Examination of Witnesses

Examination of Witnesses

  • Examination of witnesses is an important area of focus.
  • Factual metrics are often criminal in nature but not exclusively.

Stages of Examination

  • Section 138 of the Evidence Act outlines the order of examination.
  • The stages are:
    • Examination-in-chief,
    • Cross-examination,
    • Re-examination.
Elonita Abayon Case
  • A criminal case emphasizing the adversarial process in criminal trials.
  • The trial is between the prosecution and the defense, not an investigation by the judge.
  • Examination-in-chief and cross-examination are the responsibilities of the prosecution (deputy public prosecutor) and defense counsel.
  • Judges should maintain impartiality and independence, avoiding direct involvement in examining witnesses, only seeking clarity.

Order of Production and Examination (Section 135)

  • The order in which witnesses are called is guided and regulated by law and practice.
  • This applies to both civil and criminal procedures.
Criminal Process
  • Summary trials (Section 173(c) of the Criminal Procedure Code).
  • Process from Section 173(a) to 173(c) is followed when a person claims trial.
Civil Process
  • Order 35, Rule 4 of the Rules of Court.
  • The plaintiff begins the case, followed by the defendant.
  • If the burden of proof shifts, the defendant begins the trial.

Trial Procedure (Section 138)

  • Examination-in-chief, cross-examination, and re-examination.
  • The adverse party uses cross-examination to challenge the established case.
  • Re-examination allows the initial party to repair their case.
Criminal Trial
  • The prosecution starts, with an opening address in High Court trials.
  • Witnesses are called for examination-in-chief, cross-examination, and re-examination.
  • The prosecution closes the case, after which the defense is called.
  • The judge decides whether the prosecution has made a prima facie case.
  • Evidence runs across both criminal and civil trials.
  • If no prima facie case is established, the accused is acquitted; otherwise, the defense presents its case.
  • The accused has the option to remain silent, give unsworn or sworn statements.
  • The process includes examination-in-chief, cross-examination, and re-examination.
  • The prosecution can reply, and the judge decides on guilt, leading to conviction and sentencing or acquittal.
  • Thereafter, the appeal process may follow.
Civil Trial
  • The plaintiff begins the case.
  • The process includes examination-in-chief and other steps.
  • The judge has the discretion to allow the defense to make a submission of no case to answer.
  • The process concludes with an appeal if needed.

Examination-in-Chief (Section 137)

  • Examination of a witness by the party who calls them.
  • The purpose is to adduce evidence material facts within the witness's knowledge to prove the case.
  • The examination must relate to relevant facts.
Relevance of Facts (Section 136)
  • The court can ask how a fact is relevant before evidence is presented.
  • The case of Latusri Anwar Ibrahim (2000) clarifies this point.
Other Important Sections
  • Section 140: Character evidence; cross-examination and re-examination of character witnesses.
  • Sections 141, 144, 154, 155: Relate to impeaching the credit of witnesses.
  • Section 147: Corroborative evidence; former statements to corroborate later testimony.
Leading Questions (Section 141)
  • Avoid putting answers into the mouth of the witness.
  • Section 142(2): Allows leading questions on undisputed matters or matters sufficiently proven.
  • Section 142(1): Leading questions may not be asked if objected to by the opposing party.
Evidence and Matters in Writing (Section 144)
  • Oral evidence about the content of documents may not be given if objected to by the adverse party.
  • Examine the explanation and illustrations for clarity.
Corroborating Evidence (Section 156)
  • Questions to corroborate evidence of relevant facts are admissible.
  • The illustrations explain the provision.

Cross-Examination (Section 137(2))

  • Examination of a witness by the adverse party.
  • The goal is to obtain answers favorable to the opposing party and weaken the witness's evidence.
  • The party attempts to discredit the witness by targeting their credibility.
  • Jongchuk case:
    • The credibility of the witness.
    • The accuracy and reliability of their statements.
    • To elicit facts not previously mentioned.
  • Section 138(2): Cross-examination must relate to relevant facts but need not be confined to examination-in-chief.
  • Leading questions are allowed to test accuracy and credibility and ultimately discredit the witness.
Relevant Sections
  • Section 143: Leading questions in cross-examination.
  • Section 146: Questions to test accuracy, veracity, and credibility, as well as to injure character.
Peter Uchenna Emembolu v PP
  • Distinguishes between 'credit' and 'credibility'.
  • 'Credit' involves antecedents, associates, character, impartiality, and consistency.
  • 'Credibility' concerns opportunities, power of observation, accuracy, and recollection.
Witness Intimidation

  • Section 151: Witness can be asked leading question.
    *Note: Allows for verification and discrediting of the witness to reveal dishonesty.

  • Sections 148 & 149.

Amended Section: 146A
  • Addresses cross examination concerning the sexual activity of the complainant.
  • Specific provisions related to consent.
Section 153
  • Exclusion of evidence to contradict answers to questions testing veracity.
  • Finality of answers and collateral questions.
  • Pay close attention to the explanation and the illustrations.
  • Datuk Seri Anwar Ibrahim:
    • Witness Umi Hafilda.
    • Clarifies application.
Section 145
  • Impeachment of the prosecution witness concerning previous Police Report.
One Fifty Five
  • How a witness can be impeached and by whom.
  • By persons who testify that they believe him to be unworthy of credit by the adverse party.
  • Sociality & Court of Appeal decision overruled by the Federal Court.
  • Look at reasons that the Federal Court gave for the overruling.
  • Balveer Singh Tape Recording.
Impeachment: Muhammad Ali Jaffa
  • Tendering of tape recording in evidence.
  • Late Justice Augustine Paul outline for tendering tape recordings.
  • Trial within trial to admit tape recording
  • Admissibility subject to conditions like voluntariness.
  • Accurate reproduction of events.
Hostile vs Unfavorable Witnesses
Hostile Witness
  • Gives evidence that is adverse to the party who called him.
  • Refuses to give evidence or gives evidence against you.
  • Impeachment proceedings can be initiated.
Unfavorable Witness

  • Fails to prove a fact by the party who called him.

  • Not showing any apparent hostility.

  • No impeachment proceedings.

  • Section 154 allows you to cross examine your own witness.

  • The idea is to prevent the court from giving weight and the probative value whatever right to that particulars weakness evidence

  • And then basically, the court decide whether it is a hostile

Cases
  • Tanjaiju a drug case.
    *The High Court allowed for test of veracity of the witnesses.
Failure to cross examine
  • A failure implies acceptance of the witness statement.
  • Except when the story is incredibly clear and there is a reason to save time.
  • The court should evaluate looking at the cogency of the evidence.
  • Look at the recent Drug Case regarding cross-examination
Re examination Section 137 sub three
  • Witnesses are examined by party who had called them.
  • Where where a witness has been cross examine he may be re examine
  • The purpose is to remedy any discrepancy, which has arisen during the examination- in- chief and plus examination
  • Unless with a leave of court, they would allow from 138 sub to.
Recalling of Witnesses (Section 138(4))
  • The court may permit a witness to recalled for further examination.
  • Together what is with our sections for five to five is in the internet and that some kind of just decision in the Mallee or a hash Farm case

Refreshing Memory

Rationale
  • Richard Talala justice said the memory different from 1% to the other with age and he's been initially from any held but cannot should be a lot
Section one five nine one six a one six one
  • The court is also to allow refreshing memory.
Conditions of refreshing memory stated in your case of morning bin Saman
  • The lighting must have been made by witnesses sell if they make by another must have been read by the witness and must have been found to be correct by the witness
  • Must apply to refer the need to refer to the writing
  • He must have shown that require with you is discretion of the court to allow, that is the conditions
  • This says that is not nice side for document to be admissible but must get the name this case of shall come Hoon again that be P