5. Course of Evidence.pdf

5. Course of Evidence 5.0 Overview of Trial Process 5.0.1 Pre - Trial The prosecution should disclose what they have uncovered in the course of investigation. - Rationale 1 - To allow D to answer their case - Rationale 2 - To establish an equity of arms, in order...

5. Course of Evidence 5.0 Overview of Trial Process 5.0.1 Pre - Trial The prosecution should disclose what they have uncovered in the course of investigation. - Rationale 1 - To allow D to answer their case - Rationale 2 - To establish an equity of arms, in order to allow justice to be served - Rationale 3 - To promote the speed and efficiency of the trial as a whole The prosecution must disclose both their evidence (i.e., what they will rely on), and ‘ unused material ’ (i.e., information they have collected, but don’t intend to rely on. - It is particularly important the prosecution disclose evidence in the second category that may help the defence – failure to do so is often grounds for overturning a conviction DOJ Prosecution Code of Conduct 12.1 [Key material here is that which…] may reasonably be regarded as: (a) being relevant or possibly relevant to an issue in the case; (b) raising or possibly raising a new issue whose existence is not apparent from the evidence that the prosecution proposes to use; or (c) holding out a rea l (as opposed to fanciful) prospect of providing a lead to evidence which goes to (a) or (b). 12.2 The duty to disclose is a positive and continuing duty on the prosecution that begins pre - trial and carries through to the end of the criminal process before the courts. 5.0.2 Trial Testimony Process The attendance of a witness at trial is normally secured by a ‘subpoena duces tecum’ Witnesses will usually be asked to wait outside until they are called - Rationale : witnesses w on’t be influenced by one another’s testimony and won’t rewrite their testimony - Expert witnesses are an exception - they are allowed to sit in the courtroom 1) Examination - in - Chief : Undertaken by the party putting forward that witness 2) Cross - Examination : Undertaken by the opposing party 3) Re - Examination : Undertaken by the party putting forward that witness 5.0.3 Modes of Questioning Direct Exam - Open questions , e.g., who, what, where - Sometimes parties are allowed to have leading Qs where something is agreed upon - Getting into the theatrical narrative building - When done properly, the witness is able to convey their story directly, in an engaging fashion - The lawyer must be on top of the facts, and able to ask compelling questions that draw out the witness and captur e the attention of the jury Cross - Examination - Leading Questions – The key is witness control – solicit short answers to simple questions – Not give witnesses the opportunity to wiggle around and escape questions ­ Example of legitimate leading question: It was you who struck the first blow, wasn’t it? ­ Examples of illegitimate leading questions: ­ When did you stop being a drug addict? (assumes the existence of the fact in Q ) ­ Questions which are argumentative/designed to bully/designed to humiliate the witness, or ‘prolonged, unfounded or vexatious’ - If a witness gives evidence and subsequently becom es unavailable for cross - examination - may be possible for extreme jury instructions to be given RE - A chance to explain issues raised on cross examination - Not to exceed the scope of cross - examination Pre-trialExamination-in-ChiefCross-ExaminationRe-Examination Examples of… Non - Leading Questions Leading Questions Was anyone outside? There was a man outside right? Did you drink anything before the accident? Isn’t it true you had six shots before the collision? Where were you going that afternoon? Weren’t you on your way to the dentist that afternoon? How many times have you met my client? You’ve met my client six times, correct? 5.1 Examination - in - Chief 5.1.1 Bolstering the Credibility of the Witness Examination in Chief cannot be used to bolster the credibility of the witness - R v Turne r (1975) : Q may not be asked to bolster the credibility of the witness during evidence - in - chief - HKSAR v Poon Ching Ki (2009) : “ As a matter of policy, criminal trials would become unwieldy, if evidence of a witness’ general character, became admissible sole ly because in cross - examination a witness was accused of lying ” - R v Funderbunk (1990) : An exception may arise in some cases, where the difference between collateral questions on credibility and the direct issue is “reduced to a vanishing point” – e.g. where there is nothing to rely on other than the parties’ testimony 5.1.2 Previous Consiste nt Statement Previous Consistent Statement - “a written or oral statement made by a witness on some occasion prior to testifying and which corresponds with or is substantially similar to his or her testimony in court” Previous consistent statements are in admissible because: - Potential witnesses would be tempted to prepare to boost their creditworthiness by mentioning relevant facts to as many people as possible prior to the trial - Admitting previous consistent statement would serve the purpose of bolstering the general credit of the witness which is not allowed. 5.1.2(a) Exception 1 – Rebut Claims of Recent Fabrication Prior consistent statements may be o f fered in response to a challenge that the claim was fabricated - Aim: to diminish the likelihood of fabric ation, not to demonstrate the truth of the statements in question as such - Nominal Defendant v. Clements (1961 ) (High Court of Australia): statements will be let in where made “ contemporaneously with the event or at a time sufficiently early to be inconsist ent with the suggestion that [the] account is a major invention or reconstruction ” R v Oyesiku (1971) Facts P challenged the evidence of the accused’s wife, on the basis D and his wife had fabricated a story together; Held D should have been allowed to show his wife had made a previous consistent statement at a time prior to her having had the opportunity to discuss matters with her husband Regina v Hui Chung Wing (1989) Facts - D counsel suggested to complainant, in a rape case, that she was the D’s girlfriend - P called a witness to testify that the complainant told him there was no previous relationship, and that she wanted D to stop making advances - D objected to this evidence; in response, P argued that the point was to counter D’s suggestion that the C’s evidence (that there was no relationship) was a recent fabrication Held The Court of Appeal found this was too far - they agreed with D that D had not suggested a recent fabrica tion, but rather simply challenged the complainant’s narrative, and that the prosecution had been seeking to introduce additional evidence in support of their claim, utilising this exception 5.1.2(b) Exception 2 – Sexual Offences In cases involving sexual offences, evidence of a recent complaint by the victim may be given even though it may be a self - serving statement: R v Osbourne (1905) - The evidence may be given by the prosecution – not as being evidence of facts complaint of – but: ­ as evidence to demonstrate the credibility of the witness by showing that he/she had told a consistent story from the first opportunity or, ­ where consent was in issue, as tending to negative an allegation of consent - if the original complaint is inconsistent with the test imony of f ered, the original complaint is not admissible To allow such previous consistent statement to be admissible, the prosecution must satisfy the court that: 1. There was indeed a complaint 2. The complaint was recent (1) There was indeed a complaint - R v Wong King Fang (1996) : If there is evidence the previous statement was made in the circumstances suggesting undue influence or impropriety, the previous statement won’t be admissible. - Leung Chi Keung v HKSAR (2004) : Evidence of distress can accompany evidence of the previous statement – that evidence can then go to the facts at issue, as well as credibility. - HKSAR v So Tsz Yeung (2017) : Quasi - exception to the rule the person to whom the complaint was made testify. E vidence of the statement can be provided through, e.g., Whats App message (2) The complaint was recent - R v Valentine (1996) : The Court emphasised that first reasonable opportunity does not mean the very first moment; victims often need some time HKSAR v Hung Wai Tak (2000) Facts a domestic worker from the Philippines alleged rape by her employer; the question was whether mention of this she made to a friend after four and a half days could be admitted Held This was reasonable time “It is common knowledge, and well within a sensible jury’s reasonable contemplation, that feelings of confusion mixed with shame and even possibly fear, may well influence a woman in the position in which [the complainant] found herself to keep such a traumatic event to herself for a time.” Application to non - se xual offences HKSAR v Chu Chi Ho (2017) Facts The defendant wasn’t charged with a sexual offence, rather with misconduct in public office – but that charge was based on his having procured sexual services by revealing his police identity Held The court noted with approval the Australian case Kovacs, which observed in obiter dictum that the exception also applies where the sexual offence is a particular of a charged non - sexual offence - In the case itself however, because consent wasn’t at issue, the CA considered the trial judge had been mistaken in admitting evidence of a phone call between the victim and a friend - If consent is an issue, then the previous statement exception rule can be relied upon 5.1.2(c) Exception 3 – Evidence of Previous Identification It is permissible for a witness to give evidence that he or she has previously identified the accused: R v Christie (1914) R v. Rassool (1932): “evidence of previous identification should be regarded as relevant for the purpose of s howing from the very start that the person who is giving evidence in court identifying the prisoner in the dock is not identifying the prisoner for the first time but has identified him on some previous occasion in circumstances such as to give real weight to his identification ” Res gestae. Evidence of acts and statements which form part of the res gestae is, in general, admissible on the basis that it is likely to be reliable because of it was given contemporaneous with the occurrence of the facts in issue . 5. 1 .2 Refreshing Memory Whenever there is a delay between trial and testimony, the judge should instruct the jury on the fading of memories, etc. - In some cases, refreshing memory involves ‘ present recollection revived ’ – this is when the record is used to trigger, re - establish, or stimulate a memory – after consulting the written record, the witness can testify - In other cases, refreshing memory involves ‘ past recollection recorded ’ – the witness has no memory after consulting the source, but is willing to testify as to the accuracy of that source - Sources used to refresh memory can be either contemporaneous, or later documents that represent the witness’s recollection at the time made - Contemporaneous means a record made at the time of the initial event, o r when the event was still fresh in the mind of the record maker (see R v. Richardson (D) [1971] 2 QB 484 (CA)) 5. 1 .2(a) Refreshing Memory Before Entering the Witness Box R v Richardson (1971) : Witnesses can refresh their memory by looking at their witness statements before entering court R v Wong Wai Hing v Another (1989) Ratio Witnesses aren’t allow to compare their statements Facts the appellants were convicted inter alia of drunk and disorderly behaviour and assaulting a police officer They appealed the case on the grounds that a pre - trial conference had taken place among all the prosecution witnesses Held The High Court found that the police officers having gotten together to compare their notes before the trial was improper, and quashed the conviction 5. 1 .2(b) Refreshing Memory During an Adjournment ⭑ R v Da Silva Facts - a witness, W, had told the police that Da Silva had confessed to him in prison. W told them a month or so after the alleged confession - When the trial took place a year later, W could not recall the events in question. W was allowed to withdraw from court to consult his witness statement as a means of refreshing his memory. Held The court found thi s allowable where: - the trial judge is satisfied the lack of recollection is because of the lapse in time; - the witness made a statement close to the time of the events and the contents of that statement represented their recollection; - they had not read the statement before coming into the witness box; and - they wished to have the opportunity to read the statement. - R v Leung Chi Yuen (1989) - applies the rule in Hong Kong - R v. South Ribble Stipendiary Magistrate Ex p Cochrane [1996] : the trial judge has flexibility in this regard (specifically, even though 3 did n’t apply in the case, the Queen’s Bench held that that was more of a general guideline, and that the trial judge could exercise a fair degree of discretion in such regards) 5. 1 .2(c) Refreshing Memory in the Witness Box Requires that several common law principles are complied with: - The witness must have had personal knowledge of the events recorded - It must be shown the witness is unable to fully recollect the matter, and the court must be convinced that claim is genuine - The document used to refresh memory must have been made by the witness, or upon their instruction, or they must have previously read it and accepted its accuracy - The events to which the record pertains must hav e been fresh in the mind of the witness at the time it was made - The document used to refresh memory must be made available to the court and the opposing party for inspection - The opposing party can cross - examine the witness relative to any part of the docum ent; if cross - examination takes place in regards to part of the document not used to refresh memory, the party calling the witness can put the document in evidence 5.1.3 Hostile Witness General Rule (Ewer v Ambrose (1825)) - the party calling a witness is not allowed to impeach the witness Evidence Ordinance 12 “A party producing a witness … shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness, in the opinion of the court, proves adverse, contradict him by other evidence or, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony …” - In other words: if a witness “proves adverse,” the judge may rule them hostile - The party calling the witness is then allowed to cross - examine the witness, to a certain extent, and to contradict them with other evidence, including, with leave of the judge, past statements (see Evidence Ordinance §13) - Declaring a witness hostile will mean allowing to challenge them hostile 5.1.3(a) When May a Witness be Declared Hostile? - McLellan v Bowyer (1961) : Where they are deliberately withholding material evidence - R v Hayden & Slattery (1959) : Where the witness manifests an unwillingness to tell the truth - R v Prefas (1988) : Where they testify in a manner inconsistent with a previous written or oral statement - R v Thompson (1977) : Where the witness refuses to give testimony at all 5.1.3(b) Decl arations of Hostility Wu Man - choi v R (1979) Facts - the trial judge declared the witness hostile in front of the jury, after she gave testimony inconsistent with her previous signed statements - - On cross - examination by the prosecution, she suggested the first statements were obtained by coercion Held The CA held the question should have been more thoroughly examined at a voir dire hearing in the absence of the jury and that, if her previous statement was found involuntary, the jury should never have been made aware of it and she should not have been declared hostile - Should be more thoroughly examined in the absence of a voir dire hearing - If found that the witness statement was improperly obtained, then you shouldn't have allowed the jury to hear it in the first place R v. Choi Hok - Man [1991] - suggests the trial judge has a great deal of discretion in deciding whether to use a voir dire hearing or not 5.2 Cross - Examination Appropriate Questions at Cross Hobbs v Tinling and Co ltd (1929) : “(1) … questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion … as to the credibility of the witness on the matter to which he testifies. (2) … questions are improper if the imputation which they convey relates to matters s o remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion … as to the credibility of the witness on the matter to which he testifies. (3) … questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.” Relationship to Evidence - in - Chief Browne v. Dunn (1893): - if a party intends to contradict evidence given by a witness for the other side, they should normally challenge that evidence by putting the contradictory account to the witness (to provide the witness an opportunity to rebut the challenge); - if they don’t , the judge may, as a matter of discretion, refuse to permit counsel to suggest to the jury the witness’s evidence should be rejected Kaiifull Investments Ltd v. The Commissioner of Inland Revenue [2002] 1. The general principle is that, where an attack on th e witness’s evidence will be made, notice should be given in cross - examination on the nature of the attack if such is not obvious 2. The principle is not breached if the witness knew or ought to know their version of events would be challenged 3. If the rule is transgressed, all factors have to be considered in terms of considering whether or not that is reasonable 4. The rule is not hard and fast; the key point is fairness to the witness; the principle is breached only where, all things considered, failure to cross - examine is unfair to the witness HKSAR v. Wong Wang [2008] - Regarding room for flexibility “All that is required is that counsel puts his case in such a way as to challenge the witness on those salient points of his evidence with which issue is taken. That challenge does not have to be express. It can be inferential so long as it is made clear that those particular aspects of the witness’s evidence are not accepted.” 5.2.1 The Collateral Finality Rule Rule : When cross - examination goes solely to a matter regarded as truly collateral to the main issue of the trial, most often relating to the credit of a witness, the answer the witness gives to the question should be treated as final. Rationale : to prevent the case s pinning of a tangent/sub - trial over that, only marginally related issue 5.2.1(a) Exception 1 – Prior Inconsistent Statements Evidence Ordinance 13 If a witness in any proceedings, on cross - examination as to a former statement made by him relative to the subject matter of the proceedings and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but, before such proof can be given, the circumstances of the suppose d statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. ⭑ R v Funderburk (1990) Ratio In order to be “relative to the subject matter” - means that the prior testimony in question has to be “sufficiently closely related to the subject matter of the indictment”. Facts - Criminal charges on the basis of unlawful intercourse with a 13 - year - old girl’ the girl provided a description of the occurrence in terms indicating she had lost her viriginity - D wanted to call a witness to testify to prior statements she had made, suggesting she had prior sexual experience; the judge refused leave, on the grounds that it wasn’t relevant to the question o f whether the unlawful intercourse had occurred. Held - The Court of Appeal found this had impaired the ability of the jury to hear important evidence throwing the witness’s testimony in question, however . - The key here was that CA deemed the prior testimon y in question “ sufficiently closed related to the subject matter of the indictment ” Note Note that the girl’s prior statement would be insignificant in these cases: - Her experience in the complained case was the first time she had had sex - Her prior statement use similar forms of descriptions 5.2.1(b) Exception 2 – Bias R v Mendy (19 76): “The truth of the matter is, as one would expect, that the [collateral finality] rule is not all - embracing. It has always been permissible to call evidence to co ntradict a witness’s denial of bias or partiality towards one of the parties and to show that he is prejudiced so far as the case being tried is concerned.” - Thomas v. David : romantic relationship may indicate bias. - R v. Phillips (1938) : bias means/include s ‘being on bad terms’ 5.2.1(c) Exception 3 – Improper Police Conduct R v Busby (1982) Ratio Exception 3 - Police going to improper lengths to secure conviction Facts - Police officers suggested A made self - incriminating remarks when they interviewed him. - They were cross - examined on the issue by the D’s counsel, who suggests they fabricated the remarks and were biased against the witness. - D called another witness and wanted to ask him whether the police officers had threatened him to dissuade him from giving evidence. Held The lower court didn’t allow; CA held the evidence should have been admitted. 5.2.1(d) Exception 4 – Prior Conviction s Evidence Ordinance 15 “A witness in any proceedings may be questioned as to whether he has been convicted of any indictable offence, and, on being so questioned, if he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross examining party … to prove such conviction … [by] a certificate, record, or extract …” R v. Edwards [1991] : Police officers can be cross - examined about past criminal offences/disciplinary charges proved against them, but not pending complaints, etc. 5.2.1(e) Exception 5 – Reputation For a Lack of Veracity R v Funderburk (1990) - there is an exception where “the witness has a general reputation for untruthfulness” . HKSAR v Wong Sau Ming (2003) Facts - Appellant was convicted largely based on evidence from a police constable, who testified the D had been found with drugs in his possession. - The D offered a different story – he said the police stopped a taxi he was in, and found drugs not in his possession, but rather on the front seat - He also said the police officers who stopped his taxi offered them a deal, if one rider confessed to the drugs the others would be let go, and the punishment would be minor - D sought to introduce into evidence a previous case, in whic h one of the same police officers had apparently found drugs in the possession of the same D, but in which the magistrate had acquitted the D, on the basis that the police officer’s testimony was dubious - The trial judge allowed a summary of the relevant points from the previous case to be introduced into evidence Held The CFA found such evidence could be let in, as an exception, where : (i) the verdict of acquittal in the previous case involved a finding the witness lied / that the court disbelieved them; and (ii) the circumstances of that case were of a sort, and the case was recent enough in time, that such a finding cast doubt on the witness’s credibility in the instant case Here the CFA considered the judgment against the witness in the previous case hadn’t risen to the level required by step (i) 5.2.1(f) Exception 6 – Medical Evidence Affecting Reliability Toohey v Metropolitan Commissioner (1965) Facts - P’s evidence was based on the testimony of Madden and two police officers who found him, “disheveled and hysterical” in an alley, “asking for police help” - The D’s denied the assault took place, and noted they had encountered Madd en drunk and acting strangely, and had been trying to take him home - The D’s called the police doctor as a witness, who testified Madden was uninjured, smelled of alcohol, and was hysterical - The trial resulted in a hung jury Held - The case was tried again; this time, the judge refused to let the police doctor’s evidence in - - The House of Lords held that “when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, i t must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed he had seen at a distance of 50 yards, it must surely be possible to call the evidence of an occ ulist to the effect that the witness could not possibly see anything at a greater distance than 20 yards … So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence …” 5.2.3 Rest rictions 5.2.3(a) Restrictions Regarding Past Minor Conviction Rehabilitation of Offenders Ordinance (Cap 297) § 2: cross - examination regarding spent minor conviction not allowed in cases where the individual in question was: - Sentenced to less than 3 mont hs, or fined less than $10,000; and - Not convicted on any earlier day of an offence; and - Three years have elapsed without another conviction . 5.2.3(b) Restrictions on Evidence at Trial for Rape or Indecent Assault Crimes Ordinance 154 1) If at a trial before the Court of First Instance any person is for the time being charged with a rape offence or indecent assault to which he pleads not guilty (whether or not at the trial he, or any other person, is for the time being charged with an offe nce which is not a rape offence or indecent assault), then, except with the leave of the judge, no evidence and no question in cross - examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experie nce of a complainant with a person other than that defendant. 2) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and o n such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked. 3) In subsection (1) complainant ( 申訴人 ) means a woman upon whom, in a charge for a rape offence or indecent assault to which the trial in question relates, it is alleged that rape or indecent assault was committed, attempted or proposed. 4) Nothing in this section authorizes evidence to be adduc ed or a question to be asked which cannot be adduced or asked apart from this section. Crimes Ordinance (Cap. 200) §154 - Exceptions Cheung Moon Tong v R (1981) Facts J udge refused to allow cross - examination of one complainant relative to previous sexual relations Held The CA found that this refusal was inappropriate in terms of the rights of the accused. - The record is confused, but the fundamental reason for the CA’s different position was that they considered the aim of the challenge wasn’t to advance the forbidden form of reasoning, but rather to introduce other facts that would support one D’s case - Recent sexual encounter that would explain evidence that was found - not a random sexual encounter that was trying to be introd uced to discredit them R v. Lee Wong On [1994] Facts - the applicant appealed against his conviction for rape, on the grounds he hadn’t been allowed to introduce evidence the complainant had had sexual relations w/another man a week before the alleged incident - The applicant contended his aim wasn’t to challenge credibility, but rather to make clear there was another explanation for the D’s not being a virgin Held CA agreed, quashed the conviction The CA considered cross - examination should be allowed where the proposed line of questioning was “relevant and … of sufficient importance that it might reasonably lead the jury to take a different view of the complainant’s evidence” 5.3 Special Treatment of a Witness’s Evidence The common law has devised special rules to assist the tribunal of fact in assessing the witness’s evidence. - Special directions the court has devised to warn against the tribunal about special classes of evidence given by the witness. - Six Special Categories 5.3.1 Lie Directions The lie directions were tailored to cure the problem when a defendant was found to have lied out of or inside the court. Traditional Approach – Lucas Direction (R v Lucas) “To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by (1) (2) (a) (b) (3) evidence from an independent witness. As a matter of good sense it is difficult to see why, subject to the same safeguards, lies proved to have been told in court by a defendant should not equally be capable of providing corroboration.” T he court should issue a direction to the jury that evidence of a (i) deliberate lie (ii) relevant to a ma terial issue (iii) told due to a realisation of guilt and fear of the truth (iv) that had been clearly shown to be a lie by other evidence, does not by itself prove the guilt of the accused, but rather is at best indicative of guilt HKSAR v. Huang Song Fu [2006 ] : “ a non - material lie which only goes to a peripheral issue should not be made the subject of a lies direction ” 5.3.1(a) When Necessary Yuen Kwai Choi v. HKSAR [2003] Ratio It must be a deliberate lie, relating to a material issue in the case; ther e is no innocent explanation for the lie and it is a lie which is either admitted or proved by independent evidence. Facts appellant, D2, appealed his drug trafficking conviction, on the basis the trial judge had failed to give a lie direction ‣ There were two D’s; they both asserted they did not know the contents of the bags they transferred ‣ D2 said he had been asked by a third individual to handle the transaction, and that he thought the bags had raw industrial material inside ‣ D2 suggested D1 knew the bags contained crystal meth - Constituted evidence against D1 ‣ In response, D1 challenged D2’s description of his relationship with the third individual ‣ The trial judge gave a lies direction relative to another portion of D1’s testimony, but said nothing relative to D2 Held The CA decided 2 - 1 a lies direction should have been given, but upheld the verdict The majority of the CFA similarly found the tria l judge had erred in failing to give a lies direction, but overturned the verdict “The terms of the direction must, however, ultimately depend on the circumstances of each case. In deciding what language to adopt, a trial judge should consider the use to w hich the lie in question is intended to be put or may be put, and the possible effect it may have on the accused’s case, always bearing in mind that the purpose of such a direction is to avoid possible misuse of lies by the jury.” - Chan PJ opined that a “full Lucas direction” is not always necessary because where there is no need for such a direction, it will add complexity and do more harm than good.” - A full direction is only necessary in line with the criteria set in R v Lucas. It must be a deliberate lie, relating to a material issue in the case; there is no innocent explanation for the lie and it is a lie which is either admitted or proved by independent evidence. - Nevertheless, whether the abbreviated lies direction was advisabl e was not addressed explicitly in the judgment. HKSAR v. Huang Song Fu [2006]: when a lies direction is called for, judges should give the full direction 5.3. 2 Flight Directions Evidence of flight is only admissibly where there is a clear nexus between the offences with which the defendant is charged and the flight - R v. Chan Kwok Keung [1990] : The applicants did nothing for ten months following the offence; then they stowed away on board a ship from HK to Macau; the court observed there could hav e been a variety of reasons for that stowing away “In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence i n question. In this case the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in an unusual manner in this period of nearly ten months. There was therefore no material which could have j ustified the jury inferring that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run, because they knew they might be arrested and charged with this murder. There could have been a variety of other reasons for their having stowed away nearly ten months after the murder.” - HKSAR v. Mo Shiu Shing [1999] : Where evidence of flight is admitted, it is of limited value, and a flight direction should be given - HKSAR v. So Tsz Kon [2015] : Ev idence was introduced that when police tried to stop defendant’s car, he tried to drive away. D was convicted. He successfully appealed his conviction because no flight direction was given. Specimen Directions: “It is alleged (admitted) that the defendant deliberately (ran away) (disappeared) after (the crime) (he had been bailed). You are entitled to consider whether this supports the case brought against him by the prosecution. You will need to consider: (1) w hether it has been established that the defendant did (run away) (disappear) after (the offence was committed) (he was bailed). If you are sure he did, then next consider: (2) Why did he (run away)? The mere fact that a defendant acts in this way is not in itself evidence of guilt. There are many innocent reasons why a person may do so. [Provide example, if appropriate] (The defendant has said his reasons for …) If you think his explanation is or may be true, then you should take no notice of the fact that he chose to (run away). It is only if you are sure that he did not (run away) for an ‘innocent’ reason that his actions (in running away) can be regarded as evidence which supports the prosecution’s case.” 5.3. 3 Warnings in Sexual Offences A rule us ed to exist requiring a warning relative to convicting a person accused of a sexual offence solely on the basis of a complainant’s uncorroborated evidence – This Rule has now been abolished - R v. Makanjuola [1995] : The judge may still want to give a specia l instruction in some cases, not limited to sexual offence cases, where there is an “evidential basis for suggesting that the evidence of the witness may be unreliable” ­ The judge in such cases should warn the fact - finder to exercise caution before acting on the unsupported evidence of a witness ­ Endorsed in Hong Kong by R v. Chu Ip Pui [1997] - HKSAR v. Leung Chi Keung (2004) : Distress should only be taken into account where deemed genuine and found to have a causal connection with the alleged offence ­ Some l imitation on where you can take distress into account ­ Difference from previous standard - you can take distress of witness into account when contemplating how probative you think their evidence is 5.3.4 Delay Warnings Where the events occurred years earlier or where for any reason there is concern about the delay between the alleged offence and the trial, the Specimen Directions suggest the trial judge should direct the jury as follows: “We are now concerned with events which are said to have taken pl ace a long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant. This possibility must be in your mind when you decide whether the prosecution has made you sure of the defendant’s guilt. (1) (Where appro priate) You are entitled to consider why these matters did not come to light sooner … (2) You should make allowances for the fact that with the passage of time memories fade … (3) You should also make allowances for the fact that from the defendant’s poi nt of view, the longer the time since an alleged incident, the more difficult it may be for him to address … (4) (Where appropriate, a good character direction) 5.3.5 Other Warnings Tainted witnesses : - Generally, a judge has discretion to give a warning t hat a particular witness’s evidence may be tainted by improper motive. - A judge should inform the jury an accomplice can receive a reduction in his sentence for his testimony. - E.g., accomplice got a deal - judge should given an instruction that this person's testimony was given in exchange for a lighter sentence Police witnesses : - R v. Wong Kim Wag [1994] : the judge should not suggest to the jury that police officers are in a different position from any other witnesses, e.g. by expressing sympathy wit h them, or saying they are less likely to lie - Where judges shouldn't give a particular type of instructions - Police witnesses - should give an instruction where it's like "they are honest people, and would be less likely to lie" Lifestyle evidence in dru g cases : - Can be admitted, but a special direction should be issued - (instructing the jury that the evidence does not prove anything by itself, unless they are sure the D had more money/a better lifestyle than might otherwise be expected, the D’s account o f that is untrue, and that it can only be explained by continued unlawful drug trafficking) 5.4 Identification Evidence Evidence suggesting a particular criminal had committed the crime The Principle of Individuality Criminal Liability: A particular indi vidual must be identified as responsible for a crime; if it is not clear who is responsible from a group, where one person was clearly responsible in fact, none can be held responsible (see R. v. Richardson (1785) 1 Leach 387) Identification is not an issu e in most cases, as: - In many cases, offenders and victims are well known to each other - In other cases, police officers directly witness crimes and immediately make the arrest The crime where identification is most likely to be an issue is murder - Case whe re we are missing the testimony of the victim - harder to identify the perpetrator Comparatively, at least, there is evidence that the wrong person is convicted in many cases (for some examples from the US, see the Innocence Project) 5.4.1 Modes of Ident ification 5.4.1(a) Identification Parades Identification parades are generally considered the superior method of identification - D can decide whether to participate; no adverse inference may be drawn from their refusal to participate - Failure to hold an identification parade may render other identification evidence inadmissible (see HKSAR v. Wong Kwok Leung & Anor [2008]) - The procedures for parades may be found in the Hong Kong Police Force Procedure Manual on Identification Procedures ­ The code does not have the force of law; non - compliance does not result in automatic exclusion, but it is an issue relevant to the admissibility of evidence from the identification parade . ­ It is essential that the parade is conducted fairly – the witness must not be sh own a picture of the accused before the parade, witnesses must be kept separate . HKSAR v Lo Ho - chung (2001) Ratio there might be cases where a breach of the manual procedures , but the breach must be serious enough to render the evidence inadmissible Facts • Complainant, a sex worker, alleged the appellant police officer had assaulted her during an HKID card check • The complainant identified the appellant at an ID parade 5 days after the alleged assault • It was argued on appeal the ID parade evidence was i nadmissible because: (1) the police officers were essentially compelled, because asked by their superior officer, and it was clear they would be suspected if they didn’t comply; (2) they said they didn’t need a lawyer for the same reason; (3) individual co nsent was not obtained (rather only collective consent obtained in front of colleagues); (4) the appellant was singled out because of height and age; (5) the procedure did not comply with HK Police Force Procedure Manual on Identification Procedures Held The Court of First Instance dismissed the appeal, finding that while there might be cases where a breach of the manual procedures was so serious as to render the ID evidence inadmissible, this was not such a case 5.4.1(b) Video Identification - HKSAR v. L ee Chi Fai [2003] : If relevant and authentic, admissible - HKSAR v. Bulldog [2015] : The initial DVD recording of defendants was not functioning; D challenged the admissibility of the alternative DVD relied upon, which was of unclear origin . ­ The CA of Albert a found the DVD was admissible, however, despite uncertainty as to whether it was edited - HKSAR v. Tsang Kin Chiu (KCCC 433/2016, 26 May 2016) : Follows a similar approach in HK - HKSAR v. Wong Cho Shing [2019] 4 HKC 401 : Video from multiple sources (including several cases of cell phone video footage downloaded from the internet) allowed as evidence in case against police officers accused of assaulting a protester 5.4.1(c) Dock Identification - First time in court identification is considered problematic and generally discouraged ­ If this is the first mode the identification is made it is problematic because who else are you going to point to? - R v. Hibbert [2002] : In - court identification is “deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. The instruction to the effect that such identification should be accorded ‘little weight ’ does not go far enough to displace the danger that the jury could still give it weight it does not deserve.” - In - court identification is okay however where: (1) The accused is well - known to the witness (2) The witness has previously identified the D (e.g. at an I D parade) (3) An ID parade before trial was not possible/the accused refused to take part 5.4.1( d ) Other Modes of Identification - ‘Informal identification parade ,’ i.e. group/public confrontation ­ ID parade with procedural irregularity ­ Confrontation — the suspect is confronted directly by the witness — to be used only as a last resort ­ HKSAR v. Mui Tak - ming (CFI, HCMA1093/2006, 17 April 2007, [2007] HKEC 681): Even though it seems the defendant had requested a confrontation, the procedure used was so questionable the reviewing court felt “the identification evidence was too tenuous to be relied on safely” ­ Only where D refuses to allow the ID parade - Photographic identification without identification parade is of limited value, but may be admitted (see HKSAR v. Yue Wai Fat (CA, CACC 299/1999, 7 July 2001, [2001] HKCU 619) - Voice identification evidence is accepted in Hong Kong – it is not enough alone to support a conviction beyond a reasonable doubt, however (see R v. Sung Kwok Man & another [1994] 2 HKC 161) 5.4.1( e ) Ne w Technologies - Facial mapping : R v. Stockwell (1993) 97 Cr App R 260: Can be applied where the jury is prevented from forming their own conclusion, e.g. by changes in the defendant’s appearance, to assist the jury - Fingerprints : R v. Buckley (1999) 163 JP 561: When deciding whether to admit fingerprint evidence, the court should consider: (1) the expertise and experience of the expert witness; (2) the number of matching ridge characteristics (there should be at least 8 ); (3) whe ther there are dissimilar characteristics; (4) the size of the print relied on; (5) the quality and clarity of the print ­ Enlarged photographs of the fingerprints should be provided to the jury so they can compare them themselves - DNA : can be admitted, shoul d be weighed together with other evidence 5.4.2 Identification Directions R v. Turnbull [1977] : Case concerns multiple appeals, based on visual identification evidence issues; results in ‘ Turnbull Guidelines ’: 1) When the prosecution depends wholly/substanti ally on the correctness of identifications, the judge should warn the jury of the special need for caution, and explain why (because “a mistaken witness can be a convincing one and … a number of witnesses can all be mistaken”) 2) Judge should instruct jury to examine closely the circumstances in which the identification was made: a) how long did they have; b) at what distance; c) in what light; d) was the observation impeded in any way; e) had they seen the accused before; f) how often; g) if only occasionally, did they have any special reason to remember them; h) how long had elapsed between the original observation and the subsequent ID; i) was there any material discrepancy between the description of the accused given to the police by the witness when first seen and actual appear ance 3) judge should remind jury mistakes in recognition, even of close acquaintances, are sometimes made 4) If the quality of the ID evidence is good, the jury can be left to assess it, following these warnings 5) When the ID evidence is poor (e.g. where depending on a fleeting glance, or when made in difficult conditions), the judge should withdraw the case from the jury and direct an acquittal 6) The judge should identify to the jury all the evidence they believe supports identification, and tell them if in their v iew some such evidence is weak 7) The judge should direct the jury that fabrication of an alibi may be advanced for many reasons (e.g. out of fear one’s accurate evidence may not be enough; genuine mistake) – just because the accused lied about that, does not mean they were where the identifying witness said they were – “it is only when the jury is satisfied that the sole reason for the fabrication was to deceive them … [that] fabrication [can] provide any support for identification evidence.” 8) Failure to follow the guidelines is likely to result in a conviction being quashed 5.5 Special Measures to Protect Witnesses - Vulnerable witnesses include: ­ Children (other than the defendant) giving evidence in cases involving sexual abuse, cruelty, or assault, inju ry or threat of injury, in a case involving charges that are triable on indictment or triable either summarily or on indictment ­ Mentally incapacitated persons, giving evidence in cases that are triable on indictment or triable either summarily or on indictment ­ Complainants in specified sexual offences (see Crime Ordinance §117(1)) ­ A witness whom the court is satisfied, on reasonable grounds, is apprehensive as to their own safety/the safety of any family members - R v. Lee (Robert Paul) [1996] 2 Cr App R 266 (CA): no need for a direct threat – enough that a general threat exists (based on the past actions of the defendant/etc.) 5.5.1 Screens Between Witnesses and Defendants - R v. X, Y & Z (1990) 91 Cr App R 36: the English Ct of Appeal found a screen bet ween child witness and defendants appropriate - R v. Cooper and Schaub [1994] Crim LR 531: the court found the use of a screen should only be allowed in exceptional circumstances relative to adult witnesses , otherwise it would be prejudicial , even with a cau tionary jury instruction ­ Case involved rape - the screen was appropriate in this case - R v. Foster [1995] Crim LR 333: The court found use of a screen appropriate, while also observing that the more screens were used, the less would be their prejudicial eff ect ­ The more used, the more reasonable people are because they become accustomed to them ­ The shield is put between the witness and the defendant because witness is traumati s ed HKSAR v. Shamsul Hoque [2014] Facts - The complaint concerned a sexual offence - The witness applied for and obtained an anonymity order (allowed under Crimes Ordinance §156) ­ Other type of shield - between witness and the public - The P also requested a screen between the witness and the public - This measure was challenged as prejudicial by the D Held This measure was allowable. The judge observed that: 1) A screen of this type posed an issue pertaining to the ‘principle of open justice’ 2) In regards to potential prejudice against the defendant, the judge considered that it rested on the fact that the jury might infer negatively against the defendant because the witness was behind a screen 3) The judge considered the jury was unlikely so to infer, however, and in any case that any such inference could be count ered through an appropriate direction 4) While the judge found that some prejudice was involved, he considered it reasonable in light of the “reasonable concerns and anxieties” of the witness 5) In particular, the judge indicated that, in a sexual offence case i nvolving embarrassing and sensitive context, he could see no basis to refuse a witness request to testify from behind a screen, and that no medical evidence need be provided in support of such request 6) The judge noted that a trial involves fairness to (i) t he defendant, (ii) the witnesses, and (iii) the public 7) In this context, the judge observed it was part of the court’s function to employ appropriate procedures that would encourage witnesses to come forward and testify in criminal trials Note – in practice such issues are now governed in Hong Kong by Practice Direction 9.10, “Use of Screens in Sexual Offence Cases in Magistrates’ Courts.” When testimony is given behind a screen – or via video recorded evidence or live - link – the judge should give an instruction along the following lines: “In this case the witness[es] X [Y and Z] gave evidence by means of [x]. The giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness[es] to feel more at ease when g iving evidence. It is not intended to prejudge the evidence which the witness[es] give[s]. The fact that the evidence has been so given must not in any way be considered by you as prejudicial to the defendant.” 5.5.2 Live Television Link Evidence - Provided in CPO Section 79B - Live - link has survived challenge in H.K. – R. v. Chan Bing - por [1997] 2 HKC 205: Court of Appeal found an appropriate balance was struck - Maryland v. Craig, 497 U.S. 836 (1990): live link evidence is permissible at the federal le vel in the U.S., with a showing of emotional distress. Many U.S. state constitutions require face - to - face confrontation, however. 5.5.3 Video Recorded Evidence Criminal Procedure Ordinance 79C (4) Where a video recording is tendered in evidence under this section, the court shall grant leave to admit the recording unless — (a) it appears that the child or mentally incapacitated person will not be available for cross - examination; (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or (c) the court is of the opinion, having regard to all the circumstances of the case, that in the interest s of justice the recording ought not to be admitted, and where the court grants such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded. - Applies only to children and mentally incapacitated persons - The questioner is either a police officer, social worker or government clinical psychologist - R v. Savage [1996] 4 HKC 75: Questioning of child on video not required to follow strict rules (e.g. the rule against leading questions by the party calling the witness doesn’t apply) 5.5.4 Deposition Evidence - Provided for in CPO Section 79E - Applies only to children and mentally incapacitated persons - Applies only where: ­ For good reason it is unavoidable that a trial cannot be heard without delay; or ­ Exposure to full trial would endanger the physical or mental health of the witness - Note – cross - examination in the subsequent trial won’t take place unless the court gives leave - The other party/their counsel must be given a full opportunity to cross - examine the witness during the deposition however