Evidence - Course of Trial

R v Sims 10 WIR 92

By asking a leading question, state counsel was putting in the mouth of the witness a vital ingredient of the offence of burgalary

State counsel error in R v Sims 10 WIR 92

Asking a leading question regarding the time of the burglary which was then admitted to evidence

Duty of state counsel in questioning

To ensure questions are not leading so evidence comes from the witness.

Problem with leading questions

They put a vital ingredient of the offense in the witness's mouth.

General rule of evidence admissibility

Relevant, non-hearsay evidence is admissible if not more prejudicial than probative.

Are leading questions prohibited?

Yes

Rule against narrative

A general common-law rule excluding previous consistent or self-serving statements.

Application of the rule against narrative

A witness may not be asked about a previous oral or written statement made by him that is consistent with his evidence.

Rv Roberts (1942) 1 AER 187

the defendant was convicted of the murder of a girl by shooting. He asserted that the gun went off accidentally and he told his father that his defence would be accident. The judge did not allow his conversation with his father to be admitted/proved. The court found that the evidence was inadmissible.

Rv Roberts (1942) 1 AER 187 and the rule against self serving statements

The rule is that a person is not allowed to make evidence for himself. It applied to both civil and criminal cases. An accused person is not permitted to call evidence to show that, after he was charged with a criminal offence, he told a number of persons what his defence was going to be, and the reason for the rule was that such testimony had no evidential value. The evidence is said to be inadmissible on the ground that it is irrelevant

Exceptions to the rule against narrative

A range of important statutory and common-law exceptions apply to the rule.

Res Gestae exception (Rule against Previous Self-Serving Statement)

Applies once the statement is contemporaneous and spontaneous (part of the story or circumstances).

Exception to rebut allegations of recent fabrication or invention

An exception to the rule against previous self-serving statements used to rebut allegations of recent fabrication or invention.

Exceptions to the rule Rule against Previous Self-Serving Statement

1. Res Gestae

2. To Rebut Allegations of Recent Fabrication or Invention

Ratten v R (1972) AC 378 Facts

the accuser's wife was shot by the discharge of his gun. He asserted that it was accidental. About the same time, the telephonist received a call from the accuser's house. The voice of a woman was hysterical and sobbing and said, "Get me the police please". The telephonist's testimony was accepted by the court even though they were hearsday under the res gestae exception

Ratten v R (1972) AC 378 on Res Gestae

The court found that it must be for the judge by preliminary ruling to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. There was ample evidence of the close and intimate connection between the statement and the shooting which occurred afterwards. They were closely associated in time and place and forced from the deceased by the overwhelming pressure of the contemporary event.

R v Beattie (1989) 89 CAR 302 Facts

the complainant made two statements to the police alleging a sexual relationship with her father, the appellant, which he denied, she was then cross examined. Her evidence-in-chief differed from the first account given to the police but counsel submitted that the second statement corrected the inconsistencies with the first and that both copies should be made exhibits and submitted to the jury.

R v Beattie (1989) 89 CAR 302 what was held

three exceptions to the general well-known rule that it was not competent for a party calling a witness to put to that witness a statement made by him in order to lend weight to his evidence, but there was no general fourth exception to the effect that where counsel cross-examined to show inconsistencies, the witness could be reexamined to show consistency.

Rv Osborne and Virtue (1973) 1 QB 675

Two women identified the defendants at an identification parade. At trial, one woman said she did not recall selecting anyone in the identity parade and claimed the man wasn't in court. The police officer testified who was picked out. Held: admissible as identification evidence other than in the witness box, since it did not contradict her evidence.

Can you test identification parades

Permissible to test the reliability of identification at trial with a previous identification closer in time to the incident

R v Pearce (1979) 69 CAR 365 at 369

Fairness requires that when there is a long series of questions and answers, interspersed with one or more voluntary statements (otherwise known as self-serving statements), they should all be admissible in evidence.

Rv Storey (1968) 52 CAR 334

Police found a large quantity of cannabis in the defendant's flat. Her statement that it was brought by a man against her wishes was not evidence of the truth of the facts, but only her reactions. As her unsworn statement did not negative the evidence of possession, the judge rightly overruled the submission of no case to answer.

When refreshing a witness' memory from a document WHILE IN COURT what four conditions must be satisfied?

1. Contemporaneity 2. Authorship of witness 3. Production and exhibition if necessary 4. Original

What is the general rule when refreshing memory from a document?

But there can be no general rule that witnesses may not, before the trial, see the statements which they have made at some reasonable period close to the time of the event, which is the subject of the trial.

Ry Richardson (1971) 2 AER 773

Before trial, witnesses were shown police statements made earlier; court held a line is drawn when the witness enters the witness box.

R v Harvey 23 WIR 437 Facts

At a trial for robbery with aggravation where identity was the critical issue, the victim M identified the appellant at an identification parade.

R v Harvey 23 WIR 437 on Refreshing Memory

A witness ought not to be allowed to consult any document to refresh memory unless they have alleged that their recollection of any fact was imperfect.

R v Harvey 23 WIR 437 and Self-Corroboration

Allowing a witness to refresh memory without alleging imperfect recollection offends the rationale of the rule against self-corroboration.

R v Kelsey (1982) CLR 435 on Refreshing Memory

Verification of a memory-refreshing note can be either visual or oral, as long as the witness is satisfied it is accurate while matters are fresh.

R v Kelsey (1982) CLR 435 on Dictated Notes

If a witness dictates a note to another and only hears it read back, another witness must prove the note used in court is the one dictated and read back.

R v Bryant and Dickson (1946) 31 CAR 146

A witness who has kept a record as part of their duty is entitled to look at that record, give evidence that they kept it accurately, and testify that events recorded on a particular day happened as recorded.

Maugham v. Hubbard (1828) 8 B. & C. 14

A witness was allowed to look at an inadmissible receipt to testify they had received the sum specified. Although they had no recollection, seeing it removed doubt. The court held this was sufficient parol evidence of payment since the document was used to refresh memory, not as evidence of payment, and did not require a stamp.

Ewer v Ambrose (1825) 3 B & C 746

If a witness proves a case against the person calling him, the latter may show the truth by other witnesses.

Ewer v Ambrose (1825) on witness credibility and mistake

A party cannot give evidence to show that their witness is not to be believed on oath when they prove the contrary, but may show by other evidence that the witness is mistaken as to the fact.

CB Bahamas Ltd v Arawak Homes (1986) 38 WIR 10 - Core Issue

The plaintiff and the defendant both claim title to the same piece of land, each relying on a documentary title.

CB Bahamas Ltd v Arawak Homes (1986) 38 WIR 10 - Plaintiff's Title

Root of title in a certificate of title granted under the Quieting Titles Act (the Act).

CB Bahamas Ltd v Arawak Homes (1986) 38 WIR 10 - Defendant's Title

Stems from a conveyance, an assignment of an equity of redemption, which ante-dates the plaintiff's conveyance as well as its root certificate of title.

CB Bahamas Ltd v Arawak Homes (1986) 38 WIR 10 - Disappointing Witnesses

Whilst a party to litigation cannot discredit his own witness, if that witness disappoints him that party may still ask the court to reach a finding favourable to him on the strength of other evidence adduced.

Rv. Honevghon [1999| Crim.L.R.221 Facts

a black youth attacked two white youths, one of whom was fatally stabbed. Three witnesses were reluctant to give evidence.

Two gave oral statements to the police, but refused to give written ones. The third signed a witness statement, implicating the accused, but refused to answer questions at the proceedings and maintained that she could not remember anything.

The prosecution was allowed to treat two out of the three as hostile and cross examine them.

Rv. Honevghon [1999| Crim.L.R.221

The court held that there was a conflict between two important principles of criminal law: In the interest of justice, the court must encourage a citizen to perform his duty to assist in the detection of crime and the prosecution of offenders but the court also has a duty to ensure that evidence should not be led or statements made were not outweighed by the prejudice which they could cause to the defendant. The judge had the discretion to allow a witness to be cross examined about a previous statement whether the adverse witness professed to have no recollection or departed from his proof in favour of the other side. A witness who simply refused to speak at all which might be dealt with under contempt of court, where appropriate. It was within the judge's discretion whether he should hold a voir dire.

When may a witness be treated as hostile?

When a witness (1) retracts evidence supportive of the prosecution's case, or (2) testifies that he does not have any recollection but does not give evidence damaging to the case for the prosecution.

Witness refusing to speak completely

A witness who simply refused to speak at all which might be dealt with under contempt of court, where appropriate. It was within the judge's discretion whether he should hold a voir dire.

Section 15H of the Evidence Act Ch 7:02, which concerns the admissibility of inconsistent statements:

1. Where in criminal proceedings a person gives oral evidence and—

he admits making a previous inconsistent statement; or

a previous inconsistent statement made by him is proved b irtue of section 5, 6 or 7, the statement is admissible as evidenc of any matter stated in it of which oral evidence by that person would be admissible.

2. Where in criminal proceedings evidence of an inconsistent statement made by a person is given under section 15D(1)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible."

Norbert Aaron v The State Crim. App. No. S 026 of 2017

Japhet Bennet v The Queen [2018] CC 29 (AI) and the impact of s 15H

Jashier Daniel v Roody Sookdeo (Magisterial Appeal No 66 of 2012)

Provides instruction on the impact of section 15H regarding inconsistent or former statements.

Initial requirement under s 15H for inconsistent statements

Before an inconsistent statement is mentioned, the witness must be asked whether or not they made such a statement before proof of its making is given.

Proper method of addressing a contradictory statement

The witness's attention must be pointedly drawn to the relevant contradictory passage; reading the whole statement is improper, unnecessary, and risks introducing prejudicial matters.

Evidentiary purpose of putting a contradictory statement to a witness

It can be used as evidence that they previously said something contradictory to impugn credibility, though not as evidence of the truth of the facts contained in it.

Hostile witness procedure step (a)

In the presence of the jury, it is put to the witness that they previously made a statement differing materially from or contradicting their testimony.

Hostile witness procedure steps (b) and (c)

If the witness denies the statement, they stand down, and the officer who took the statement proves to the Judge that it was made (without revealing contents).

Hostile witness procedure step (d)

The witness returns to the box, the statement is shown for identification, and their attention is drawn to the part where the contradiction occurs.

Hostile witness procedure step (e)

If the witness agrees that there is a contradiction, that is the end of the matter regarding discrediting their credibility.

Witness persists in denying contradiction

The statement is read into evidence as proof of the fact that the witness made a contradictory or different statement.

Jury guidance on contradictory statements

The jury is guided on the weight to attach if accepted, or to disregard it completely if they do not believe it was made.

Judge's right to call a witness

A judge at a criminal trial has the right to call a witness not called by prosecution or defence, without consent, if necessary in the interests of justice.

Limitation on judge calling a witness after defence case is closed

A judge should not call a witness after the defence case is closed except where a matter arises ex improviso which no human ingenuity can foresee.

Consequence of improperly calling a witness after the defence case

Otherwise injustice would ensue to the accused person.

General Rule: Judge's right to call a witness

A judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, without the consent of either side, if in his/her opinion, that course is necessary in the interests of justice.

R v Cleghorn Facts

The judge called witness Thompson when neither side called him, and the main ground of appeal was that this should not have happened at the end of the defendant's case.

R v Cleghorn on Judge's Right to Call a Witness

A judge, where the liberty of the subject is at stake and to ensure justice, has the right to call a witness not called by either party.

R v Cleghorn Rule of Practice

At the end of the defendant's case, a judge should only call a witness where no injustice or prejudice is caused and where some matter arises ex improviso.

R v Cleghorn Outcome

The conviction was quashed reluctantly after the trial took a completely different aspect requiring the defendant to be recalled and further witnesses called.

Rv. Rice (1963) 47 Cr App R 79

There is a general principle of practice, though no rule of law, that all evidentiary matter on which the prosecution intend to rely as probative of the guilt of a single defendant or any one of a number of co-defendants should be adduced before the close of the case for the prosecution, if it be then available.

Rv. Patel [1992] Crim. L.R 740

The judge has discretion to allow new evidence even after closing speeches have ended, provided its strong probative value (establishing a dishonest system) outweighs any prejudicial timing.

RV Parks (1961) 3 AER 633 - Availability rule

The evidence sought to be called must not have been available at the time of the trial.

RV Parks (1961) 3 AER 633 - Relevance rule

The evidence must be relevant to the issues.

RV Parks (1961) 3 AER 633 - Credibility rule

It must be credible evidence, in the sense that it is capable of belief.

Leading questions in cross-examination

Leading questions are not objectionable during cross-examination.

Objectives of cross-examination

To elicit evidence supporting the defence's version of the facts and to cast doubt upon the witness's evidence.

Decision not to cross-examine

A party may decide not to cross-examine at all, such as when the witness is hostile or unfavourable to the party calling them.

Failure to cross-examine

Failure to cross-examine amounts to a tacit acceptance of the witness's evidence in chief.

Failure to cross-examine on a particular matter

A party who fails to cross-examine on a particular matter will not be permitted to invite the jury to disbelieve the witness on that matter when intending to contradict or impeach it by calling another witness.

Challenging evidence in chief

Witnesses must be cross-examined on evidence they have given in chief which is being challenged.

Cross-examination as to credibility

A witness may be cross-examined as to credibility, but should have their attention drawn to any facts intended to impeach their credit to give an opportunity of explanation, unless the evidence is incredible.

Browne v Dunne (1894) 6R 67 HOL

Witnesses must be cross-examined on evidence they have given in chief which is being challenged; it is improper to subsequently invite the jury to disbelieve them if they were not cross-examined.

R v Hart 23 CAR 202

If the prosecution intends to ask the jury to disbelieve the evidence of a witness called by the defence on a crucial part of the case, the prosecution ought to cross-examine that witness to make it plain while the witness is in the box that his evidence is not accepted.

Cross-examination on credit threshold

Permitted only if the evidence could substantially affect the assessment of the witness's credibility.

R v Sweet - Escott (1971) 55 CAR 310 Facts

Cross-examination on distant past convictions was not material to the proceedings, so the accused's answers could not form the basis of a perjury charge.

R v Sweet - Escott (1971) 55 CAR 310 on the purpose of cross examination as to credit

The court held that since the purpose of cross examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to the witness's likely standing after cross examination before the tribunal which is trying him or hearing his evidence.

Rule of Finality of Answers on Collateral Issues

Cross-examiner must take answers on collateral issues as final - cannot bring evidence to contradict answers. The most important collateral issue is the credibility of the witness. The rule exists to prevent time from being wasted.

Exceptions to the Rule of Finality

1) Bias or Prejudice (like Evidence in Rebuttal 2) Previous Inconsistent Statement 3) Reputation for untruthfulness 4) Medical evidence of disability of opponent 5) Previous convictions of a witness

AG v Hitchcock (1847) 11 JP 904

The test for whether a matter is collateral is whether the party would be allowed on their part to prove it in evidence; if it has such a connection to the issue that the party would be allowed to give it in evidence, then it is a matter upon which a party may contradict a witness

R v Mendy (1976) 64 CAR 4

The appellant appealed her assault conviction on the ground that rebuttal evidence was wrongly admitted to contradict her husband's denial in cross-examination about discussing the detective's evidence with a note-taker.

What was the appellant charged with in R v Mendy?

Assault.

What unusual incident occurred during the detective's testimony in R v Mendy?

A man took notes, left court and appeared to tell the appellant's husband about the evidence.

Why was the appellant's husband questioned about the incident in R v Mendy?

He later testified and denied that the man had discussed the detective's evidence with him.

What evidence did the prosecution seek to introduce in R v Mendy?

The constable and court officer testified in rebuttal to contradict the husband's denial.

What was the appellant's argument on appeal in R v Mendy?

The husband's answers concerned credibility, so contradictory evidence on a collateral matter was inadmissible.

What is the general rule on collateral matters in R v Mendy?

A witness's answers on collateral matters are generally final and cannot be contradicted by extrinsic evidence.

What important exception applies to the general rule in R v Mendy?

Evidence may contradict a witness's denial of bias or partiality towards a party.

Why was the husband's conduct relevant in R v Mendy?

It showed prejudice and willingness to deceive the jury to help the appellant.

What did the court decide in R v Mendy?

The rebuttal evidence was properly admitted; the appeal was dismissed.

What is the key legal principle from R v Mendy?

A witness's denial of bias may be contradicted by extrinsic evidence despite the collateral-matter rule.