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- Additional independent evidence. Previously it was requirement in HK for corroboration warning. Evidence which tends to connect accused with the crime. Now there is no requirement for corroboration warning, but requirement for corroboration (example - perjury (лжесвидетельствование))
- R v Baskerville
- - examination-in-chief
- - cross-examination (undermine other's party case and build yours)
- - re-eamination
- - No Leading questions - those which tend to provide an answer to the body of the body of the question or
- - Questions should be "What, when, where, why and how"
- - could ask leading questions on introductory issues (name, address, etc.)
- - could ask leading questions in respect of issues which are not in dispute
- - if the witness is hostile, you can cross-examine, so can ask leading questions
Refreshing memory out of court
- Lau Pak Lam - witness can read its own witness statement before the hearing.
- R v Wong Wai Wing - witnesses cannot try to make their statement consistent
Refreshing memory in the court
- Witnesses can read their statements either
- - in witness box, or
- - can be allowed to read the court to read the document (the hearing will be adjourned)
Witness remain in the Box
- Evidence is likely to be contemporaneous (the evidence has tainted to be takes as shortly after accident as possible)
- Langton - it was allowed to refresh memory during 2 weeks but the evidence was still called contemporaneous
- If the evidence is contemporaneous
- - W can continue to refer to it - Wong Fuk Tang and Oths
- - BUT W cannot read the statement out
- If the document will be considered non-contemporaneous
- - Da Silva W can only refresh memory only once (but not refer to it many times as in respect of contemporaneous evidences above)
Admitting the document into evidence
- If D counsel cross-examines too broadly then W statement could be admitted into evidence:
- R v Sekhon: 3 situations when memory refreshing doc could be admitted into evidence:
- - allegation that the document is concocted
- - difficulty for jury to cross-examine and not have w statements in front of them (for example when initial evidences and further are opposing each other)
- - Aide memoire where witness’s evidence lengthy and complex
- BUT once admitted these evidence can only support credibility of the W, but not prove fact - Virgo
Previous consistent statement
- If the statement made to the police is consistent with statement during the trail, can it be admitted to the trial? answer in generally is NO, because
- - it infringes rules of hearsay
- - completely against the rules to bolster credibility of the W
Previous consistent statement -exceptions to general rules (criminal cases)
- - memory refreshing documents
- - identification evidence (evidence during ID parade will be admissible)
- - recent complaints in sexual offences
- Hung Wai Tak: witness may give evidence that she complained about the sex crime very shortly after it happened (at first reasonable opportunity which may depend n the circumstances)
- - rebut allegation of recent fabrication
- - statements made on accusation or confession, denial.
- - Res gestae statements
- Whether statement admitted as evidence of the truth or only evidence relating to credibility depends on what exception above is satisfied.
Unfavorable and hostile Witnesses
- Cannot cross-examine your own witness unless it unfavorable or hostile witness.
- Unfavorable W is the one who fails to prove which he expected to prove of contradicts it
- Hostile W - who deliberately obstructs the case
- Choi Hok Man - judge has a discretion to declare W hostile
- S 12 EO
- In case W was declared hostile than can cross-examine:
- - gain support for case
- - undermine credibility
- - put your case (if did not put the case then you (a) cannot rely on it in your closing speech (b) next witnesses will be seemed lying
Restrictions of Cross-examination
- - judge discretion
- - cross-examination in respect of complaints relating to the previous sexual experience
Cross-Examination: The Sexual History Shield
- Cross examination re sexual experience with sexual experience with D is always admissible, but cross-examination re sexual experience with others needs to be approved by leave of the court.
- BUT s 154 Crime Ordinance gives judge right to give leave in case he satisfied that not to give leave will be unfair for D
- The evidence has to be relevant
- R v Lee Wing On - V argued that her virginity was taken away by D (however she was not a virgin at that time). As soon as it was relevant court admitted cross-examination on V's previous sexual experience
Cross-Examination: The Rule of Finality
- General rule W answer in respect of collateral (side) issue is final
- - Previous inconsistent statements
- - Previous convictions
- - Evidence of bias or partiality
- - Evidence of disability affecting reliability
- - Evidence of a reputation for untruthfulness /lack of veracity.
- - Testimony disbelieved in prior proceedings
Previous inconsistent statements
- Where a witness under cross examination denies having made a prior inconsistent statement, the party undertaking the t cross examination can adduce evidence that such a statement was in fact made.
- F v Funderburk - V previously told 3rd party that she previously had sex, but was telling the court that her virginity was taken by D. It was allowed by the court to cross examine on this issue (as considered that this in not collateral issue but relating to this case)
Previous Convictions (as exception to rule of finality)
S 15 Evidence Ordinance - if person lies in respect his previous convictions, it may be proved with certificate by cross-examining of another party
Bias (as exception to rule of finality)
- Thomas v David - witness was mistress of the plaintiff. So she could be cross-examined on it
- R v Mendy wife called husband to prove that he was liable, but he asked another man to take notes in the trial. It was allowed to cross-examine on it as it was bias.
Evidence of a disability affecting reliability (as exception to rule of finality)
Toohey v MPC - was charge with assault. Defense : drunk. Defense called doctor who examined the doctor, mental condition was due to alcohol.
Testimony disbelieved in previous proceedings (as exception to rule of finality)
HKSAR v Wong Sau Ming - evidence was admitted because judge was satisfied that W was lied in the previous case
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