1st Question: At last, the ALRC has corrected the interpretative error created by the High Court in Adam’s case but for the better or for the worst. Discuss.
Introduction
Generally, the rule is that parties in criminal cases cannot cross-examine their own witnesses[1] except in instances where the testimony of the witness presented by the party in court is not favourable to that party. However, the exception is limited by the rule that the evidence brought out during the cross-examination should comply with section 38(1) of the (Uniform) Evidence Act 1995[2]. This implies that the cross-examination of one’s own witness is subject to the discretion of the court in applying legal provisions pertinent to the situation. This further means that cross-examining one’s witness constitutes a discretionary remedy.[3] However, in application, the decision of the High Court in the Adam case seem to have made complex the rules on the cross-examination of one’s own witnesses by the literal manner of interpreting section 102 as well as creation of a different approach to credibility in evidence law.[4] In this case, section 102 covering the credibility rule was interpreted liberally and applied by the High Court by holding that the inconsistent statement given by the prosecution’s witness was admissible in questioning the credibility of witness and through the operation of section 60 could also be used in proving the truth of assertions made by the witness in the statement. This implies that section 102 does not apply to situations where the evidence holds relevance in some other way even if it also assumes relevance to the credibility of the witness. Thus, the ALRC has clarified the application of the rules on unfavourable witnesses, particularly on prior inconsistent statements.
Credibility Rule & Exceptions
In the Adams case, the High Court provided as exception to the credibility rule the relevance of the testimonial evidence in other ways so that section 102 does not apply and the inconsistent statement is admissible to impugn the credibility of the witness as well as prove the truth of the evidence mentioned in the statement. The ALRC recommended a clarificatory way of interpreting section 102 through the concurrent consideration of section 103 of the (Uniform) Evidence Act 1995. The interpretation of these two provisions together means that the credibility rule does not apply for purposes of cross-examination of a witness in instances where evidence contained in the inconsistent statement holds substantial probative value. Although substantial probative value was not defined in the (Uniform) Evidence Act 1995, it can be adduced from section 103(2) that these factors should be considered in determining whether evidence holds substantial probative value, which are “a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred”[5]. Subsequently, the ALRC also recommended the operation of section 108 relative to section 102. This provision provides that the credibility rule have no application in evidence cited during the re-examination of the witness.
Evaluation of the ALRC Provisional Changes on the Credibility Rule
According to the ALRC, previous inconsistent statements may be admissible in evidence to question both the credibility of the witness and the truth of the evidence adduced in cases where the evidence holds substantial probative value. This clarifies the interpretation in the Adams case of allowing admissibility as long as the evidence is relevant for other purposes apart from questioning the credibility of the witness. However, while the ALRC recommendation sought to clarify and specify the circumstances comprising exceptions to the credibility rule, the application of substantial probative value has also been subject to criticisms for its weaknesses. The most salient weakness is the lack of definition for substantial probative value resulting to vague applicability. Substantial probative value effectively clarifies the interpretation in the Adams case if the legal concept is accorded a working definition. Apart from this, the ALRC also considered the application of section 108 of the (Uniform) Evidence Act 1995 to the determination of the admissibility of evidence during the cross-examination of witnesses. This means that the interpretation of law reverts to the decision in Graham v The Queen[6] where granting leave to admit evidence depends on the discretion of the court based on the manner that evidence is linked to the legal basis for its admission such as when the admission of the evidence would affect the credibility of the witness. These provisions, taken together were intended to clarify the application of the credibility rule and its exceptions.
Conclusion
While the ALRC have provided a manner of reconciling the seemingly contradictory provisions of the (Uniform) Evidence Act 1995 relating to the interpretation of the credibility rule and its exceptions relating to the cross-examination of a party’s own witness due to a prior inconsistent statement, in application the ALRC rules barely touched on praxis issues such as the working definition of the legal concepts. Thus, the ALRC response to the High Court interpretation of section 102 relative to other pertinent provisions has not satisfactorily concluded the issue.
2nd Question: The Judge in the adversarial trial is best placed to ensure trials are fair. She can ensure a jury is well informed and make sure the parties conduct themselves within the rules. Discuss.
Introduction
The adversarial legal system heavily relies on the skills of the prosecution and defence in advocating their respective positions before a neutral party, the judge. The judge, as a neutral party, seeks to direct the case towards the ascertainment of truth to support the resolution of the case. However, the ascertainment of truth in the adversarial system is not at all easy. This is because a core feature of the system is the right of the accused to be silent and not provide any testimonial evidence during the court proceedings[7]. For the benefit of the jury, the arguments of the party need to be summed-up and digested by the judge prior to the deliberation of the jury on the merits of the evidence presented. Thus, judges in an adversarial system hold the position of being responsible for ensuring fair play because he/she advocates the neutral objective of ascertaining truth in summing-up arguments presented in court.
Judicial Role in Achieving Fair Trial
Summation of the trial proceedings includes direction over the elements of the offence, the applicable statutory provisions, and the collation of evidence and arguments relating to the elements of the offence including the weaknesses of the arguments presented. The purpose of the summation is to provide judicial warnings to the jury to assist them in the ascertainment of truth and the determination of the cases.[8] However, there is need to distinguish the nature of the acceptability of comments and comments to be integrated into the jury deliberation. On one hand, comments made to the jury relating to common experiences, as reminders in case the members of the jury have overlooked these considerations constitute communications that the jury is not obligated to accept[9] because these are assumed to be within the scope of their knowledge and experience. On the other hand, warnings given by court are based on the legal experiences of the judge constitutes information that the jury is obliged to accept because this body of information is assumed to be outside of their knowledge and experience.[10] Failure on the part of the judge to warn the jury may lead to unfair trial[11].
However, the performance of this duty by the judge is not at all simple. On one hand, the judicial warning helps the jury appreciate the body of evidence presented, the laws applicable to the case, and the evidence that need to be presented in order to prove or disprove the existence of the elements of the commission of the offence. Judicial warnings and directions made by the judge to the jury supports fair trial by ensuring that the jury have complete and accurate information about the factual or evidentiary[12], legal and procedural aspects[13] of the case. In this way, the jury is able to give judgement based on the consideration of all material evidence presented in the case together with a sufficient understanding of statutory provisions. In these instances, the judge ensures a fair trial by providing the jury with the necessary informational and legal tools they need in coming-up with a fair decision.
On the other hand, the summation may include comments that would likely influence the opinion of the members of the jury despite the fact that the jury is not obligated to accept these comments. This is because the judge is looked up as the legal expert so that his/her comments are given weight regardless of the communication of the warning that the jury is not obligated to accept these warnings. Apart from this, the judge has the discretion to determine the aspects to be included in the summation, the areas to be given stress, and the warnings to be given. The exercise of this discretion could variate the nature and extent of influence that the summation could have over the jury. In effect, the judge has a certain degree of influence over the determination of the case by the jury, which if abused could lead to unfair trial.
Conclusion
The judge is placed in the best position to ensure a fair trial because in an adversarial judicial system, where the prosecution and defence are pitted against in other seeking to utilise all legal means available to advocate their positions, there need to be a neutral party assuming the task of advocating for the discovery of truth amidst the opposing evidence presented by the parties. The neutral party is the judge, ensuring fairness through the clarification and simplification of the issues in the case through the issuance of judicial notices or comments, warnings and directions to the jury to guarantee that the jury has full knowledge of all relevant aspects of the case before deciding on the evidentiary merits of the case. However, the judge should also exercise due diligence in the exercise of discretion in giving the summation in order to prevent unfair trial.
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