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Chapter 14: Examination of Witnesses

Table Of Contents 

[14.0] Introduction 

Section 196 of the Criminal Procedure Code (Ch. 7) states: 

'If the accused person does not accept the truth of the charge, the court shall proceed to hear the witnesses for the prosecution and other evidence (if any). 

The accused person or his advocate may put questions to each witness produced against him. 

If the accused person does not employ an advocate, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.' (emphasis added) 

See: Director of Public Prosecutions v Glass; Director of Public Prosecutions v Kuper & Kuper v Director of Public Prosecutions [1984] SILR 28. 

This chapter examines the law relating to: 

·                     'Examination – in – Chief'; 

·                     'Cross – Examination'; and 

·                     'Re – examination'.

[14.1] Examination – in - Chief 

[14.1.1] Introduction 

The purpose of 'Examination – in – Chief' is to elicit all admissible evidence from witnesses by 'non – leading questions'. 

Section 134 of the Criminal Procedure Code (Ch. 7) states: 

'Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation: 

Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring that the taking of any oath whatever is according to his religious belief unlawful, or who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath; the fact of the evidence have been so taken being also recorded in the proceedings.' (emphasis added) 

As regarding the administering of 'oaths' or 'affirmations', see sections 33 & 62 of the Magistrates' Courts Act (Ch. 20) & section 46 of the Interpretation & General Provisions Act (Ch. 85). 

If a witness wishes to affirm rather than taking the oath, the Court should ask the following questions: 

'Do you have any religious belief?' 

and, if necessary, 

'Is the taking of an oath contrary to your religious belief?' 

See: R v Clark (1962) 46 CrAppR 113 at page 117. 

The wording of the 'Oath' is: 

'I swear by Almighty God that the evidence which I shall give to this Court shall be the truth, the whole truth and nothing but the truth so help me God.' 

The wording of the 'Affirmation' is: 

'I solemnly and sincerely truly declare and affirm that the evidence which I shall give to this Court shall be the truth, the whole truth and nothing but the truth.' 

In R v Beattie (1989) 89 CrAppR 302 Lord Lane CJ, delivering the judgment of the Court, stated at page 306: 

'The general well – known rule is that it is not competent for a party calling a witness to put to that witness a statement made by the witness consistent with is testimony before the Court in order to lend weight to the evidence. There are three well known exceptions to that rule. The first one is where it has been suggested to the witness that the evidence he or she has given on oath is a recent invention, that the witness has just made it up. If that suggestion is made, then it is obviously a rule of common sense as well as of law, that a previous consistent statement can be shown in order to demonstrate that the evidence has not recently been fabricated. 

The second exception is complaints made in sexual cases, complaints which are made at the first opportunity, are admissible in order to show consistency. Finally, […] where the statement forms part of the actual events in issue, sometimes known as the res gestae rule.' (emphasis added)

In R v Hulusi & Purvis (1974) 58 CrAppR 378 Lawton LJ, delivering the judgment of the Court of Appeal, commented at page 385: 

'It is a fundamental principle of an English trial that, if an accused gives evidence he must be allowed to do without being badgered and interrupted. Judges should remember that most people go into the witness box, whether they be witnesses for the Crown or defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness box and are starting to tell their story, that the judge of all people is intervening in a hostile way, the human nature being what it is, they are liable to become confused and not to do so well as they would have done had they not been badgered and interrupted.' 

In Director of Public Prosecutions v Haikiu [1984] SILR 155 the Court of Appeal held at pages 159 – 160: 

'In the course of his judgment Daly CJ [in R v Kwatefena [1984] SILR 106] said, "it is wrong for the Court to give the impression that it is doing the work of one side." That is undoubtedly true if the questioning suggests that the judge is satisfied that the accused is guilty; or that it shows, as Lord Denning MR said in Jones v National Council Board [1957] 2 QB 55, that the judge has "dropped the mantle of the judge and assumed the role of an advocate." Further, a judge must not cross – examine an accused when giving his evidence in chief at such length or with such severity that he is assisting the prosecution.' (emphasis added) [words in brackets added] 

When the 'examination – in – chief' of a witness has commenced, but has not completed, as a general rule neither the prosecutor or defence counsel should speak to the witness, about evidence which is to be given. However, with the permission of the Court a witness may be spoken to in respect to the evidence which the witness has given during the 'examination – in – chief'. 

It is however a better practice not to speak to any witness once their 'examination – in – chief' has commenced. 

The law relating to: 

·                     the ' Admissibility Of Evidence' is examined commencing on page 171; 

·                     the 'Order' in which 'Witnesses For The Prosecution' should be called is examined on page 275; and 

·                     'Leading Questions' is examined commencing on page 341. 

[14.1.2] Eliciting Evidence Generally 

[A] Introduction 

The following procedure can be used after the witness has been sworn – in: 

[i] Ask "What is your name?" 

[ii] Ask "What is your occupation?" 

[iii] Ask do "You remember the [date in question]?" 

[iv] Ask "What occurred at about [time in question]?" 

[v] Ask a series of questions commencing with the words, "What happened then / next?" 

[vi] Ask "Can you see any person involved?" 

It would be expected that the defendant would be identified by the witness in appropriate instances. 

Whilst a witness is giving evidence the prosecutor is expected to closely read the statement of the witness to check if the evidence given by the witness is consistent with their statement, otherwise the witness may be declared 'hostile'. The law relating to 'Hostile Witnesses' is examined commencing on page 288. 

See also: Shaw v Director of Public Prosecutions [1961] 2 WLR 897; [1961] 2 AllER 446; [1962] AC 220; (1961) 45 CrAppR 113.

[B] Name 

Whilst ordinarily all witnesses are required to provide their 'full name', a Court has the inherent power to depart from that practice in appropriate and rare circumstances, see R v Socialist Worker, Ex parte Attorney – General [1975] QB 637, per Lord Widgery CJ at page 644. 

In such cases a 'letter' may be used to refer to the witness, instead of their surname. 

See also: R v (Al – Fawwaz) v Governor of Brixton Prison & another [2001] 1 WLR 1234.

[C] Address 

A witness should not be asked to disclose his/her 'address', unless such disclosure is necessary for evidentiary purposes.

[D] Occupation 

Whilst it is not objectionable to ask a witness what his/her 'occupation' is, being employed does not make a witness's evidence more creditable, see R v DS [1999] CrimLR 911.

[14.1.3] Leading Questions 

[A] Defined 

Neither the prosecution or the defence are permitted to elicit evidence using 'leading questions'. 

A 'leading question' is simply a question which puts something in the mouth of the witness before the witness actually says it. 

In Saunders (1985) 15 ACrimR 115 the Court held: 

A 'leading question' is one which either suggests the desired answer or assumes the existence of disputed facts. 

In The State v Daniel [1988 – 89] PNGLR 580 Doherty AJ, sitting alone, stated at page 583: 

'Defence counsel returned several times to the objection that the question "Do you recall three weeks before 12 December 1988?" was leading. A leading question has been defined by Halsbury's Laws of England (4th ed.), vol. 17, par 272 at 189, as follows: 

"Leading questions, that is to say questions which by their form suggest the answer which it is desired the witness shall give, are not generally permitted in examination in chief." 

And: 

"Questions which assume the existence of facts in issue may not be asked." 

I do not see what this question suggests. Its immediate answer is either "Yes, I recall" or "No, I do not recall"; nothing else. Possibly a witness would take it further than "Yes, I recall" by stating what happened. But there is no suggestion in that question about what happened three weeks before 12 December. The witness's scope to answer is wide, he could say he went to a party, played football, went to work – anything! I do not find this a leading question.' (emphasis added) 

For example, the question to a complainant: 

"Did the defendant strike you with a piece of rock to your head?", 

would be 'leading' if there was no prior evidence from the complainant that the defendant: 

[i] was the person who struck the complainant; and 

[ii] did use a piece of rock to strike the head of the complainant. 

The questions which should be asked are: 

[i] "Were you assaulted?"; 

[ii] "Where on your body were you assaulted?"; 

[iii] "How were you assaulted?"; and 

[iv] "Who assaulted you?" 

Those questions would not be classed as 'leading questions'. 

'Leading questions' are also not permitted in 'Re – examination'. 

The law relating to 'Re – examination' is examined commencing on page 365.

[B] Grounds For Exclusion 

The prohibition against 'leading questions' during 'examination – in – chief' of favourable witnesses is intended to prevent the examination being unfairly conducted, ie., to guard against the risk that a witness, who is asked a 'leading question', may adopt the suggestion implied in the question, rather than answering it truthfully from his/her own knowledge, see R v Thynne [1977] VR 98. 

Furthermore, the prohibition lies to inhibit the natural bias which a witness has in favour of the party calling him/her, see Mooney v James [1949] VLR 22.

As explained in Cross on Evidence, 2nd Australian ed., para. 10-16: 

'Leading questions are objectionable because of the danger of collusion between the person asking them and the witness, or the impropriety of suggesting the existence of facts which are not in evidence.' (emphasis added) 

However, the answers to 'leading questions' are not per se inadmissible, but the 'weight' to be given to such evidence may invariably be reduced, see Moor v Moor [1954] 2 AllER 459; [1954] 1 WLR 929 & R v Wilson (1914) 9 CrAppR 124. 

The law relating to 'Weight' to be assigned to evidence is examined on page 173.

[C] Exceptions 

The following are the 'exceptions' to the rule involving 'leading questions':

[i] Formal Matters 

Therefore, the following questions may be asked: 

[a] "Your name is …"; 

[b] "You reside at …"; and 

[c] "Your occupation is …"

[ii] Introductory Matters 

Therefore, the following question could be asked: 

"Is it correct that at about [time] on [date] you were on patrol in [location] with [name of police officer/s concerned]?" 

 See: R v Robinson (1897) 61 JP 520.

[iii] Undisputed Facts 

Undisputed facts are those which are not disputed by the defence. However, if a Court does not know that such evidence is not disputed then it may rule that the question is 'leading'. 

The Court should therefore be advised what evidence is not in dispute. Such evidence would amount to a 'Formal Admission', the law relating to which is examined commencing on page 325. 

An example of such a question is: 

"Did you go to the park and see the dead body of [the name of the deceased]?", 

when it is not disputed that the body of the deceased was in the park in question.

[iv] Assisting Memory 

When the memory of a witness has failed on a particular topic, permission from the Court can be sought to assist the witness. 

If permitted, the question should only assist the memory of the witness by directing the witness to a particular topic, without suggesting the answer, see Accers v Petroni (1815) 1 Stark 100 & Nichollas v Dowding (1815) 1 Stark 81. 

Refer also to the section which examines 'Refreshing Memory From Notes' commencing on page 295. 

However, the 'leading questions' must only relate to 'general matters'.

[v] Identification 

'Leading questions' may be asked for the purpose of identifying persons or things. 

To identify the defendant by a witness, the question that should be asked is: "Is the person which you have mentioned in the precincts of this court?" 

See: R v John [1973] CrimLR 113 & R v Howick [1970] CrimLR 403.

[vi] Expert Witnesses 

As regards, medical practitioners for example, the following series of questions could be asked: 

[a] "Did you examine [name of the complainant]?"; 

[b] "When was that?"; 

[c] "Where was that?"; 

[d] "Did [name of the complainant] tell you what allegedly happened?"; 

[e] "What did the complainant say?"; 

Such evidence is admissible, refer to the section which examines the law relating to 'Hearsay Evidence' commencing on page 176; and 

[f] "What did your examination reveal?" 

Refer also to the section which examines the law relating to 'Opinion Evidence' commencing on page 202.

[vii] Hostile Witnesses 

Refer to the section which examines the law relating to 'Hostile Witnesses' commencing on page 288.

[viii] Lack of Consent 

 'Leading questions' are usually allowed when dealing with such matters. 

 In Saunders (1985) 15 ACrimR 115 Bunt CJ, on behalf of the Court, stated at page 188: 

'[I]n a rape case, upon the element of consent, I find it difficult to see how the question could be otherwise formulated than by asking, "Did you consent" or perhaps by putting it in the alternative, "Did you or did you not consent?".' 

The law relating to 'Sexual Offences' is examined commencing on page 630.

[ix] Contradicting Another Witness's Evidence 

'Leading questions' are permitted in order to contradict the evidence of other witnesses, such as "What did the defendant then say?". 

See: Edmonds v Walter (1819) 3 Stark 7; Hollett v Cousens (1839) 2 M&M 238 & Courteen v Touse (1807) 1 Camp 43. 

A Court may ask leading questions of a supplementary or explanatory kind to clarify issues, see R v Hodgson (1924) 18 CrAppR 7.

[D] Yes Or No Answers 

In Saunders (1985) 15 ACrimR 115 the Court held: 

A question to which the answer is necessarily 'yes' or 'no' is not for that reason alone an improper 'leading question'.

[14.1.4] Unresponsive Answers 

In Practical Evidence (1991) 65 ALJ 344 Young J stated: 

'Unresponsive answers can really be put into three categories, namely: 

(a)                where the witness volunteers an answer deliberately with an intent to gain an advantage; 

(b)               where the witness volunteers something unwittingly which is relevant and would have been unquestionably admissible had the appropriate questions been asked; 

(c)                where the answer is given innocently but would otherwise be inadmissible. […] 

The general rule, according to Wigmore on Evidence (3rd ed., 1940), par 785, is that it is a "novel and unwholesome assertion" that "where an answer is not responsive to the question put, it is the duty of the court to strike it out."' (emphasis added) 

See also: R v Aston (No. 1) [1991] 1 QdR 363.

[14.1.5] Need For Interpreters 

Section 59 of the Magistrates' Courts Act (Ch. 20) states: 

'(1) The language of the Magistrates' Courts shall be English. 

(2) In any proceedings in any Magistrates' Court in which the language spoken by any witness or party requires to be interpreted into English, the Magistrate having jurisdiction in the proceedings may appoint suitable persons as interpreters.' (emphasis added) 

Section 183 of the Criminal Procedure Code (Ch. 7): 

'The language of the court in the case of both the High Court and the Magistrates' Courts shall be English.' (emphasis added)

Section 184 of the Criminal Procedure Code (Ch. 7): 

'(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands. 

(2) When documents are put in for the purpose of formal proof it shall be in the discretion of the court to interpret as much thereof as appears necessary.' (emphasis added) 

Interpreters however are only be considered as 'translating machines' and their translations must be accurate and the evidence of the defendant, like any other witness whose evidence requires the services of an interpreter, must be interpreted faithfully, see Gaio v R (1960) 104 CLR 419. 

The law relating to the 'Right Of A Defendant To An Interpreter' is examined commencing on page 159.

[14.2] Cross - Examination 

[14.2.1] Introduction 

The 'purpose' of 'cross – examination' is to: 

[i] elicit answers to questions to fact, see R v Baldwin (1925) 18 CrAppR 175; and 

[ii] try to show that the evidence of a particular witness should not be believed, in appropriate instances.

In Mechanical & General Inventions Co & Lebwess v Austin & the Austin Motor Co [1935] AC 346 Lord Hawworth commented at page 359: 

'Cross – examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion, and with due regard to the assistance to be rendered by the Court, not forgetting at the same time the burden that is imposed upon the witness.' 

In Lui Mei Lin v R (1989) 88 CrAppR 296 [[1989] AC 288; [1989] 2 WLR 175; [1989] 1 AllER 359; [1989] CrimLR 364] Lord Roskill, delivering the judgment of the Privy Council, held at page 301: 

'In their view the right to cross – examine is, as Lord Donovan stated [in Murdoch v Taylor (1965) 49 CrAppR 119; [1965] AC 574], unfettered, the only limit being relevancy.' (emphasis added) [words in brackets added] 

In R v Hart (1932) 23 CrAppR 202 Lord Hewart CJ, delivering the judgment of the Court, stated at page 207: 

'In our opinion, if on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain, while the witness is in the box that his evidence is not accepted.' 

In R v Funderburk (1990) 90 CrAppR 466 Henry J, delivering the judgment of the Court, stated at pages 469 – 476: 

'When one comes to cross – examination, questions in cross – examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. When questions go solely to the credibility of the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall interests of justice. 

The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence: 

(a) goes to an issue in the case (that is obvious); 

(b) shows that the witness made a previous inconsistent statement relating to an issue in the case […]; 

(c) shows bias in the witness (Phillips (1936) 26 CrAppR 17); 

(d) shows that the police are prepared to go to improper lengths to secure a conviction (Busby (1982) 75 CrAppR 79); 

(e) in certain circumstances proves the witness's previous convictions; 

(f) shows that the witness has a general reputation for untruthfulness; 

(g) shows that medical causes would have affected the reliability of his testimony. 

All those categories listed, other than category (a), might be considered exceptions to the general rule as to the finality requirement of questions put on issues of credibility and collateral matters. The demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where so far from it might defeat them. 

[…] 

As far as concerns the general test as to the limits of cross – examination as to credit, the locus classicus of that is to found in Lawton J's judgment in the case of Sweet-Escott (1971) 55 CrAppR 316, 320. There the witness was cross – examined as to his credit in relation to convictions 20 years ago. As a general test Lawton J having found that the question should not have been allowed said: 

"What, then, is the principle upon which the judge should draw the line? It seems to me that it is this. 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 his likely standing after cross – examination with the tribunal which is trying him or listening to his evidence." 

[…] 

Pollock CB said in the leading case of Attorney – General v Hitchcock (1847) 1 Exch 91 – 99: 

"… the test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him." 

The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so – called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor's and the court's sense of fair play rather than any philosophic or analytic process.' 

Questions in 'cross – examination' may be 'leading' in nature. The law relating to 'Leading Questions' is examined commencing on page 341. 

When cross – examining witnesses, prosecutors should: 

[i] only ask 'relevant' questions; 

[ii] give the witness the opportunity to answer questions, before asking further questions; 

[iii] not include statements of opinion, just facts; 

[iv] never ask insulting or scandalous questions with the intention of insulting or annoying the witness; 

[v] should not entice the witness into argument; 

[vi] never repeat the same question; and 

[vii] not introduce any 'fresh matter' which could and should have been proved as part of the case for the prosecution, other than issues going only to credit, see R v Sansom [1991] 2 QB 130; [1991] 2 WLR 366; [1991] 2 AllER 145; (1991) 92 CrAppR 115; [1991] CrimLR 126; R v Phillipson (1990) 91 CrAppR 226; [1990] CrimLR 407; R v Halford (1978) 67 CrAppR 318; R v Kane (1977) 65 CrAppR 270 & R v Rice [1963] 2 WLR 585; [1963] 1 AllER 832; [1963] 1 QB 857; (1963) 47 CrAppR 79. 

Neither the prosecution or defence should ask questions relating to the identity of any person referred to by a witness, unless there is a specific reason for such evidence, see R v Flynn [1972] CrimLR 428. 

The law relating to 'Protecting The Identity Of Informers' is examined commencing on page 130. 

In R v Praturion (Unrep. NSW CA; 9 November 1985) Street CJ stated: 

'What the Crown Prosecutor did was contrary to a comparatively elementary rule of cross – examination, namely that it is not permissible to put one witness the proposition that the evidence of that witness is to the contrary of the evidence of other witnesses, so as in effect to invite a witness to express an opinion as to whether other witnesses are telling the truth.' (emphasis added) 

That rule also applies to the defence. 

It is the Court which determines the truthfulness or otherwise of witnesses. 

When 'cross - examination' of a witness has commenced, but has not completed, as a general rule neither the prosecutor or defence counsel should speak to any such witness, other than an 'expert witness'. As regards expert witnesses clarification of evidence given may be sought. However, with the permission of the Court any witness may be spoken to in respect to the evidence which the witness has given. 

It is however a better practice not to speak to any witness once their 'cross - examination' has commenced. 

[14.2.2] Limits 

[A] Generally 

In Lui Mei Lin v R (1989) 88 CrAppR 296 [[1989] AC 288; [1989] 2 WLR 175; [1989] 1 AllER 359; [1989] CrimLR 364] Lord Roskill, delivering the judgment of the Privy Council, held at page 301: 

'In their view the right to cross – examine is, as Lord Donovan stated [in Murdoch v Taylor (1965) 49 CrAppR 119; [1965] AC 574], unfettered, the only limit being relevancy.' (emphasis added) [words in brackets added] 

In Wakely v R (1990) 64 ALJR 321 the High Court of Australia held at page 325: 

'Although it is important in the interest of the administration of justice that cross – examination be contained within reasonable limits, a judge should allow counsel some leeway, in cross – examination in order that counsel may perform the duty, where counsel's instructions warrant it, of testing the evidence given by an opposing witness.' 

In R v Sharp [1993] 3 AllER 225; (1994) 98 CrAppR 144 the Court of Appeal held: 

A judge should not intervene, when cross – examination is being conducted by competent counsel, save to clarify matters which he/she did not understand. If a judge wishes to ask questions about matters not touched with in cross – examination, he/she should wait until the end of the cross – examination. 

'Cross – examination' should not be stopped simply on the basis that the questions relate to a tenuous legal issue, see R v Flynn [1972] CrimLR 428. 

It is generally impermissible to cross – examine a defendant on the contents of co – defendant's 'caution statement', see R v Gray & Evans [1998] CrimLR 570. 

See also: Jones v Director of Public Prosecutions [1962] 2 WLR 575; [1962] 1 AllER 569; [1962] AC 635; [1962] AC 635; (1962) 46 CrAppR 129; R v Bateman (1946) 31 CrAppR 106; R v Gilson & Cohen (1944) 29 CrAppR 174 at page 181; R v Cain (1936) 25 CrAppR 204 at page 205 & R v Kalia [1974] 60 CrAppR 200; [1975] CrimLR 181.

[B] Prosecution 

Provided questions are properly formulated and based on evidence previously given, other than issues going to credit, the 'cross – examination' by a prosecutor should not be limited by a Court, see R v Tuegal & others [2000] 2 AllER 872; [2000] 2 CrAppR 361; R v Hill (1993) 96 CrAppR 456 & R v Halford (1978) 67 CrAppR 318. 

A defendant who gives evidence may be cross – examined, although such evidence may incriminate another person, see R v Minihane (1921) 16 CrAppR 38. 

Once a defendant enters the witness box he/she is liable to cross – examination like any other witness, see R v Paul & McFarlane (1920) 14 CrAppR 155 at page 156.

[C] Defence 

Section 10(2)(e) of the Constitution states: 

'Every person who is charged with a criminal offence – 

[…] 

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court in the same conditions as those applying to witnesses called by the prosecution;' (emphasis added) 

Section 196(3) of the Criminal Procedure Code (Ch. 7) states: 

'If the accused person does not employ an advocate, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.' (emphasis added) 

A defence lawyer should not conduct lengthy 'cross – examination' on issues which are not in dispute, see R v Maynard (1979) 69 CrAppR 309 & R v Kalia [1974] 60 CrAppR 200; [1975] CrimLR 181. 

The defence has the right to cross – examine a co – defendant who has given evidence, see R v Hilton (1955) 71 CrAppR 466. 

It is improper practice to cross – examine a prosecution witness by way of defence, as distinct from issues going to credit, if it is not intended to call the defendant to substantiate the issues raised in cross – examination, see R v O'Neill & Ackers (1950) 34 CrAppR 108. 

In R v Brown (Milton) [1998] 2 CrAppR 364 Lord Bingham CJ, delivering the judgment of the Court of Appeal, stated at pages 369 – 371: 

'When defendants represent themselves in criminal trials problems regularly arise. Such defendants lack that knowledge of procedure, evidence and substantive law; that appreciation of relevance; that ability to examine and cross – examine witnesses and present facts in an orderly and disciplined way; and that detachment which should form part of the equipment of the professional lawyer. These deficiencies exist even where a defendant attempts to represent himself in all good faith. But the problems are magnified one hundred – fold where the defendant is motivated by a desire to obstruct the proceedings or to humiliate, intimidate or abuse any one taking part in it. 

The trial judge's duty is to ensure to the utmost of his ability that the defendant, even if unrepresented, or perhaps particularly if unrepresented, has a fair trial. Every defendant is not guilty until proved to be so. Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not. […] 

[…] 

The trial judge is, however, obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimize the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned. 

Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross – examination, for the trial judge to discuss the course of proceedings with the defendant […]. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.' (emphasis added) 

A Court should assist a defendant in framing his/her questions in cross – examination, if necessary, see R v Barker (1927) 20 CrAppR 70. 

[14.2.3] Questioning Credibility Of Defendants

[A] General Principles 

In R v Miller & others (1953) 36 CrAppR 169 Devlin J stated at page 171: 

'The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally relevant to inquire into a prisoner's previous character, and, particularly, to ask questions which tend to show that he has previously committed some criminal offence. It is not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant. That is, however, this difference in the application of the principle. In the case of the prosecution, a question of this sort may be relevant and at the same time be prejudicial, and, if the court is of the opinion that the prejudicial effect outweighs its relevance, then it has the power, and indeed, the duty, to exclude the question. Therefore, counsel for the prosecution rarely asks such a question. No such limitation applies to a question asked by a counsel for the defence. His duty is to adduce any evidence which is relevant to his own case and assists his client, whether or not it prejudices anyone else.' 

See also: Lui Mei Lin v R [1989] AC 288; [1989] 2 WLR 175; [1989] 1 AllER 359; (1989) 88 CrAppR 296; [1989] CrimLR 364. 

In R v Chinmaya [1995] 1 QdR 542; [(1995) 73 ACrimR 316] the Court of Appeal stated at page 544: 

'It is settled that the discretion to permit cross examination about prior convictions is not to be lightly exercised, but as was said in Phillips v The Queen (1985) 159 CLR 45, 57, "sparingly and cautiously". […] At the same time there is, as Mason, Wilson, Brennan and Dawson JJ held in that case, no rule that the discretion must be exercised against the Crown unless the circumstances can be described as exceptional (159 CLR 45, 54). In the end, their Honours said, "the sole criterion governing its exercise is what fairness requires in the circumstances of the case" (at 58).' (emphasis added) 

In R v Turner (1924) 18 CrAppR 161 Lord Hewart CJ, delivering the judgment of the Court, stated at page 162: 

'It cannot too clearly be understood that where previous convictions are relied on for any purpose in a trial they must be either: (a) proved by lawful evidence; or (b) expressly admitted by the accused person.' 

As regards the 'Proof Of Previous Convictions', refer to page 305.

 In Donnini v R (1972) 128 CLR 114 the High Court of Australia held: 

Where the evidence of prior convictions are properly before a Court for the sole purpose of combating a suggestion of good character or destroying the defendant's credibility, the Court may not use the fact of a prior conviction as evidence tending to the guilt of the defendant, but that the fact of prior convictions can only be used for the purpose of discrediting the defendant where his/her evidence conflicts with that of witnesses called by the prosecution or where he/she makes exculpatory claims in his/her defence. 

Subject to obtaining the Court's permission a defendant may be cross – examined on offences committed after the offence for which he/she is charged, see R v Coltress (1979) 68 CrAppR 193 & R v Wood [1920] 2 KB 179; (1920) 14 CrAppR 149. 

Furthermore, a Court may only allow 'cross – examination' on parts of a defendant's criminal history, see R v Billings [1966] VR 396. For example, in a case of 'Simple Larceny', a Court may only allow 'cross – examination' in relation to offences of 'dishonesty'. 

If the prosecution believes that an unrepresented defendant may by his/her questioning result in an application under section 141 of the Criminal Procedure Code (Ch. 7), the prosecutor should seek an adjournment. The defendant should then be advised by the prosecutor in the presence of an independent person that if he/she continues such an application may be made, see R v Cook (1959) 43 CrAppR 138; [1959] 2 WLR 616; [1959] 2 QB 340; [1959] 2 AllER 97 & R v Morris (1959) 43 CrAppR 206. 

See also: Maxwell v Director of Public Prosecutions [1935] AC 309; (1934) 24 CrAppR 152; R v Powell [1985] 1 WLR 1364; (1986) 82 CrAppR 165; [1986] 1 AllER 193; [1986] CrimLR 175; R v Nelson [1979] 68 CrAppR 112; R v Levy (1966) 50 CrAppR 238; [1966] CrimLR 381; Stirland v Director of Public Prosecutions [1944] AC 315; [1945] 30 CrAppR 40; R v Devine [1985] 18 ACrimR 185; A Moe v DPP (Nauru) (1991) 103 ALR 595 & Attwood v R (1960) 102 CLR 353.

[B] Similar Fact Or Propensity Evidence 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – 

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged.' (emphasis added) 

The purpose of this subsection is to permit the 'cross – examination' of a defendant regarding his/her previous and subsequent criminal conduct to show that the dMefendant has the propensity to commit the offence/s charged. Otherwise, the prosecution would not be able to cross – examine the defendant on such matters. 

In R v Fisher [1910] 1 KB 149 Channell J, delivering the judgment of the Court, stated at page 152: 

'The principle is that the prosecution is not allowed to prove that the prisoner has committed the offence with which he is charged by giving evidence that he is a person of bad character, and one who is in the habit of committing crimes, for that is equivalent to asking the jury to say that because the prisoner has committed other offences he must therefore be guilty of the particular offence for which he is being tried. But if the evidence of other offences does go to prove that he did commit the offence charged, it is admissible because it is relevant to the issue, and it is admissible not because, but notwithstanding that it proves that the prisoner has committed another offence.' 

If the prosecution intends to rely on 'similar fact / propensity evidence' then such evidence should be raised as part of the prosecution case, rather than raising such 'issues' in 'cross – examination', see Jones v Director of Public Prosecutions [1962] 2 WLR 575; [1962] AC 635; [1962] 1 AllER 569; (1962) 46 CrAppR 129 & R v Anderson (M) [1988] QB 678; (1988) 87 CrAppR 349; [1988] 2 AllER 549. 

See also: R v Ellis (1910) 5 CrAppR 41; [1910] 2 KB 746. 

The law relating to: 

·                     'Similar Fact Or Propensity Evidence' is examined commencing on page 188; and 

·                     the 'Weight' to be assigned evidence is examined on page 173. 

[C] Character 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – 

[…] 

(ii) he has personally or by his advocate asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his own good character […].' (emphasis added) 

In determining whether to permit such 'cross – examination', the Court should balance the possible prejudicial effect of such questions against the damage caused to the prosecution case in order to ensure that a fair trial is conducted, see R v McLeod [1995] 1 CrAppR 591. 

The purpose of this 'cross – examination' is to show that the defendant is not worthy of belief and that therefore, the evidence of the prosecution witness/es should be given more 'weight' than that of the defendant. However, its purpose is not to show that the defendant has the propensity or tendency to commit the offence/s charged, see R v McLeod (supra) & R v Prince [1990] CrimLR 49. 

The law relating to the 'Weight' to be assigned evidence is examined on page 173. 

In R v McLeod (supra) the Court of Appeal held at pages 604 – 605: 

'For the general principles upon which the discretion, […], should be exercised we cannot improve upon the analysis contained in the judgment of Ackner LJ in Burke (1986) CrAppR 156, as supplemented by the observations of Neill LJ in Owen (1986) 83 CrAppR 100, 104, 105, to which we have referred. As to the nature of the questions that may properly be put, we consider that the following propositions should be borne in mind:

1. The primary purpose of cross – examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged […]. But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper […] 

2. It is undesirable that there should be prolonged or extensive cross – examination in relation to previous offences. […].' (emphasis added) 

Such 'cross – examination' may relate to the entire record of the defendant, see Stirland v Director of Public Prosecutions [1944] AC 315; (1945) 30 CrAppR 40 & R v Thompson (1966) 50 CrAppR 91; [1966] 1 WLR 405; [1966] 1 AllER 505. 

In R v de Vere [1981] 3 AllER 473 [(1981) 73 CrAppR 352] Stuart – Smith LJ, delivering the judgment of the Court of Appeal, held at page 476:

'If the defendant puts his character in issue, that is to say adduces evidence of his own good character, whether by cross – examination on his behalf or by means of giving evidence himself or by means of calling witnesses as to character, the prosecution may rebut that evidence either by cross – examination or by independent testimony, and that right has existed at common law for very many years going back, as found expressed in R v Gadbury (1838) 8 C & P 676, 173 ER 669. It is repeated more recently in R v Butterwasser [1947] 2 AllER 415, [1948] 1 KB 4. 

However, Lord Goddard CJ also said in that case […]: 

"However that may be, there is no authority for the proposition – and it is certainly contrary to what all the present members of the court have understood during the whole of the time they have been in the profession – that, where the prisoner does not put his character in issue, but merely attacked the witnesses for the prosecution, evidence can be called by the prosecution to prove that the prisoner is a man of bad character." 

The reason for that is this, that, by attacking the witnesses for the prosecution and suggesting that they are not reliable, he is not putting his character in issue. He is putting their character in issue, that is to say he is not stating, directly or indirectly, anything about his own character at all. Accordingly there is nothing, so far as his character is concerned, which the prosecution are called on or are entitled to rebut. Such confusion as exists has perhaps been caused by the loose use of the expression 'puts his character in issue'. It is sometimes used incorrectly to cover cases where the defendant has subjected himself to cross – examination as to character by attacking the character of the prosecution witnesses. That is, strictly speaking, not putting his character in issue. 

The exception has already been dealt with, that is to say, where he gives evidence and subjects himself to cross – examination under the terms of s 1(f)(ii) of the [… Criminal Evidence Act 1898]. If he is not called as a witness, then that section does not apply at all, and one is cast back on the ordinary rules of evidence. These do not permit, as a general rule, proof of a defendant's bad character as part of the prosecution case. In general it is not of course permissible, in order to prove a defendant's guilt, to adduce evidence as part of the prosecution case that the defendant had a bad reputation or a disposition to commit, or indeed has committed, crimes in the past. Nor is there any relaxation of that rule on the ground, so to speak, of tit for tat if the defence attacks the character of the prosecution witnesses. The rule is only relaxed by virtue of S 1(f)(ii). That only applies when the defendant is being cross – examined and he himself is giving evidence. If he does not give evidence it does not apply […].' (emphasis added) [words in brackets added] 

The law relating to 'Character Evidence' is examined commencing on page 207. 

Irrespective, a Court may in the exercise of its discretion choose to exclude such evidence from consideration as to the guilt of a defendant bearing in mind the overriding duty to ensure that a fair trial is conducted, see R v Taylor & Goodman [1999] 2 CrAppR 163; Selvey v Director of Public Prosecutions [1970] AC 304; [1968] 2 WLR 1494; [1968] 2 AllER 497; (1968) 52 CrAppR 443; Jones v Director of Public Prosecutions [1962] AC 635; [1962] 2 WLR 575; [1962] 1 AllER 569; (1962) 46 CrAppR 129; Noor Mohamed v R [1949] AC 182; [1949] 1 AllER 365 & Maxwell v Director of Public Prosecutions [1935] AC 309; (1934) 24 CrAppR 152. 

Such 'cross – examination' should not relate to offences for which the defendant has not been convicted, see R v Cokar [1960] 2 QB 207; [1960] 2 WLR 836; [1960] 2 AllER 175; (1960) 44 CrAppR 165 & Maxwell v Director of Public Prosecutions [1935] AC 309; (1934) 24 CrAppR 152. 

See also: Donnini v R (1972) 128 CLR 114 7.

[D] Imputations 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person:

Provided – 

[…] 

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – 

[…] 

(ii) […] the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution.' (emphasis added) 

Such 'imputations' must be against witnesses called by the prosecution, see R v Lee [1976] 1 WLR 71; [1976] 1 AllER 570; (1976) 62 CrAppR 33; [1976] CrimLR 521 & R v Westfall (1912) 7 CrAppR 176. 

The purpose of this cross – examination is to show that the defendant is not worthy of belief and that the evidence of the prosecution witness/es should be given more 'weight' than that of the defendant. However, its purpose is not to show that the defendant has the propensity or tendency to commit the offence/s charged. 

The fact that a defendant, or a defence witness, denies what is alleged by the prosecution does not automatically involve an 'imputation' on the character of the prosecution, see R v Desmond [1999] CrimLR 313 & Selvey v Director of Public Prosecutions [1970] AC 304; [1968] 2 WLR 1494; [1968] 2 AllER 497; (1968) 52 CrAppR 443. 

The defence are entitled to put their case to the witnesses called by the prosecution, see R v Westfall & Murphy (1912) 7 CrAppR 176 at 179. 

For example, a defendant may allege: 

[i] consent was given in respect of a charge of rape, see R v Turner (J) (1944) 30 CrAppR 9; [1944] KB 463 & Selvey v Director of Public Prosecutions (supra); and 

[ii] that police officers are lying. 

 In R v Grout (1909) 3 CrAppR 64 Lord Alverstone CJ, delivering the judgment of the Court, held at page 66: 

 'When a man in appellant's station of life uses such terms as "he is lying" and "it is a lie", or even stronger expressions, all that is generally meant is a denial of the truth of the case for the prosecution and not a real reflection upon the character of the witness.' 

See also: R v Rouse [1904] 1 KB 184; Selvey v Director of Public Prosecutions (supra) & Cushing v R [1977] WAR 7. 

However, it is an 'imputation' if the defendant alleges that: 

[i] he/she was improperly induced to make a confessional statement, see R v Wright (1910) 5 CrAppR 131 at page 132; and 

[ii] the evidence of the witness was fabricated, see R v Tanner (1978) 66 CrAppR 56 & R v Britzmann & Hall [1983] 1 AllER 369; (1983) 76 CrAppR 134; [1983] 1 WLR 350; [1983] CrimLR 106.

 In R v Owen (1986) 83 CrAppR 100 Neill LJ, delivering the judgment of the Court, stated at pages 104 – 105: 

'In order to consider this aspect of the case [, referring to the cross – examination fo the appellant upon his previous convictions,] it is necessary to bear the following points in mind: 

(1) When an application is made on behalf of the Crown for leave to cross – examine the accused as to his previous convictions on the basis that the nature or conduct of the defence has been such as to involve imputations on the character of the prosecutor, or the witnesses for the prosecution, the judge at trial has two tasks to perform: 

(a)                first he must form a judgment as to "the nature or conduct of the defence" in order to decide whether the condition set out in paragraph (ii) of section (1)(f) of the 1898 Act has been satisfied; and 

(b)               if he is so satisfied, he must decide whether in the exercise of his discretion he should allow the cross – examination to take place. 

(2) In forming a judgment as to the nature and conduct of the defence the judge will have to consider the facts of the individual case. Where explicit allegations of the fabrication of evidence have been made against prosecution witnesses, his task will be easy. But it is clear that in many cases imputations on the character of the witnesses for the prosecution may be made even though no explicit allegation of fabrication is made and even though counsel for the accused has conducted his cross – examination with delicacy and restraint. A challenge to the evidence of a witness, where there can be no question of mistake or misunderstanding or confusion, may well bear the necessary implication that the evidence has been fabricated. If the reality of the position is that the jury will have to decide whether the evidence of the witness whose testimony has been challenged, has been made up, then, in the words of Lawton LJ in Britzmann (1983) 76 CrAppR 134, 138; [1983] 1 WLR 350, 354 "there is no room for drawing a distinction between a defence which is so conducted as to make specific allegations of fabrication and one in which the allegation arises by way of necessary and reasonable implication." See also Turner (1978) 66 CrAppR 56, 64. 

(3) Where the condition set out in paragraph (ii) of section (1)(f) of the 1898 Act has been satisfied, the trial judge must weigh the prejudicial effect of the questions to be directed to the accused against the damage done by the attack on the prosecution's witness, and must generally exercise his discretion so as to secure a trial that is fair to the prosecution and the defence: see Burke [1985] CrimLR 660 and Powell (1985) 82 CrAppR 165; [1985] 1 WLR 1364 where the guidance to this effect by the Court of Criminal Appeal in Cook [1959] 43 CrAppR 138, 143; [1959] 2 QB 340, 348, was approved. 

(4) Cases must occur in which, although the grounds for putting questions to the accused about his previous convictions have been established, the effect of allowing such questions might be fraught with results which would unreasonably outweigh the result of the questions put by the defence and might make a fair trial of the accused almost impossible: see Burke (supra) and Powell (supra), approving the observations of Singleton J in Jenkins (1945) 31 CrAppR 1, 15. 

(5) In the normal and ordinary case, however, the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked: see Burke (supra) and Powell (supra). If imputations on the character of a prosecution witness have been made and if there is a real issue about the conduct of that witness which the jury will inevitably have to settle in order to arrive at their verdict, then, in the words of Devlin J delivering the judgment of the full Court in Cook (supra) at p.143 and p.348 of the respective reports, "… the jury is entitled to know the credit of the man on whose word the witness's character is being impugned." Devlin J was considering the case of a police officer whose evidence had been attacked, but it seems clear that the same principle is to be applied in the case of any important witness against whom such an imputation has been made and about whose conduct the jury will have to reach a conclusion. 

(6) The fact that the accused's convictions are not for offences of dishonesty, but may be for offences bearing a close resemblance to the offences charged, are matters for the judge to take into consideration when exercising his discretion, but they certainly do not oblige the judge to allow the proposed cross – examination: see Powell (supra). 

(7) An appellant court will not interfere with the exercise of the trial judge of his discretion unless he has erred in principle or there was no material on which he could properly arrive at his decision: see Selvey v DPP (1968) 52 CrAppR 443, 468; [1970] AC 304, 342 and Powell (supra). The Court will not quash a conviction merely because it would have exercised the discretion differently.' [words in brackets added] 

However, as soon as an unrepresented defendant commences to impugn the credibility of prosecution witnesses, the prosecutor should seek an adjournment. The defendant should then be advised by the prosecutor in the presence of an independent person that if he/she continues to impugn the credibility of the witnesses called by the prosecution, the prosecution may be granted leave to cross – examine him/her on any previous convictions, subject to him/her giving evidence on oath, see R v Weston – super – Mare Justice, Ex parte Townsend [1968] 3 AllER 225. 

In Wulff v Honan (1989) 11 QLR 72 Judge Bolton stated at pages 75 – 76: 

'For an unrepresented person to call a witness a liar might be more than a denial of what he is saying. As Viscount Dilhorne pointed out in Selvey v DPP [1970] AC 304 at 334: 

"Accordingly, when a man in the accused's station of life uses such terms as 'he is lying' and 'it is a lie', or even stronger expressions, all that is generally meant is a denial of the truth of the case for the prosecution and not a real reflection upon the character of a witness." 

In any event it is prudent course to warn such a person if he is beginning to reflect upon a witness's character. As Viscount Dilhorne said in Selvey's Case (at 342): 

"It is desirable that a warning should be given when it becomes apparent that the defence is taking a course which may expose the accused to such cross – examination." 

In R v Morris (1959) 43 CrAppR 206 at 210 Gorman J had referred to the statement of Delvlin J in R v Cook [1959] 2 QB 340: 

"In cases of this sort, where there is no hard and fast rule, some warning to the defence that it is going too far is of great importance; and it has always been the practice for prosecuting counsel to indicate in advance that he is going to claim his rights under the subsection, or for the judge to give the defence a caution."'

 In determining whether to admit the evidence of previous convictions, a Court should consider the seriousness of the 'imputations', see R v Taylor & Goodman [1999] 2 AppR 163. 

Irrespective, a Court may in the exercise of its discretion choose to exclude such evidence from consideration as to the guilt of the defendant bearing in mind the overriding duty to ensure that a fair trial is conducted, see R v Taylor & Goodman [1999] 2 CrAppR 163; Selvey v Director of Public Prosecutions [1970] AC 304; [1968] 2 WLR 1494; [1968] 2 AllER 497; (1968) 52 CrAppR 443; Jones v Director of Public Prosecutions [1962] AC 635; [1962] 2 WLR 575; [1962] 1 AllER 569; (1962) 46 CrAppR 129; Noor Mohamed v R [1949] AC 182; [1949] 1 AllER 365 & Maxwell v Director of Public Prosecutions [1935] AC 309; (1934) 24 CrAppR 152. 

See also: R v Prince [1990] CrimLR 49; R v Preston [1909] 1 KB 568 at page 575; R v McLean (1926) 19 CrAppR 104 at page 108; R v Morgan (1910) 5 CrAppR 157; The State v Rain [1976] PNGLR 43 & R v Pointon & Constable [1967 – 68] PNGLR 395. 

[E] Co - Defendants 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – 

[…] 

(iii) he has given evidence against any other person charged with the same offence.' (emphasis added) 

In R v Crawford [1998] 1 CrAppR 338 Lord Bingham CJ, delivering the judgment of the Court of Appeal, stated at pages 341 – 343: 

'The sub-paragraph [, referring to the equivalent paragraph in section 1(f) of the Criminal Evidence Act 1898,] is plainly directed to the situation where a defendant is called as a witness and gives evidence against a co – defendant jointly charged in the same proceedings. 

The meaning of the statutory reference to "evidence against any other person" has been subject of judicial consideration. […] 

[…] 

The most recent detailed consideration of this question is to be found in Varley (1982) 75 CrAppR 242; [1982] 2 AllER 519. Giving the reserved judgment of the Court in that case, at p. 246 and p. 522, Kilner Brown J said: 

"Now putting all the reported cases together, are there established principles which might serve as guidance to trial judges when called upon to give ruling in this very difficult area of the law? We venture to think that they are these and, if they are borne in mind, it may not be necessary to investigate all the relevant authorities. 

(1) If it established that a person jointly charged has given evidence against the co – defendant that defendant has a right to cross – examine the other as to previous convictions and the trial judge has no discretion to refuse an application. 

(2) Such evidence may be given either in chief or during cross – examination. 

(3) It has to be objectively decided whether the evidence either supports the prosecution case in a material respect or undermines the defence of the co – accused. A hostile intent is irrelevant. 

(4) If consideration has to be given to the undermining of the other's defence care must be taken to see that the evidence clearly undermines the defence. Inconvenience to or inconsistency with the other's defence is not of itself sufficient. 

(5) Mere denial of participation in a joint venture is not of itself sufficient to rank as evidence against the co – defendant. For the proviso to apply, such denial must lead to the conclusion that if the witness did not participate then it must have been the other who did. 

(6) Where the one defendant asserts or in due course would assert one view of the joint venture which is directly contradicted by the other such contradiction may be evidence against the co – defendant." 

The evidence of one defendant is, therefore, evidence against a co – defendant if it supports the prosecution case against the co – defendant in a material respect or undermines the defence of the co – defendant. […] 

The essential question put at its simplest is this: Does the evidence given by the defendant in the witness box, if accepted, damage in a significant way the defence of the co – defendant? If so, then the statute provides that the defendant may be asked and obliged to answer questions relating to previous convictions. If on any factual matter there is no issue between the Crown and a co – defendant, the defendant's evidence does not damage the defence of the co – defendant if the defendant's evidence is also to the same effect. That, as we understand it, is why Lord Donovan and also Kilner Brown J referred to the defendant's evidence supports the Crown case in "a material respect". If the defendant's defence supports the Crown in a respect which is not contentious, that is not a material respect. If, however, the defendant's evidence supports the prosecution case on a significant matter in issue between the Crown and the co – defendant and relative to proof of the commission by the co – defendant of the offence charged against him, then that is evidence potentially damaging to the defence of the co – defendant and is to be regarded, for purposes of the statutory proviso, as evidence by the defendant against the co – defendant.' (emphasis added) [words in brackets added] 

In R v Knutton (1993) 97 CrAppR 115 the Court of Appeal held at page 119: 

'In our judgment, one defendant A is not allowed to adduce evidence of the bad character of another B except – 

(a)                by asking B about his previous conviction in the circumstances for which section 1(1)(f) of the Act 1898 expressly provides, and 

(b)               by leading or eliciting evidence of B's previous convictions, when they are relevant to A's evidence. 

Proof of a particular conviction of B may be relevant, for example, when it helps A's defence to prove that B was not available to commit the offence charged because he was in prison: Miller [(1952) 36 CrAppR 169 at 171; [1952] 2 AllER 667 at 668]. When A and B are jointly charged, and B leads evidence of his own lack of propensity to commit the offence. A may elicit B's previous convictions which suggest that he does have that propensity […].' (emphasis added) 

In R v Cheema [1994] 1 AllER 639; (1994) 98 CrAppR 195 [[1994] 1 WLR 147] Lord Taylor of Gosforth CJ, delivering the judgment of the Court of Appeal, commented at pages 648 – 649 & 204 respectively: 

'[I]n our judgment, what is required when one defendant implicates another is simply to warn the jury of what may very often be obvious – namely that the defendant witness may have a purpose of his own to serve.' 

See also: R v Cain (1994) 99 CrAppR 208; [1994] 1 WLR 1449; [1994] 2 AllER 398 & R v Douglass (1989) 89 CrAppR 264; [1989] RTR 271; [1989] CrimLR 569. 

Refer also to the law relating to the 'Joinder Of Charges In Respect Of Multiple Defendants' which is examined commencing on page 95.

[14.2.4] Cross – Examination Of Co – Defendants Generally 

In R v Paul & Mc Farlane (1920) 14 CrAppR 155 [[1920] 2 KB 183; (1920) 26 CoxCC 619] Lord Reading CJ, delivering the judgement of the Court stated at page 156: 

'It was argued that although the Act of 1898 [, referring to the Criminal Evidence Act 1898 (UK), ] made a person charged a competent witness for the defence, yet if the person charged goes into the box and says that he is guilty, he cannot be cross – examined by the prosecution, as the issue is then dead. But that argument is fallacious. When a person charged goes into the witness box to give evidence for the defence, and has been sworn, he is in the same position as an ordinary witness, and is therefore liable to be cross – examined. It is immaterial whether he stands mute, or whether he gives evidence for the defence or the prosecution. It is not what he says in the witness – box that renders him liable to cross – examination, but the fact that he is called as a witness for the defence. As soon as a person goes into the witness – box for the defence, and is sworn, counsel for the prosecution is entitled to cross – examine him.' 

[14.2.5] Questioning Credibility Of Witnesses, Other Than A Defendant 

Witnesses may be 'cross – examined' as to their 'credit'. The issue for a Court to decide is whether a witness should be believed and therefore, what 'weight' should be given to his/her evidence. 

In R v Sweet – Escott (1971) 55 CrAppR 316 Lawton J held at page 320: 

'Since the purpose of cross – examination as to credit is to show that the witness might not be believed on oath, the matters which he is questioned must relate to his likely standing after cross – examination with the tribunal which is trying him or listening to him.' (emphasis added) 

Such issues may include antecedents, lifestyle and associates. Therefore, police officers may be asked about any relevant criminal or disciplinary charges which have been proven, see R v Edwards [1991] 2 AllER 266; [1991] 1 WLR 207; (1991) 93 CrAppR 48; [1991] CrimLR 372. 

See also: R v Funderburk [1990] 2 AllER 482; [1990] 1 WLR 587; (1990) 90 CrAppR 466; [1990] CrimLR 405.

 As regards the 'Proof Of Previous Convictions' refer to page 305. 

[14.2.6] Rule In Browne v Dunn 

In The State v Simon Ganga (Unrep. N1232 (PNG); 25, 26 May & 7 June 1994) Sevua J stated: 

'In respect of defence counsel's failure to put his client's defence to the prosecutrix [ie., the complainant in a 'sexual' offence] in cross – examination, let me repeat here that there is an important rule of practice known as the rule in Browne v Dunn (1894) 6 R 67 (HL) […]. […] 

The essence of this rule, if I may be allowed to put it in a more simplified form is that, the accused's case should be put to the prosecution witnesses in cross – examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain. His Honour, Hart J, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR at 16 formulated the rule as follows: 

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross – examiner's intention, to rely upon such matters, it is necessary to put to an opponent's witness in cross – examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explaination or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67." 

[… T]he fundamental essence of the rule is that, it is desirable for a party to put it's case to the opposing party in cross – examination so that, the opposing party can afford an opportunity to refute or explain the matters that are being put forth in cross – examination. 

[…] It is obvious in my view that the defence counsel is under a duty to comply with the rule, not only does this duty arise from his obligation to his client, but also his obligation to this Court. It behoves counsel and he is under strict obligation to put his instructions to the prosecution in cross – examination if the case his client relies upon is consistent with his instructions. 

In R v Robinson [1977] QdR 387, where the conduct of case by counsel was under scrutiny, if I could use that phrase, and the Court was considering whether, discrepancy may be regarded in evaluating evidence. Dunn, J of the Queensland Court of Appeal said at 394: 

"By contrast, cross – examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he 'puts' occurrences to witnesses, he puts them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for which perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questioning based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come from, it seems to me to be quite permissible for a Judge to ask the jury to have regard to the discrepancy in evaluating the evidence." 

[…] Of course, the Court is entitled to infer from the defence case and defence counsel's action whether the version given by the accused in his defence were matters contained in his instructions to his lawyer. Because the accused's version has not been put to the prosecutrix during cross – examination, the Court could draw a reasonable inference that what the accused finally said in his evidence did not form his instructions to his counsel. However, that did not mean his evidence should be rejected for that reason. The Court should in my view consider the general rule of fairness apart from the issue of weight. For instance, in Bulstrode v Trimble [1970] VR 840, His Honour, Newton J observed at p. 846, that there were two aspects to be considered. Firstly, there is a rule of practice or procedure based upon general principles of fairness to witnesses and a fair trial between the parties. And secondly, there is a rule relating to the weight or cogency of the evidence.' (emphasis added) [words in brackets added] 

In Awoda v The State [1984] PNGLR 165 the Supreme Court stated at page 172: 

'We would take this opportunity of repeating and adopting what His Honour [Prentice J in The State v Ogadi Minijipa [1977] PNGLR 293] had to say at 296 – 297: 

"Before concluding, I should again mention […] that defence counsel do their clients no good by not opening in cross – examination of State witnesses the version upon which the defence case relies. It is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit – if this course be taken.

I draw counsel's attention again to the old case of Browne v Dunn (1894) 6 R 67 HL […].

[…] 

The case of R v Hart (1932) 23 CrAppR 202 illustrates the converse case – that if the prosecution intends to ask the tribunal to disbelieve a witness – it is right and proper that that witness be challenged by cross – examination while in the witness box and it made plain that his evidence is not accepted."' (emphasis added) [words in brackets added] 

Therefore, prosecutors should: 

[i] record carefully what the defence 'puts' to the prosecution witness/es, ie., the basis of the defence case in compliance with the rule in Browne v Dunn (supra); 

[ii] record carefully what evidence the witness/es for the defence give; and 

[iii] advise the Court in their final submission if there is any major discrepancies. 

See also: Cyne v Bar Association of NSW (1960) 104 CLR 186; The State v Saka Varimo [1978] PNGLR 62; The State v Manasseh Voeto [1978] PNGLR 119 & John Jaminan v The State (No. 2) [1983] PNGLR 318.

[14.2.7] Hostile Witnesses 

The law relating to the 'cross – examination' of 'Hostile Witnesses' is examined commencing on page 288. 

[14.3] Re - examination 

[14.3.1] Purpose 

In R v Szach (1980) 23 SASR 504 the Court held: 

Re – examination is permitted for the purpose of explaining matters arising out of the cross – examination. It is to be permitted "whenever an answer or answers given by a witness in cross – examination would, unless supplemented or explained in the manner proposed by the re – examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourable to the side responsible for calling the witness, and that represents a distortion, or an incomplete account of the truth as the witness is able to present it. 

[14.3.2] Leading Questions 

'Leading questions' should not be asked in 're – examination', see Ireland v Taylor [1949] 1 KB 300 at page 313. 

The law relating to 'Leading Questions Generally' is examined commencing on page 341. 

[14.3.3] Refreshing Memory From Notes 

In R v Sutton (1992) 94 CrAppR 70 the Court of Appeal held at page 73: 

'All of us have had experience of cases where a witness has departed from his statement on some point of detail which may be very material, such as a date, as well as cases where a witness has omitted some point of detail. We do not think there is any difference in principle between those two. It is, of course, easy to forget details. But it is just as easy, as we all know, for memory to play us tricks. Provided the proper basis is laid, a witness may be asked to refresh his memory in both types of case. It is not a valid objection in the latter case to say that the witness is being cross – examined by his own counsel. The essential question is, as was said by this Court in Richardson [(1971) 55 CrAppR 244; [1971] 2 QB 484, that the court should not deprive itself of its best chance of hearing the truth. Then it is said that there is no reported case of a witness being allowed to refresh his memory in re-examination. But why should he not? That is just the sort of artificial rule which should, in the light of Richardson, be eschewed.' (emphasis added) 

See also: R v Foggo, Ex parte Attorney – General [1989] 2 QdR 409 & Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398. 

The law relating to 'Refreshing Memory From Notes' is also examined commencing on page 295.

 [14.3.4] Hostile Witnesses 

A witness may be treated as a 'hostile witness' during 're – examination', see R v Powell [1985] CrimLR 592.

However, in R v White [1970] QWN 46 a witness was called by the prosecution and gave evidence which was inconsistent with the evidence she had given at the 'Preliminary Investigation / Inquiry' with signed statements which she made to the police. The inconsistencies were apparent during 'examination – in – chief' of the witness but the prosecutor did not apply to have the witness declared 'hostile' until the conclusion of the 're – examination' of the witness. 

The Court held: 

If the prosecutor had applied to have the witness declared 'hostile' during the course of 'examination – in – chief' and had been successful, the whole tenor of the cross – examination of the witness may have been different and as a consequence the application made during the course of 're – examination' should be refused. 

The law relating to 'Hostile Witnesses Generally' is examined commencing on page 288.