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This fact sheet describes the law of evidence as it relates to the treatment of
witnesses who give evidence in criminal cases - the course of evidence.
EXAMINATION IN CHIEF
“I swear by Almighty God that the evidence I shall give shall be the truth, the
whole truth and nothing but the truth”.
“I do solemnly and sincerely and truly declare and affirm that the evidence I
shall give shall be the truth, the whole truth and nothing but the truth”.
Leading Questions - are those that suggest the answer required, or those
that assume the existence of disputed facts. For example, a question such as
“What did you do when you saw Mr X the manager push Mr Z into the circular
saw, causing him to slice his finger off?” Certain facts which are not in
contention such as name and occupation etc., can be elicited by the advocate
by leading questions, and these are not objected to by the other party as it
saves court time.
The exception to this general rule is where a witness called by a party decides
not to tell the truth, and the judge decides that they clearly have no desire to
do so, showing animosity to the party calling him/her. In such cases, the
judge may direct that the person is treated as a hostile witness, and leading
questions may be asked.
Refreshing the Witness’s Memory - The general rule is that a witness is not
allowed to read from their evidence in the form of a statement etc. prepared
for the purpose of litigation. The witness is expected to have a clear
recollection of such events, a copy of which the advocate will have in front of
him/her (i.e., in a witness statement document). The reason being that it is
the oral evidence given in court that is the evidence, and not the document.
A witness may, however, refresh their memory from such a document before
going into court, but in such circumstances it is desirable for the prosecution
When a witness steps into the witness box the rules become stricter. A
witness may refresh their memory from a document in court in the following
situations:
The document must be either made or verified by the witness in order that it
may be relied on to refresh memory. Decided cases have allowed witnesses
to refresh their memory from notes made by others (e.g., police officers,
colleagues etc.) but only where the notes had been read back to the witness
by the maker whilst the events were still fresh in the witness’s memory, and
the witness knew the statement to be correct. Police officers have also been
allowed to collaborate following an interview and agree the form of a record of
the interview which was written by one officer, and then both officers used the
notes to refresh their memory. (R v Mills and Rose; R v Bass; R v Adams).
It is important to note that the document used to refresh the witness’s memory
(e.g., a notebook) is not itself evidence. The witness’s oral evidence is what
counts. However, the court may inspect the document, and the witness can
be cross-examined on the document. If questions are asked about entries
other than those relied on by the witness to refresh his/her memory, the party
that called the witness may apply to have the document entered as an
exhibit. The effect of this is that the document becomes evidence in itself.
Clearly, if the document does not contain anything embarrassing to the party
who called the witness, or the witness himself/herself, the admission of the
document would be potentially damaging to the other side, as the court can
reinforce its memory of the witness by a written version of the story. It may
also boost the witness’s credibility in the eyes of the court, as their oral
evidence is exactly the same as the notes taken, and there is often an
involuntary response in the court’s mind that what was written and said must
therefore be true! Such a document is said to go to the witness’s consistency
and thus credibility. (R v Virgo).
The general rule regarding previous consistent statements is that they are
inadmissible, as they are self-serving.
There are some exceptions to this rule, namely where someone who is
alleging to be a victim of a sexual offence had previously made a complaint
about the matter shortly after the occurrence; or where it is suggested by the
other side in cross-examination that the witness has just made the story up;
or the first response of an accused made to the police whilst being questioned
about an offence. In addition, statements that were said in the heat of the
moment, and those relating to identification of the accused, may also be both
self-serving and admissible.
CROSS-EXAMINATION
The general rule is that all witnesses may be cross-examined by the other
side. Failure to do so amounts to acceptance of that evidence given by that
witness in chief and prevents the advocates from basing their case on a
contradictory account.
witness denies that he/she has a previous criminal conviction (s.6 Criminal
Procedure Act 1865). In addition, evidence in rebuttal can be adduced where
it is suggested that the witness is biased, or if there is medical evidence to
suggest that the witness is unreliable due to a physical or mental defect. (R v
Mendy and Toohey v Metropolitan Police Commissioner). A witness’s
evidence can also be similarly rebutted where he/she is said to have a
reputation for untruthfulness by a witness for the party carrying out the cross-
examination.
RE-EXAMINATION
CLOSING SPEECHES
Following the close of the defence case the parties make closing speeches to
the court, summarising and emphasising their submissions and evidence.
In a criminal case the prosecution makes the first speech; the defence makes
the second.
THE ACCUSED
The courts have recently interpreted the effect of s.35 and have outlined a
model direction to the jury to be made by a judge in summing up. In R v
Cowan, Gayle and Ricardi the direction was said to have to cover:
the fact that the burden of proof lay with the prosecution
that the accused is entitled to remain silent
that the jury could not infer guilt by the accused’s silence unless they took
the view that the case against the accused is made out on other evidence
produced at trial (i.e., the accused cannot be convicted solely by an
adverse inference)
that an adverse inference may be drawn if the jury believe that the reason
the accused has not testified is because he/she has no answer to the
allegations that would stand up to cross-examination.
The Criminal Evidence Act 1898 section 1 preserves the common law
restrictions, but alters the position where the following apply:
PREVIOUS CONVICTIONS
Where the similar fact doctrine applies, evidence of the details of previous
convictions or commissions of crimes may be brought before the court. In
addition, where the defendant’s good character has been raised, the
prosecution may adduce evidence of a previous conviction (but only the fact
of the conviction - not the details). Where s.1 of the Criminal Evidence Act
REFERENCES