We began by looking at the course of testimony. As a general rule all evidence must be given on oath, and the form of the oath must be such as the witness declares to be binding on him: s5 OATHS ACT 1978.

Once a witness his sworn or affirmed, his evidence may have three stages:

examination-in-chief;
cross-examination;
re-examination.

EXAMINATION-IN-CHIEF. This is where the advocate for the party calling the witness (i.e. the party who believes that the witness’s evidence will help his case) tries to elicit the evidence required from the witness. There are four matters to consider in relation to evidence-in-chief:

leading questions;
refreshing the memory;
the admissibility and value of a witness’s previous consistent statement;
unfavourable and hostile witnesses.

Leading questions. These are questions which either suggest the answer desired or assume the existence of disputed facts. They are not permissible in examination-in-chief because they either prompt the witness or they may mislead the jury into thinking that the disputed fact has been established.

For example: “you then saw the accused punch Mr Smith in the face, didn’t you?” is a leading question because it suggests the answer to disputed facts.

Exceptionally, leading questions are permitted at the very start of a witness’s testimony for purely formal or introductory matter, or where the evidence is non-controversial: “your name is John Smith?” is permissible.

It should be remembered that the ban on leading questions applies only to the advocate calling the witness (i.e. it applies only to examination-in-chief and re-examination). In cross-examination leading questions are permissible and indeed, essential since the purpose of cross-examination is, in part, to try to persuade the witness to agree to the truth of an alternative version of the facts.

Refreshing the memory. This was originally covered by the common law, but is now covered by s139 Criminal Justice Act 2003. A witness may refresh his memory from a witness statement or proof of evidence about the facts on which he is to testify by referring – before going into court – to any previous statement that he has made.

In court a witness may refresh his memory by referring to a documentary record (e.g. a witness statement or similar) whilst actually testifying. Before he can do this, however, the following conditions must be satisfied under s139(1) Criminal Justice Act 2003.

(1) The witness must state in evidence that the document records his recollection of the matter at the time it was made.
(2) His recollection of the matter is likely to have been significantly better at that earlier time than at the time of trial.
(3) The document must have been written by the witness or verified as accurate by him at the time the document was made.
(4) The document must be handed to the opposing advocate to inspect and may be handed to the jury.

Where a witness relies on a note to refresh his memory, the advocate may inspect the document, and cross-examine upon matters not dealt with by the witness-in-chief. In those circumstances, the document becomes an exhibit in the case and, as such, is evidence of the truth of the matters stated in it (s120(3) CJA 2003).

The admissibility and value of a witness’s previous consistent statement. Before the coming into force of s120 Criminal Justice Act 2003, the general rule was that a party could not adduce evidence of his own or his witnesses’ prior statements to support his case at trial. The reason for the rule is clearly shown by Roberts [1942]: the accused shot his girlfriend when attempting to persuade her to return to him. Several hours after his arrest he told his father that his defence would be accident and wanted to call his father to give evidence of this conversation. It was held that this was not permissible because it added nothing to the testimony that was being given in the court. How would it assist the jury to know that some hours after his arrest Roberts had already thought of a line of defence. Anyone who had been arrested would clearly be applying his mind to what lines of defence were open to him and therefore it was of no evidential value.

There are now important exceptions to the general rule under s120 CJA 2003 which admits previous consistent statements as evidence of their truth in the following circumstances:

to rebut allegations of fabrication (s120(2));
documents used to refresh memory on which the witness is cross-examined (s120(3));
certain out-of-court statements covered by s120(4)-(7) (identity, facts fresh in the memory complaint by alleged victim).

Where previous consistent statements are admitted as evidence of the truth of their contents, the out-of-court statement will add to the evidence of the witness, not replace it.

s120(2) CJA 2003 has not changed the common law rule admitting a previous consistent statement to rebut allegations of fabrication; it has merely given that common law rule statutory force. In Roberts, had it been suggested to the defendant in cross-examination that his defence was a recent fabrication, he would have been allowed to adduce evidence of the conversation with his father.

The victim, male or female, of a sexual offence is allowed to give evidence that he made a complaint to someone as soon as reasonably practicable after the incident. It is then open to the prosecution to call the person to whom the complaint was made. R v Osbourne [1905] is the leading case on the conditions for voluntariness and spontaneity. The Court of Appeal has suggested that the test should be applied with a degree of flexibility so that the fact the complaint was not made at the first reasonable opportunity will not matter if it was not reasonable for the complainant to take that opportunity. The probative effect of evidence being admitted under the rule is that it supports the complainant’s consistency.

The negation of a suggestion of recent fabrication will almost always occur in re-examination rather than examination-in-chief but it is convenient to deal with the point here. If, after a witness has testified in examination-in-chief, the cross-examiner goes on to allege that the story has been recently concocted (e.g. after collaboration with other witnesses or with the accused), a previous statement concerning the nature of his evidence becomes admissible, and the previous statement can then be brought into evidence, usually in re-examination. To use this procedure it is not enough that the cross-examiner his attacked the truth of the witness’s evidence, however vigorously; there must have been a question in the nature of “when did you make this up?” or “you got together with X and agreed on this version didn’t you?” – R v Oyesiku [1971]. In that case a man was arrested for assaulting a police officer, and his wife went immediately to her solicitor to give a statement as to what had occurred, which was in effect that the police had assaulted her husband. By this stage she had not seen her husband in custody. At the trial when she gave evidence to this effect prosecution counsel had suggested to her that she had made up her evidence in collaboration with her husband. It was held proper to allow the solicitor to be called to prove that the wife had told him her version of events immediately after the incident and before she could possibly have collaborated with her husband about it. If it is permitted to prove such statements then in a criminal case they merely go to rebut the allegation of recent fabrication; they are not evidence of the facts stated in them. This is a distinction which it is suggested the average jury would have great difficulty in following!

Unfavourable and hostile witnesses. These terms relate only to certain special situations which may arise with a party’s own witnesses. (The other side’s witnesses, after all, may be expected to be unfavourable.)

Parties prepare their case by having their solicitor take a statement from each witness which is written down and signed by the witness. This is called a “proof of evidence”. A witness whose evidence in court is generally in accordance with his statement is said to be “coming up to proof’. The following part deals with the situation where a witness does not come “up to proof’.

There are two possibilities for such witnesses; they may be either “unfavourable” or “hostile.”

An unfavourable witness is simply one who is not “coming up to proof” and fails to prove some necessary fact. Such witnesses cannot be attacked by the party calling them, nor can their previous statements be put to them to remind them, or correct them. The best one can hope for if a witness proves to be unfavourable is that one has other witnesses as to the same point and that the jury will prefer the later evidence. Unfavourable witnesses may be so because they are forgetful, foolish or mistaken.

Hostile witnesses are those “not desirous of telling the truth at the instance of the party calling them”. So, the clearest instance is that of a witness who has deliberately changed his evidence since his previous statement, whether from a desire not to be involved; fear; malice, or some other motive. Where an advocate is examining-in-chief one of his own witnesses and finds that he is hostile, the following occurs:

He asks the judge to send the jury out of court.
In their absence he applies to the judge for leave to treat the witness as hostile.
The judge will decide whether the witness is hostile or merely unfavourable. He will try to judge this from such things as the witness’s demeanour, but he may also be shown the witness’s previous statement so that he can judge how glaring the departure from it is.
The jury are recalled and if the judge has ruled the witness only unfavourable, there is nothing much that the advocate can do about matters, except hope for better results with any other witness he has on the same point.
If the judge rules the witness hostile, however, the advocate can do a little more. He can now at least go some way towards undoing the harm to his case which the witness has done so far. He can now cross-examine the witness using leading questions and put to him his previous inconsistent statement. He cannot, however, attack the witness’s credibility further (e.g. by cross-examining him as to his previous character and convictions).

Where a witness is wholly discredited all his evidence must be disregarded.

CROSS-EXAMINATION. All witnesses are liable to be cross-examined. All parties have the right to cross-examine any witness not called by them. Therefore one accused’s witness can be cross-examined by the prosecution and by counsel for any co-accused.

There are two objectives in such cross-examination:

To elicit information about the facts in issue favourable to the party cross-examining.
To test the truthfulness of, and where necessary cast doubt upon, the evidence given in examination-in-chief

When conducting cross-examination it is an advocate’s duty:

To challenge every part of a witness’s evidence which is in conflict with his own case.
To put his own case to the witness insofar as the witness is able to say anything relevant about it.
To put to a witness any allegation against the witness which he may properly put.

In cross-examination leading questions may be put, indeed on the central matters such questions are essential. Cross-examination is directed to either:

the issues in the case, or
collateral issues, the only important one of which for us is the witness’s credit.

BIAS. This means generally taking a bribe or having very close relations with one party, or having a particular grudge against a party. If such an allegation of bias is put in cross-examination and denied, evidence in rebuttal may be called (e.g. a witness could be called to say that he knew that the first witness had a particular grudge against the accused).

Witness’s own previous inconsistent statements. We have already considered in the section on unfavourable and hostile witnesses the position where a party’s own witness departs from a previous statement. It sometimes happens that a party knows that an opponent’s witness had made a previous statement, written or oral, which is inconsistent with his present evidence. The effect of the inconsistency is precisely the same as in the case of a hostile witness - the jury should be directed to ignore both statements in a criminal trial, and not to speculate as to which of the two versions they prefer to believe.

Witness’s previous convictions. This is the difference between one’s own hostile witness and an opponent’s witness. Whilst both can be cross-examined and have their prior inconsistent statements put to them in an effort to nullify their testimony, only an opposing witness can be asked about his character and convictions. The matter is governed by s6 CRIMINAL PROCEDURE ACT 1865 (again applicable to both civil and criminal proceedings). By this section:

“A witness may be questioned as to whether he has been convicted of any offence and if he denies it . . . it shall be lawful for the cross-examining party to prove the conviction”. This is so however little relevance the conviction may seem to have (e.g. whether the convictions are for perjury or driving offences).

RE-EXAMINATION. After cross-examination, the party who has called a witness has the right to re­-examine him. This is an attempt to clarify any ambiguities in his testimony during cross-examination and to rehabilitate evidence which has been shaken by successful cross-examination. Leading questions may not be used and no new material may be introduced.

CORROBORATION. As a general rule the law does not give particular weight to particular types of evidence. It is open to a jury to convict of even the most serious crime on the evidence of one witness whom they find credible, or on an accumulation of circumstantial evidence.

EXAMPLE:

A is the beneficiary under T’s will. His business is in difficulties and he goes to T to ask for a loan. They quarrel and T tells him he will change his will. A fortnight later T dies from poison. It is proved that A had a key to T’s kitchen; that A had recently bought weed killer although he lives in a house with no garden; and that A had apparently behaved surreptitiously in relation to the weed killer, going to a distant town to buy it, and hiding it under his floorboards.

This is an example of circumstantial evidence, no one fact of which is sufficient to lead to A’s conviction but the accumulation of which may provide proof beyond reasonable doubt.

It is up to the jury, properly directed, to say whether they find that there is sufficient evidence to prove the guilt of the accused beyond reasonable doubt.

In certain exceptional cases corroboration is required, or desirable, because the nature of the case, or of the witness, is considered to be such as to require caution before a conviction is pronounced.

Corroboration is defined as “other independent evidence which supports the evidence which requires corroboration in a material particular and which implicates the accused.”

There are thus three requirements for corroborative evidence:

It must be admissible in itself.
It must be independent of the witness who needs to be corroborated.
It must implicate the accused in a material particular.

So long as the evidence has these three qualities it need not be in the form of direct evidence given by another witness. It can be, for example, fingerprints; or a partial admission by the accused; or a lie told by the accused about the crime which may indicate a guilty mind.

There are many sources of corroborative evidence. The principal sources are:

Circumstantial evidence. A number of items of themselves purely circumstantial have been held to be capable of amounting to corroborative evidence.

Lies told by the defendant. Lies told by the defendant in a statement out of court or a statement made in court are in certain circumstances capable of amounting to corroborative evidence. To be admissible as an out of court statement the court held in the case of R v O’Leary [1998] that the statement must:

be a deliberate statement;
relate to a material issue in the case;
be motivated by realisation of guilt and fear for the truth;
be proved to be a lie by evidence other than that which requires to be corroborated (e.g. by admission by the defendant or by evidence from an independent witness that the evidence is in fact a lie).

The judge must, however, warn the jury that people lie for many reasons and that only where they are satisfied that a lie is motivated by realisation of guilt and fear of the truth can it amount to corroboration.

Under s62(10) PACE if a person without good cause refuses to give consent to the taking of an intimate sample, this is capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material or in some other way significant.

A defendant, in giving evidence in court, may give evidence which serves to confirm the substance of the prosecution evidence or certain other circumstantial evidence and thus it is capable of being corroborative evidence.

In the leading case of DPP v Kilbourne [1973] evidence of similar misconduct was held to be capable of amounting to corroboration of later allegations. The defendant in this case faced a number of charges of indecency relating to schoolboys. The defence contended that any association was entirely innocent, and on appeal the House of Lords said that evidence of similar misconduct was admissible because it went to rebut the defence of an innocent association.

In R v Z [2000] previous acquittals were held to amount to similar fact evidence.

We will continue with this next week. I gave a handout with some questions requiring short answers, and we discuss these also next week.