. Wife interviewed by police after the assault. By trial the wife had reconciled with her husband and the Crown did not call her to give evidence. Defence counsel did call her and gave evidence favourable to the accused. In cross examination by the crown it was put to her that she had given this statement to police which was accordance with the crown case. She agreed that she had made a statement to the police but denied that what she told the police was true because she had been ill at the time . Held s 18 permits proof of previous inconsistent statement put to witness upon cross examination if he ‘doesn’t distinctly admit that he has made such statement’   Mrs M never ‘distinctly admitted’ that what was contained in the statement was what she told police.  Justice Connelly    Th e upshot of what she told the jury is that if ‘this or that’ appeared in the statement then she must have said it to the poli  ce; but this after all is an inference she drew from the fact that the statement was in existence rather than from a distinct admission that she made the statement       Therefore the witness had not ‘distinctly admitted’ the statement.  Therefore as she did not distinctly admit to making the statement, it was open to the Crown to prove that she had made it. By virtue of s 18, that statement was admissible of evidence of any fact stated therein of which oral evidence would be admissible. P ROVISO –  S 18(2)
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