Examination of witness(Pemeriksaan saksi)

Examination of

witness(Pemeriksaan saksi)

Examination-in-chief(Pemeriksaan utama)

Cross-examination(Pemeriksaan balas)

Re-examination(Pemeriksaan semula)

Process of adducing evidence from witnesses in a court of law

Section 137 of EA

1950

Examination of witness Section 137 of EA 1950 Examination-in-

chief, cross-examination and re-examination. (Pemeriksaan utama, pemeriksaan balas, pemeriksaan semula)

Principle and scope: This section deals with the meaning of examination - in - chief, cross – examination and re – examination. It must be read with section 138.

Examination of witness (1) The examination of a

witness by the party who calls him shall be called his examination-in-chief. (Pemeriksaan seseorang saksi oleh pihak yang memanggilnya hendaklah disebut pemeriksaan utamanya)

Examination of witness

(2) The examination of a witness by the adverse party shall be called his cross-examination. (Pemeriksaan seseorang saksi oleh pihak lawan hendaklah disebut pemeriksaan balasnya)

Examination of witness (3) Where a witness has been cross-

examined and is then examined by the party who called him, such examination shall be called his re-examination. (Jika seseorang saksi telah diperiksa balas dan kemudiannya diperiksa oleh pihak yang telah memanggilnya, maka pemeriksaan itu hendaklah disebut pemeriksaan semulanya.

Section 138 of EA

1950

Examination of witness Section 138 of EA 1950 provides for order of

examinations and direction of re-examination. (Susunan pemeriksaan dan arahan bagi pemeriksaan)

(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined. (Saksi – saksi hendaklah mula – mulanya diperiksa utama, kemudiannya pula, diperiksa balas jika dikehendaki sedemikian oleh pihak lawan, kemudiannya pula, diperiksa semula jika dikehendaki sedemikian oleh pihak yang telah memanggil mereka)

Examination of witness (2) The examination and cross-examination

must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (Pemeriksaan dan pemeriksaan balas mestilah berhubungan dengan fakta relevan, tetapi pemeriksaan balas tidak perlu dihadkan kepada fakta – fakta yang telah diberi sebagai keterangan oleh saksi itu dalam pemeriksaan utamanya)

Examination of witness (3) The re-examination shall be directed to the

explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. (Pemeriksaan semula hendaklah diarahkan kepada penghuraian perkara – perkara yang disebut di dalam pemeriksaan balas; dan jika, dengan kebenaran mahkamah, suatu perkara baru dikemukakan di dalam pemeriksaan semula, maka pihak lawan boleh selanjutnya memeriksa balas atas perkara itu)

Examination of witness (4) The court may in all cases permit a witness to be

recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. (Mahkamah boleh dalam segala hal membenarkar seseorang saksi dipanggil semula sama ada untuk pemeriksaan utama selanjutnya atau untuk pemeriksaan balas selanjutnya, dan jika mahkamah membenarkan demikian itu, maka pihak – pihak berkenaan adalah berhak memeriksa balas selanjutnya dan memeriksa semula selanjutnya, mengikut mana yang berkenaan.

Examination -in-chief/

(Pemeriksaan utama)

Examination-in-chief Examination-in-chief (also called

direct examination) is the questioning of a witness by the party who called him or her, in a trial in a court of law. Direct examination is usually performed to elicit (obtain) evidence in support of facts which will satisfy a required element of a party’s claim or defense.

Examination-in-chief As stated in subsection (2) of section

138, the examination-in-chief must relate to relevant facts. There are certain rules relating to the questions that can be put to a witness during his examination-in-chief. These are governed by sections 142, 144, 154, 155, 156, 157, and 159 of the Act.

Issues onExamination-in-chief

Leading question Hostile witness

The issue on the “leading

question”(Soalan

memimpin)

Examination-in-chief

In direct examination, one is generally prohibited from asking “leading questions”. This prevents a lawyer from feeding answers to a favorable witness.

Examination-in-chief An exception to this rule occurs if one side

has called a witness, but it is either understood, or soon becomes plain, that the witness is hostile to the questioner’s side of the controversy. The lawyer may then ask the court to declare the person he or she has called to the stand a hostile witness. If the court does so, the lawyer may thereafter ply (carry out) the witness with leading questions during direct examination.

Examination-in-chief

Leading question (Soalan memimpin): In common law systems that rely on testimony by witnesses, a leading question is a question that suggests the answer or contains the information the examiner is looking for.

Examination-in-chief This question is leading: You were at

Duffy’s bar on the night of July 15, weren’t you? It suggests that the witness was at Duffy’s bar on the night in question.

The same question in a non-leading form would be: Where were you on the night of July 15? This form of question does not suggest to the witness the answer the examiner hopes to elicit.

Examination-in-chief Leading questions may often be answerable with a

yes or no (though not all yes-no questions are leading), while non-leading questions are open-ended. Depending on the circumstances leading questions can be objectionable or proper. The propriety of leading questions generally depends on the relationship of the witness to the party conducting the examination. An examiner may generally ask leading questions of a hostile witness or on cross-examination, but not on direct examination.

The issue of hostile witness

(Saksi belot/ Berpaling

tadah)

Examination-in-chief

Hostile witness (Saksi belot): A hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony (maklumat yg memudaratkan) to the calling party during direct examination.

Examination-in-chief A party examining a hostile witness may question

the witness as if in cross-examination, thus permitting the use of leading questions. A hostile witness is sometimes known as an adverse witness (Saksi yang memudaratkan). The question whether a witness is hostile is for the judge to determine. Section 154 of EA 1950 provides that the court may in its discretion permit the person who calls the witness to put any questions to him which might be put in cross-examination by the adverse party. The purpose of questioning is to attack the credit of the witness.

Cross- examination

(Pemeriksaan balas)

Cross-examination

In law, cross-examination is the interrogation of a witness called by one’s opponent. Unlike in direct examinations, however, leading questions are typically permitted in a cross-examination, since the witness is presumed to be unsympathetic to the opposing side.

Cross-examination The main purposes of cross-

examination are to elicit (obtain) favorable facts from the witness, or to impeach the credibility of the testifying witness, to lessen the weight of unfavourable testimony, and to weaken the evidentiary value of his or her evidence.

Cross-examination

The rules relating to cross-examination are governed by section 138 and by sections 139, 140, 143, 145, 146, and 147 of the Act. Sections 148 to 152 protect a witness against improper cross-examination.

Cross-examination Per Faiza Tamby Chik JC in PP v Wong Yee Sen [1990] 1 MLJ 187

states “Cross-examination is the examination of a witness by the adverse party, that is, the party opposed to the one that calls him. What is the aim of cross-examination? Really there is one aim only. It is to assist in the administration of justice by revealing the truth to the Court. The function of cross-examination is to eliminate or reduce the danger that a false conclusion will be reached. Wigmore has declared that cross-examination is beyond doubt the greatest engine ever invented for the discovery of truth. The powers of a cross-examiner generally are: (1) to ask leading questions (s. 143 Evidence Act 1950); (2) to impeach a witness for making a previous inconsistent statement (s. 145 Evidence Act 1950); (3) to test a witness's accuracy, veracity and credibility (s. 146(a) Evidence Act 1950); (4) to shake the credit of a witness by injuring his character (s. 146(c) Evidence Act 1950)”.

Cross-examination Effect of failure to cross-examine a witness: In

Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 the Federal Court in its judgment (at page 213) said: “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… 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”.

Gnanasegaran a/l

Pararajasingam v PP

[1997] 3 MLJ 1, 11

Re-examination

(Pemeriksaan semula)

Re-examination Re examination also called

redirect examination is the trial process by which the party who offered the witness has a chance to explain or otherwise qualify any damaging or accusing testimony brought out by the opponent during cross-examination.

Re-examination Re- examination may

question only those areas brought out on cross-examination and may not stray beyond that boundary. No new matters may be introduced without the leave of the court.

Re-examination Re-examanination only arises

if there was cross-examination: Per shankar J in Yeak Chei Chai v Gan Bee Aik [1984] 1 MLJ 305 states “In this case there was no cross-examination. Therefore it follows that there should have no re-examination”.

Impeachment of

a witness (Mencabar

saksi)

Impeachment of witness The expectation is that the witness is called to

build up your case, but things can go wrong. Sometimes your witness gives evidence that will not help you. This is called an adverse witness where the witness is reluctant to help you. If a witness gives evidence against you he is called a hostile witness. However you cannot conduct cross-examination of your own witness but you can get leave from the court to impeach the witness under sections 155.

See PP v Dato Seri Anwar Ibrahim (No.3) [1999] 2 MLJ 1.

Section 155 of EA

1950

Impeachment of witness Section 155 of EA 1950 provides for

impeaching credit of witness. (Mencabar kebolehpercayaan saksi)

The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him: (Kebolehpercayaan seseorang saksi boleh dicabar dengan cara-cara berikut oleh pihak lawan atau, dengan izin mahkamah, oleh pihak yang memanggilnya)

Impeachment of witness

(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit; (dengan keterangan yang diberi oleh orang – orang yang menyatakan bahawa mengikut pengetahuan nereka mengenai saksi itu mereka percaya saksi itu tidak boleh dipercayai)

Impeachment of witness

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (dengan membuktikan bahawa saksi itu telah disogok, atau telah menerima tawaran sogokan, atau telah menerima apa-apa dorongan rasuah lain supaya memberi keterangannya)

Impeachment of witness

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; (dengan membuktikan bahawa pernyataan-pernyataan dahulu adalah tak konsisten dengan mana-mana bahagian keterangannya yang boleh disangkal).

Impeachment of witness There should be a “serious” and

“material” contradiction of statement made by the witness with the previous statement the witness had made earlier /not simply a minor or apparent contradiction.

Impeachment of witness The proper method of impeaching the credit of a

witness. In Muthusamy v PP [1948] MLJ 157 the court ruled that if there is material (When there is serious and material/not minor or apparent) contradiction in the witness’ testimony, the counsel will have to convince the court and only when the court is convinced, the court will entertain the application to impeach the witness. If the counsel succeeds to impeach the witness, that piece of evidence given by the hostile witness will be expunged from the court’s record. Once the credit of a witness is impeached, his evidence becomes worthless.

Impeachment of witness Per Adams J in Mathew Lim v Game

Warden, Pahang [1960] MLJ 89 states “Once…it is proved that the previous statement when compared with the evidence given in court contains material inconsistencies, the witness’s credit is impeached and his evidence becomes worthless because the witness himself has been shown to be unworthy of credit”.

Impeachment of witness

In PP v Scott Allen Hazlett [2005] 3 CLJ 47 where in the present case, the court was satisfied that, out of the eight sets of contradictions submitted, there were five sets of serious discrepancies or material contradictions. Once the credit of witness was successfully impeached, his entire evidence must be discarded (useless).