PRINCIPLES GOVERNING
THE CONDUCT OF A DEFENCE
Before I embark on a consideration of the whole of the evidence in order
to decide whether the prosecution has proved its case beyond reasonable
doubt I consider it necessary to refer to some principles governing the
conduct of a defence.
If the accused intends to suggest that a prosecution witness is not
speaking the truth on a particular point the witness’s attention must be
directed to that fact in cross-examination. In support I can do no better
than refer to the words of Lord Chancellor Herschell in Browne v Dunn
(1893)
6 R 69 where his Lordship said at p 70,
"Now,
My Lords, I cannot help saying that it seems to me to be absolutely essential
to the proper conduct of a cause where it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct his
attention to the fact, by some questions put in cross-examination showing
that that imputation is intended to be made, and not to take his evidence
and pass it by as a matter altogether unchallenged and then, when it is
impossible for him to explain, as perhaps he might have been to do if such
questions had been put to him, the circumstances which it is suggested
indicate that the story he tells ought not to be believed, to argue that
he is a witness unworthy of credit. My Lords, I have always understood
that if you intend to impeach a witness you are bound, whilst he is in
the box, to give him an opportunity of making any explanation which is
open to him, and, as it seems to me, that is not only a rule of professional
practice in the conduct of a case, but is essential to fair play and fair
dealing with witnesses."
The effect of a failure
to cross-examine a witness on a material point was lucidly explained by
Raja Azlan Shah CJ (Malaya) (as His Highness then was) in speaking for
the Federal Court in Wong Swee Chin v PP (1981) 1 MLJ 212 at p 213
in the following terse words,
"Mr Jagjit
Singh also raised as one of his main grounds of appeal that the trial judge
erred in law when he held that the failure of the defence to cross-examine
the two prosecution witnesses on the ammunition actually found in the trouser
pockets of the appellant at the time of his arrest (the subject-matter
of the trial charge) consituted a clear admission of the charge of possession
by the appellant. We consider that statement of the law as a misdirection.
A correct statement of the law is that failure of the defence to cross-examine
the prosecution witnesses on the matter merely goes to the credibility
of their testimony, to wit, the fact that they found the ammunition in
the appellant’s trouser pockets remains unshaken. On this point we need
only say there is a general rule that failure to cross-examine a witness
on a crucial part of the case will amount to an acceptance of the witness’s
testimony. But as is common with all general rules there are also exceptions
as pointed out in the judgment of the Supreme Court of New Zealand in Transport
Ministry v Garry (1973) 1 NZLR 120 where Haslam J said at page 122:-
‘In Phipson
on Evidence 11th edition paragraph 1544 the learned authors
suggest examples by way of exception to the general principle that failure
to cross-examine will amount to an acceptance of the witness’s testimony,
viz, where
‘ … the
story is itself of an incredible or romancing character, or the abstention
arises from mere motives of delicacy … or when counsel indicates that he
is merely abstaining for convenience, e.g., to save time. And where several
witnesses are called to the same point it is not always necessary to cross-examine
them all’ ."
The nature of the defence
is to be ascertained not only from the evidence of the accused himself
but also from the trend of the cross-examination of the prosecution witnesses
and from the arguments of the accused’s counsel at the close of the trial
(see Kuli and Ors v Emperor AIR 1930 Cal 442). It is therefore important
for the accused to put his essential and material case to the prosecution
witnesses in cross-examination. This is a principle of essential justice
and was neatly stated by Mukhrji J in AEG Carapiet v AY Derderian AIR
1961 in the following terms:
"The
law is clear on the subject. Wherever the opponent has declined to avail
himself of the opportunity to put his essential and material case in cross-examination,
it must follow that he believed that the testimony given could not be disputed
at all. It is wrong to think that this is merely a technical rule of evidence.
It is a rule of essential justice. It serves to prevent surprise at trial
and miscarriage of justice, because it gives notice to the other side of
the actual case that is going to be made when the turn of the party on
whose behalf the cross-examination is being made comes to give and lead
evidence by producing witnesses. It has been stated on high authority of
the House of Lords that this much a counsel is bound to do when cross-examining
that he must put to each of his opponent’s witnesses in turn, so much of
his own case as concerns that particular witness or in which that witness
had any share. If he asks no question with regard to this, then he must
be taken to accept the plaintiff’s account in its entirety. Such failure
leads to miscarriage of justice, first by springing surprise upon the party
when he has finished the evidence of his witnesses and when he has no further
chance to meet the new case made which was never put and secondly, because
such subsequent testimony has no chance of being tested and corroborated."
On the effect of a failure
by the defence to put its case to the prosecution witnesses useful reference
may be made to Alcontara a/l Ambross Anthony v PP (1996) 1 MLJ 209
where Edgar Joseph Jr FCJ said at p 218,
"Speaking
generally, in a criminal trial, the whole point and purpose of the defence
having to put its case to such of the prosecution witnesses as might be
in a position to admit or deny it, is to enable the prosecution to check
on whether an accused’s version of the facts is true or false, and thus
avoid the adverse comment, that the defence is a recent invention — in
other words, ‘kept up its sleeve’, as it were — and revealed for the first
time when the accused makes his defence from the witness box or the dock,
thus detracting from the weight to be accorded to the defence. However,
failure on the part of the defence, as aforesaid, can never, by itself,
relieve the prosecution of its duties of establishing the charge against
the accused beyond reasonable doubt.
… it is
settled law that, although a court may view with suspicion a defence which
has not been put to the appropriate prosecution witnesses who might have
personal knowledge of the points at issue, the court is still bound to
consider the defence, however weak, and to acquit if not satisfied that
the prosecution has discharged the burden of proof which tests upon it."
The position is, however,
different when the new defence raised could not have been raised at an
earlier stage (see Emperor v Kameshwan Lal & Ors AIR 1933 Pat
481).
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