c. Cross examination

c. Cross examination

A witness called by the prosecution is subject to cross-examination by the legal representatives of the defendant (or defendants if there are more than one defendant). A witness called by the defence (including the defendant himself) is subject to cross-examination by the prosecution as well as the legal representatives of all other co-defendants. 

The objectives of cross-examination are two-fold:

• to test the accuracy and truthfulness of the witness, or to discredit or impeach him or her; and
• to elicit helpful information from the witness which might undermine the opposite party’s case or support the examiner’s case.

The scope of cross-examination is limited to matters which are relevant to the facts in issue, and the credibility of the witness. Unlike examination in chief, leading questions are allowed in cross-examination. In fact, they are an essential element of cross-examination, especially when the party “puts its case” to the witness.

The old authority of Brown v Dunn (1893) 6 R 67 is often mentioned on the duty of a party to put his case to the witness if that party intends to contradict evidence given by that witness. This was to allow the witness an opportunity to rebut the challenge, to qualify what he or she had said, or to explain the apparent contradiction.

As a matter of professional conduct of lawyers, a cross-examiner should not ask argumentative, bullying, or humiliating questions. 

It is open to a cross-examiner to ask questions which may incriminate a witness e.g. the witness’s involvement in the offence being tried or any other offences. However, the cross-examiner should invite the court to give a warning to the witness being questioned on his right to remain silent. It is for the witness to decide whether to answer that question. If the witness decides to answer the question, anything he said under oath may be used against him in future proceedings. If the witness decides not to answer the question, the court is entitled to draw adverse inferences against that witness from his refusal to answer that specific question.

In a trial of a rape offence or indecent assault offence, there are special rules governing questions relating to sexual experience of the complainant. Section 154 of the Crimes Ordinance (Cap. 200) prohibits questions about any sexual experience of a complainant with a person other than the defendant. The Magistrate / Judge retains the power to allow such questions if it would be unfair to the defendant to refuse to allow the question. For the purpose of this section, the definition of complainant is restricted to woman only.