7.4 Cross-Examination, Previous Inconsistent Statements & Re-Examination

7.4 Cross-Examination, Previous Inconsistent Statements & Re-Examination

Cross-examination has two objects: to advance your own case through the opponent's witness, and to undermine the witness's evidence or credibility. Both are governed by rules that generate SBA questions because they are technical and counterintuitive.

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1. The framework

• Leading questions are permitted and are the ordinary form.
• Sequence. Where there are co-defendants, they cross-examine a prosecution witness in the order their names appear on the indictment, and a co-defendant cross-examines after the prosecution.
• Scope. Cross-examination is not confined to matters raised in chief; a witness may be cross-examined on anything relevant, including credit.
• The judge's role. The judge controls cross-examination and may impose time limits, restrict repetitive or oppressive questioning, and require questions to a vulnerable witness to be framed in accordance with ground rules set before the witness gives evidence.
• Exclusionary rules still apply. Cross-examination does not license the introduction of hearsay, bad character or privileged material through the back door.

Putting your case

An advocate who intends to invite the tribunal to disbelieve a witness, or to make a positive case inconsistent with the witness's evidence, must put that case to the witness. The purpose is fairness: the witness must have the chance to answer. Failure to put the case may result in:

• Comment by the opposing advocate and by the judge;
• An invitation to the jury to conclude that the contrary account is a late invention;
• In an extreme case, the recall of the witness so that the point can be put.

The Bar's Code of Conduct overlays professional limits: counsel must not make an allegation of fraud without material to support it, must not put a case that is not supported by instructions, and must not make a serious imputation on a person's character unless it goes to a matter in issue and there are reasonable grounds for it.

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2. Previous inconsistent statements

Section 119 is the crucial modern point. At common law an inconsistent statement went only to credit; the jury could conclude the witness was unreliable but could not act on the earlier account. Now they may. A cross-examiner who proves a helpful earlier statement has therefore not merely damaged the witness — they have put an alternative version before the jury as substantive evidence.

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3. Finality on collateral matters

The rule in Attorney-General v Hitchcock is that a witness's answers to questions on collateral matters are final: the cross-examiner must accept them and may not call evidence to contradict.

A matter is collateral if it goes only to credit and not to a fact in issue. The classic test is whether the matter is one the cross-examining party could have proved as part of their own case; if not, it is collateral. The rationale is proportionality — trials would never end if every side issue could be litigated.

The four recognised exceptions, where contradicting evidence may be called:

1. Bias or partiality. Evidence may be called to show that the witness is biased against the defendant or has an interest in the outcome — a bribe, a grudge, a relationship with a party.
2. Previous convictions. Section 6 of the Criminal Procedure Act 1865 permits proof of a witness's previous convictions where they deny them — now subject to obtaining leave under s.100 CJA 2003 where the witness is a non-defendant.
3. Reputation for untruthfulness. A witness may be called to say that they know the witness and would not believe them on oath.
4. Physical or mental disability affecting reliability. Toohey v Metropolitan Police Commissioner: medical evidence is admissible to show that a witness suffers from a condition that affects their capacity to give reliable evidence.

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4. Restrictions on cross-examination

By an unrepresented defendant. The Youth Justice and Criminal Evidence Act 1999 imposes absolute bans:

• s.34 — no cross-examination in person of the complainant in a sexual offence case, nor of any other child witness in such a case;
• s.35 — no cross-examination in person of a protected witness (a child complainant or witness) in cases involving specified sexual, violent or kidnapping offences;
• s.36 — a discretionary power to prohibit cross-examination in person of any other witness where the quality of their evidence would be diminished and it would not be contrary to the interests of justice;
• s.38 — where a prohibition applies, the court invites the defendant to appoint a legal representative; if they do not, the court may appoint a qualified legal representative to conduct the cross-examination in the interests of the defendant. That advocate is not responsible to the defendant.

Sexual behaviour. Section 41 YJCEA 1999 restricts evidence and questions about a complainant's sexual behaviour, admissible only with leave and within the narrow gateways in s.41(3) and (5).

Vulnerable witnesses. Where ground rules have been set, counsel must comply: short simple questions, no tag questions, no "putting the case" in the conventional confrontational form where the ground rules forbid it.

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5. Re-examination

Re-examination is confined to matters arising out of cross-examination. Its function is repair, not repetition: to allow the witness to explain an apparent inconsistency, to place a quoted passage in context, or to complete an answer that cross-examination truncated.

• No leading questions — the same rule as in chief.
• No new topics without the leave of the judge. A wholly fresh subject can only be raised with permission, and the other side will then be allowed to cross-examine on it.
• Where recent fabrication has been suggested in cross-examination, re-examination is the point at which a previous consistent statement may be deployed under s.120(2).

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Exam traps in this section

• A previous inconsistent statement is now evidence of the truth under s.119, not merely evidence going to credit.
• Finality applies only to collateral matters, and there are four established exceptions.
• Section 4 of the 1865 Act requires the circumstances of the statement to be put first; section 5 allows cross-examination on a document without showing it, but the passages must be put before contradiction.
• Where s.34 or s.35 applies, the prohibition is absolute — the court's response is a s.38 appointed advocate, not a warning to the defendant.
• Re-examination may not introduce new matter without leave, and may never be leading.