3. Calling Witnesses.pdf

3 . Calling Witnesses Defendants have the right to give evidence and examine witnesses Bill of Rights Ordinance 11 (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality — (...

3 . Calling Witnesses Defendants have the right to give evidence and examine witnesses Bill of Rights Ordinance 11 (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality — (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; Witness evidence must be given by a witness sworn to tell the truth Oaths and Declarations Ordinance (Cap 11) 5 1) An oath may be administered and taken in the following form and manner — The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say o r repeat after the officer administering the oath the words “I swear by Almighty God that ”, followed by the words of the oath prescribed by law. 2) The officer shall, unless the person about to take the oath objects thereto, or is physically incapable of so taking the oath, administer the oath in the form and manner aforesaid: Provided that, in the case of a person who is neither a Christian nor a Jew, the oath may be administered in any manner which is appropriate to his religious belief. 3) In this section, officer ( ⼈ 員 ) means a person authorised to administer an oath. 7 1) A person, upon objecting to being sworn, shall be permitted to make his affirmation instead of taking an oath for any purpose for which an oath is required by law In dealing with witnesses – two questions to examine: - Competence – Whether a potential witness is competent to give evidence - Compellability – Whether a witness may be lawfully compelled to give evidence 3.1 Competence General Presumption of Competence : Everyone is presumed to be competent unless the contrary is shown. Exceptions: (1) Limited Companies (2) Young Children (see below) (3) Mentally Incapable Witnesses (see below) (4) Husband and Wife (see below) (5) Defendant for the Prosecution 3.1.1 Exception – Child Witnesses Evidence Ordinance 4 Evidence given by children* 1) In this section, child ( 兒童 ) means a person under 14 years of age . 2) A child’s evidence in criminal proceedings shall be given unsworn and shall be capable of corroborating the evidence, sworn or unsworn, given by any other person. 3) A deposition of a child’s unsworn evidence may be taken for the purposes of criminal proceedings as if that evidence had been given on oath. ⭑ R v Lam Chi Keung (1997) - Default rule is that children are competent, unless the contrary is shown - Given that the child testifies unsworn, moreover, the judge must usually bring home to them the importance of telling the truth ⭑ DPP v M (1977) - The test as to whether a child is c ompetent is a two - fold test : 1) Can they understand the questions put to them? 2) Can they give intelligible answers? (Makes sense to the questions asked) R v Powell (2006) Ratio If the child witness is very young, the judge should do another appraisal to determine if the child is competent. Facts The judge found a 3½ - year - old girl competent to give evidence, and the defendant was convicted. Held The Court of Appeal considered competency should have been considered again after the girl’s test imony, and that in this case, a reappraisal, on the basis that she was “simply not intelligible in the context of the case,” should have been made. Judge did a competency test, but because of the age, they should do another appraisal to determine if the ch ild is competent. However, this did not reverse the judgment. R v B (2010) Ratio See Holding for procedural rules Facts Evidence of a 3 year old child who was raped by the defendant. Held The judge found the witness competent “when simple questions were asked, the defence were able to put their cases sufficiently to ensure that the defendants have a fair trial. Inconsistencies … or matters of credibility and reliability and not competence … the interpretation of those silences … goes to cre dibility and reliability and not competence. The jury observed X with care throughout and are capable, properly directed, of coming to their own conclusions … It may indeed be that this case concerns a child at the edge of competency but, in my judgment, h aving seen and heard her, although inevitably her intelligibility and, therefore, her ability to be understood were at times difficult, X did pass the test of understanding and intelligibility sufficiently for me to say that she is and was a competent witn ess.” (para. 26) The judge instructed/reminded/advised the jury that: - P rocedure adopted was not “intended to pre - judge the evidence” the child would give - The question whether she was “reliable, credible and truthful” had to be decided in exactly the same way as it would with any other witness, based on her testimony “both in the interview and at court” - They should take 5 specific matters which were said to undermine confidence in X’s credibility into account Matters to be taken into account 1) the chil d’s age at the time of the alleged offence, the date of the interview, and her age when she gave evidence; 2) the various gaps in time which might affect her memory; 3) the sequence of events which culminated in her evidence at trial; 4) the need for the jury to make their assessment of whether she was able to understand and be intelligible both in her video interview and her evidence; 5) the way she gave evidence, and in particular whether her evidence about what the appellant had done was spontaneous or simply resp onding to questions which suggested the answers, and whether she agreed with everything suggested to her, or whether she was prepared to ‘stick to her guns and disagree’ when she thought the question was wrong The judge also asked the jury to consider the way in which X had given evidence, making appropriate allowances for her age: “The interpretation of those silences has been placed in question. Was it or may it have been a silence because she was being stubborn, because she was simply refusi ng to answer, or because she knew what had happened but could not bring herself to repeat before others something which upset her? Was she silent because she had no answer to the question, having been caught out in a fib, or was it or may it have been beca use she did not understand? Was it or may it have been because the language concepts failed her? Those are matters for your consideration and on which you should come to your own conclusions without speculating.” The judge also reminding the jury of the criticisms directed by the defence at the way in which the ABE interview had been conducted. R v Lam Chi Keung (1997) Facts - Concerned allegations of indecent assault by a neighbour on a girl aged 12 - A videotaped interview by social workers was accepted as the evidence - in - chief of the girl; at the trial, after a showing of the video, she gave evidence by live television link - At cross - examination, D’s counsel demonstrated her testimony varied The magistrate convicted the D, finding the girl’s test imony credible Issue D appealed, on the basis that the magistrate had failed to determine if the girl was competent to give evidence, that he had not properly brought home to her the importance of telling the truth, that the approach adopted violated D’s right to a fair trial, and that the magistrate had not given proper regard to inconsistencies in the girl’s evidence Held The first claim was based on the idea that even under the new rules, the magistrate should inquire into competency before admitting evidence; the court rejected this claim, however. - Note: the court was a little vague here - perhaps best to understand them as having determined that the child witness had passed the competency test - I.e., the child must pass the general compete ncy test, but no more - Magistrate didn't do it in a very procedurally clear way, but the appellate court felt that it’s done In response to the second claim, the court observed the magistrate had noted to the witness the importance of her telling the truth, and considered this was enough, observing the judge has discretion in this area - Just telling the witness that the truth is important is enough The court found that the third claim also failed, observing D was still protected by the beyond a reasonable doubt standard Finally, the court considered that the magistrate demonstrated awareness of the inconsistencies – he merely wasn’t persuaded by the m 3.1.2 Exception – “Person of Unsound Mind” Evidence Ordinance 3 Incompetency from immature age or unsoundness of mind The following persons only shall be incompetent to give evidence in any proceedings — (a) (Repealed 70 of 1995 s. 2) (b) persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly; and no person who is known to be of unsound mind shall be liable to be summoned as a witness without the consent previously obtained of the court or person before whom his attendance is required. The test is the same as children ⭑ DPP v M (1977) - The test as to whether a child is competent is a two - fold test : 1) Can they understand the questions put to them? 2) Can they give intelligible answers? (Makes sense to the questions asked) - In practice very few are excluded on this basis - instead, the preference is to receive their testimony, and allow the opposing party to challenge it - A special warning is necessary where the only available evidence is the uncorroborated evidence of a mentally incapacitated person Witness competency is determined by th e judge, at a voir dire hearing R v Deakin (1994) Facts D was charged with assaulting a woman with Down syndrome Issue Whether the complainant was competent to testify. - In the trial, the judge allowed evidence on the complainant’s competency, from two experts (psychologists), to be heard in the presence of the jury Held The Court of Appeal affirmed such questions must be heard in a voir dire hearing, in the absence of the jury. - The court observed this was because it would be hard for the jury to put what they heard out of their minds, if the judge determined, after hearing from the psychologists, that they weren’t competent - Court still upheld the conviction. 3.2 Compellability Default Position : all competent witnesses are comp ellable. If a compellable witness refuse to give evidence, they may be summoned by the court on contempt charges. Exceptions to the default position : Sovereigns, Banks are not compellable in any proceedings other than those by or against the bank (EO, Section 20(2)), Judges are not compellable witnesses relating to their judicial functions (see Warren v Warren (1997)), Jurors are not compellable about jury discussions Witnesses are immune from civil liability in respect of evidence they give in Court ( Ordinary witnesses). Exception – Experts who negligently give evidence may be liable Once a witness gives evidence, they are exposed to cross examination and, therefore, hostile questioning 3.2.1 Exception – Spouses Old Rule – Evidence Ordinance Section 6 “ Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings. ” This general rule is n ow subject to a significant statutory exception via C PO Section 57 - Section 57(1) : The accused’s spouse can give evidence on behalf of the accused, co - accused or give evidence for the prosecution, unless subsection (5) applies. - Section 57(2) : The accused’s spouse is compellable to give evidence on behalf of the accused, subject to subsection (5) - Section 57(3) : Subject to Section 57(6), the accused’s spouse is compellable to give evidence – ­ Section 57(3)(a): For the prosecution, but only in re spect to any specified offence that the accused or co - accused is charged with ­ Section 57(3)(b): For the co - accused, but only in respect to any specified offence the co - accused is charged with - Section 57(4) : “Specified offence” in Section 57(3) refers to t he following: ­ Section 57(4)(a): “i t involves an assault on, or an injury or threat of injury to, the husband or wife of the accused; ” ­ Section 57(4)(b): It involves causing the death of, an assault, on, or an injury or threat of an injury to a child of a f amily who is under 16 years old or is mentally incapacitated ­ Section 57(4)(c): It is a sexual offence alleged to have been committed on a child of a family who is under 16 years old or is mentally incapacitated ­ Section 57(4)(d): “ it consists of attemptin g or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of ” above offences - Section 57(5) : Where the husband and wife are jointly tried, neither spouse is a competent witness for the prosecution - Section 57(6) : S ection 57(5) is inapplicable to either spouse who is no longer liable to be convicted in the trial (whether as a result of pleading guilty or any other reason) - Section 57(7) : The privilege of husband and wife and evidence of access do not apply to the spo use of an accused if they are giving evidence for the prosecution or on behalf of the accused or a co - accused under subsection (2) or (3). - Section 57(8) : The privilege against incrimination of self or spouse in criminal proceedings does not apply to the sp ouse of an accused if they are giving evidence for the prosecution or on behalf of a co - accused under subsection (3). - Section 57(9): A former spouse of an accused can give evidence and is compellable as if they had never been married to the accused, subjec t to subsection (10). - Section 57(10): A former spouse of an accused cannot be compelled to give evidence for the prosecution or on behalf of a co - accused in relation to matters that occurred during their marriage, unless they would be compellable under sub section (3) if they were still married to the accused. - Section 57(11) : The prosecution cannot question or comment on the failure to call the spouse of an accused as a witness. - Note – in civil proceedings, spouses are competent and compellable (Evidence Ord inance, §5) When couples aren’t compellable: 1. Divorced spouses aren’t competent or compellable for matters that occurred during that marriage 2. Where they make an application for exemption under CPO Section 57A(2) Criminal Procedure Ordinance 57A (2) Where an application for an exemption is made to a court under subsection (1) and the court is satisfied — (a) that, if the husband or wife were to give evidence for the prosecution or on behalf of the co - accused, as the case may be, there would be a subst antial risk of — (i) serious harm being caused to the relationship between the husband or wife and the accused; or (ii) serious emotional, psychological or economic consequences for the husband or wife; and (b) that, having regard to the nature and gra vity of the offence charged and the importance at the trial of the evidence that the husband or wife is in a position to give, there is insufficient justification for exposing the husband or wife to that risk, HKSAR v. Lai Tuin Hing [2007] 4 HKLRD 149 Ratio Where the spouse gave material evidence for the prosecution without being informed that she was not compellable, there will be an irregularity Facts - D was charged with murder - D’s spouse, who gave evidence for the prosecution, was not informed by any court, the prosecution or the police that she was not compellable Held - While the Court of Appeal found this was an irregularity, it considered it a non - material one – i.e., not su f ficient grounds on which to reverse - It based this finding both on the fact the evidence “was of no great importance,” and on the fact that “at no stage did [D’s wife] indicate any reluctance to give such evidence” - The Court of Appeals observed the error would have been material if the D had been more seriously prejudiced by the evidence, however 3.2.2 Exception – The Accused The accused is never a competent witness for the prosecution. The accuse has a choice as to whether to testify or not: - The accused is competent, but not compellable for the defendant (Criminal Procedure Ordinance Section 54(1)). Accordingly, the accused is free not to give evidence at all at the trial . ­ I.e., they get to choose whether to take the stand in their own defenc e or not ­ This principle is fundamental in the common law system, based on the presumption of innocence and the right against self - incrimination. - The accused’s decision not to give evidence cannot be commented on by the prosecution (Criminal Procedure Ord inance, §54(1)(b); Lee Fuk Hing v. HKSAR [2005] 1 HKLRD 349) - Once the accused decides to give evidence, they must answer the questions they are asked (Criminal Procedure Ordinance, §54(1)(e)) ­ Failure to do so may be commented on by a co - defendant, the pros ecution, and the judge Criminal Procedure Ordinance 54 1) Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings: a) … b) t he failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; c) … d) … e) a person charged and being a witness in pursuance of this section may be asked any question in cross - examination notwithstanding that it would tend to criminate him as to the offence charged; Regarding the accused testifying or not: - Li Defan v HKSAR (2002) : Typically , where the defendant doesn’t testify, the judge should indicate the accused is not obliged to testify and that failure to do so should not be treated as an admission of guilt. - R v Bathurst (1968) : The judge suggested conclusions could be drawn from D’s f ailure to testify in a case involving a defence of diminished responsibility; the Queen’s bench found this unjustifiable. ­ Reverse burden context - puts more on the defendant - so you don't want to put more on them to testify - HKSAR v Wong Shuk - fong (2008): Case reversed because magistrate drew inferences from defendant’s exercise of the right to silence too broadly speaking, the rule is that no inference drawn to the fact that the defendant didn't testify - if prosecution wants to rely on exception which is narrow, make sure that it is constructed and worded correctly Exceptionally, comment may be appropriate – where the defence relies on facts at variance with the prosecution’s evidence, which, if true, are within the knowledge of the defendant (and which t he defence hasn’t otherwise supported by evidence) - "we constructed this case, the defence hasn't challenged it, presumably they could have challenged it, but they didn't do so" - if it is in this context, then maybe comment is appropriate. 3.2.3 Exception – Co - Defendants A co - defendant is not a competent witness for the prosecution; they are a competent but not compellable witness for another co - defendant ⭑ R v Rowlands : If D chooses not to testify on his own behalf, but choose to testify for his co - defendant, then he would be opened up to cross - examination as to his own guilt Need for caution with co - defendants, as, for example, they may try to run ‘cut - throat’ defences, - i.e. to implicate one another or to undermine each other’s credibility (su ch as by asking about previous convictions or accusing each other of lying) If D1 is acquitted, or pleads guilty, or D1’s and D2’s trials are severed, or the prosecution decides not to prosecute D1, then D1 becomes competent and compellable for the prosecu tion (and the defence) in D2’s trial R v. Tsui Lai - ying and Others [1987] “the defence is entitled to know everything about [the accomplice], the terms of the immunity and any matters surrounding it which could affect the credibility of his evidence” “The issue here is: were the witnesses so inherently incredible and was the background of the granting of the immunities to them so much against the public interest that the trial judge, in permitting their evidence to go before the jury, was wrong in the exer cise of his discretion?” Two things: 1. Prosecution needs to hand over all the information if there is any deal given to a potential co - defendant but instead was brought in as a witness 2. The judge using their residual authority should think about what deal di d this person get - should they be let in to the finder of fact or exclude completely?