Trial on Indictment II

Procedure Overview

A trial in the Circuit Court or Central Criminal Court involves the following steps

• The Jury is empanelled and sworn in.
• The Judge may make initial remarks
• The prosecution may make an opening speech and present its witnesses.
• The Defendant’s counsel cross-examines the witness and the prosecution may re-examine them
• At the end of the prosecution’s case, the defence may apply for an acquittal by way of a Judge’s direction on the basis that there is no case to answer.
• This defence may present its evidence if it chooses to do so.
• Each defence witness is examined, cross-examined by the prosecution and re-examined as necessary.
• The Prosecution and defence then make their closing speeches.
• The judge directs the jury in relation to the law.
• The jury deliberates and delivers a verdict in open court.
• After conviction, the trial is usually adjourned for sentencing.

In the Special Criminal Court, no jury is empanelled. The above steps are applicable without the involvement of the jury.

Where persons are tried jointly, the following procedure applies.

• The prosecution will present its case as above
• Each co-accused may cross-examine each witness in turn
• Each may apply for a directed acquittal to the judge.
• Each may then offer his evidence, and each may be cross-examined on behalf of the other co-accused as well as the prosecutor.

Presentation of Evidence

The examination in chief or direct evidence is elicited by the party who calls the witness.  He is to provide a narrative of the relevant material.  Counsel for the party who calls the witness will seek to unfold the relevant narrative, by way of admissible evidence.

Generally, evidence is limited to matters of which the witness has first-hand perceived knowledge.  Opinion evidence may not be given, other than by a witness, first accepted as a witness.

Evidence in the examination in chief may not use leading questions to elicit a reply in relation to matters in controversy. Leading questions may be permitted by accepted without objection in relation to matters that are not seriously contested, such as introductory and contextual evidence, as a precursor to evidence on the contended matters.

Leading Questions

Leading questions are those which are too narrow and request a particular answer typically “yes” or “no”.  They also include questions that assume facts that are in dispute.  They may accordingly imply that such and such is already proved or accepted when it is not the case.

Leading questions are generally allowed in examination in chief in relation to introductory and formal matters, the identification of parties in court, agreed and uncontested facts and in some cases refreshing memory.

Leading questions may be permitted by no objection being taken to it.  The other party may be satisfied to allow them where the evidence is not controversial.  The judge may allow leading questions where deemed necessary.

Cross-examination

A party may choose not to cross-examine a witness.  However, this may have serious consequences.  If it is intended to call a witness to contradict and rebut the witness’ evidence, a so-called foundation must be laid in the cross-examination.  He must be given the opportunity to refute the rebutting witness. The substance of the evidence concerned must be put to the witness.

Cross-examination is designed to elicit the facts useful for the examining party’s client.  It seeks to discover the truth and test the credibility of the witness’s accuracy of recollection. It seeks to elicit and procure facts that are helpful to the examining party’s case.

The accused cannot be compelled to give evidence.  Accordingly, he may not be cross-examined unless he chooses to give evidence.

In rape and sexual offence, questions about prior sexual history with any person is precluded without the leave of court.

The right to cross-examine witnesses is an essential part of fair procedures and a trial in due course of law.  It has been recognised as an element of the right to fair procedures under the European Convention on Human Rights.  It is part of the so-called right of confrontation in a trial.

The obligation to disclose evidence of assistance which is of assistance to the accused imports the right to cross-examine and confront the witness with the relevant facts.

Re-examination

Re-examination is the final stage in the examination of a witness.  The party is re-examined by the counsel for the party who has called him.  The purpose of re-examination is to redress the effect of cross-examination.

The rules applicable to examination in chief applies.  Re-examination must be limited to matters that arise out of the cross-examination.

Re-examination may explain evidence given in cross-examination.  If a contradiction or inconsistency has been shown, the examination may give an explanation that puts it in a fresh light.

Relevance

The judge may disallow questions in cross-examination according to principles of justice and fairness. The judge has jurisdiction to ensure that the trial is properly conducted and that it does not depart from standards of fairness. Questions may be disallowed if they are demeaning personally, bullying, intimidatory, belittling or oppressive to the witness.

Evidence must be relevant to facts and issues.  Where evidence is given by one party, the other party may rebut it by calling other witnesses or offering other admissible evidence.

Where the answers relate to so-called collateral issues, being those which are not directly in issue, answers given on cross-examination are usually final and may not be contradicted by new evidence. The purpose is to maintain a limit on the scope of the enquiry.  Collateral issues may relate to matters and issues such as credibility.

There are exceptions to the above principle, that an answer on a collateral matter may not be rebutted.  In particular, matters that go to the credibility and reliability of the evidence of the witness including prior conviction, bias, potential bias, reputation for untruthfulness, a physical or mental disability affecting the witness and previous inconsistent statements may be raised.

Previous Consistent Statement

It is generally inadmissible to refer to a previous consistent statement, offered in examination or re-examination. The purpose is to prevent the manufacture of self-serving statements.

There are exceptions to the rule. The Judge may allow the evidence in special circumstances. One exception is evidence that a witness has identified the accused on previous occasions evidence may be admissible to reinforce identification at the trial.

In prosecutions for rape and sexual offences, recent complaints after the offence are admissible.

A previous statement may be given to rebut an allegation of recent fabrication.

Previous Inconsistent Statement

A hostile witness is one who is called to give unexpected unfavourable and disappointing evidence having given favourable evidence before.  A party who has called such a witness may apply to the Judge to have it declared hostile.  If the witness is so declared, this will permit cross-examination of the witness by the party who has called the witness.

A previous inconsistent statement may only be used for the purpose of challenging credibility.  The previous statement is not evidence in itself.  Criminal Justice Act 2007 makes provision for admission of previous statements in circumstances where there is a risk of witness intimidation.

The Criminal Procedure Act 1865 deals with the use of prior inconsistent statements.  If a witness on cross-examination as to a former statement does not distinctly admit that he has made such a statement, proof may be given that he did in fact make it.  Before such proof can be given, the circumstances of the statement sufficient to designate the particular occasion must be mentioned to the witness and he must then be asked whether or not he has made such a statement.

A witness may be cross-examined as to previous statements made by him in writing or reduced to writing in relation to the subject matter of the proceedings without such writing being shown.  If it is intended to contradict the witness by means of the statement, his attention must first before such contradictory proof be given be called to those parts of the writing that are to be used for the purpose of contradicting him.  The judge may at any time during the trial require the production of the writing for inspection.  He may thereupon make use of it for the purpose of the trial as he thinks fit.

The prior inconsistent statement is admissible only for the purpose of undermining the witness’s credibility and not as evidence of the truth of its content.  The written inconsistent statement is not evidence in itself.

The Criminal Justice Act 2006 sought to deal with witness intimidation in the case of so-called gang-related crimes. It gives statutory authority to judges to allow pre-trial witness statements to be admissible if the witness refuses to give evidence, denies making the statement or gives evidence in court that is inconsistent with the statement.  In this case, the jury may accept the statement in place of the account in court.