CRIMINAL LITIGATION, EVIDENCE AND SENTENCING

Topic 13 – The rules relating to the examination of witnesses

Question 1

You are prosecuting Robert who faces an indictment containing a number offences of
serious sexual assaults upon his 8-year-old son. Defence counsel has suggested to the child
in cross examination that he has been coached by his mother to give false evidence against
his father due to the acrimonious breakup of the relationship between them. The
relationship began to break down about 18 months prior to the trial. The child had made
the complaint to his mother on two occasions prior to the breakdown of the relationship
and on several occasions after, in terms that were consistent with his evidence during the
trial. The complaint was initially made to the police about a year before the trial. So far, no
evidence of the previous complaints has been adduced.

What should you do at this stage in relation to the evidence of the previous consistent
statements?

A. Make an application to adduce the evidence of the consistent statements made prior
to the breakdown of the relationship in rebuttal.
B. Make an application to adduce the most recent consistent statements in rebuttal.
C. Make an application to adduce all of the previous consistent statements in rebuttal.
D. Nothing. Evidence of the previous consistent statements can only be adduced in
rebuttal if the allegation is of very recent fabrication.

Answer Q1

The correct answer is A.

An application should be made to adduce the evidence in rebuttal under s.120(2) CJA 2003
as the defence have made allegations of recent fabrication. It does not have to be ‘very
recent’ – see BCP F7.67 - 70. Therefore, D is wrong.

The complaints that are relevant here in order to rebut the allegation are the complaints
prior to the breakdown of the relationship to show that they were made at a time when the
relationship was still good and therefore unlikely to have been made at the instigation of
the mother (See MH [2012] EWCA Crim 2725). Therefore, B and C are wrong.

Question 2

You are prosecuting Amjid, Leon and Jason who are standing trial for a joint offence of
dwelling house burglary. The prosecution case is that they drove together to an unoccupied
address in a van registered to Amjid. They gained entry to the house by removing a
windowpane and stole from inside a flat packed kitchen and several electrical appliances
that had been delivered that day but were yet to be fitted.

The burglary was witnessed by Fateema who lives in a house opposite. Upon realising that a
burglary was taking place she made a 999 call. At that point the van was driving away with
the stolen goods already loaded. The police arrived a short time later and took a statement
from Fateema, in which she provided the registration number of vehicle.

When you call Fateema to give evidence at the trial and ask her to provide the registration
number, she says that she cannot recall it. This is despite having had the opportunity of
refreshing her memory with her statement immediately prior to coming into court.

What is the most appropriate course of action for you to take?

A. Ask Fateema to confirm that she made a statement at the time recording her
account and that her recollection would have been significantly better then than it is
now, before asking the judge for leave for her to withdraw from the courtroom to
re-read her statement to refresh her memory.
B. Ask Fateema to confirm that she made a statement at the time recording her
account and that she has had the opportunity of reading it before coming into court,
before asking the judge for leave to treat her as a hostile witness and cross examine
her about the details of the registration number.
C. Ask Fateema to confirm that she made a statement at the time recording her
account and that her recollection would have been significantly better then than it is
 now, before asking the judge for leave for her to be given a copy of her statement to
refresh her memory.
D. Ask the judge for leave for Fateema to be given a copy of her statement to refresh
her memory and then ask her to confirm that the statement records her account at
the time when her recollection would have been significantly better than it is now.

Answer Q2

The best answer is C.

A is not the best answer because there does not appear to be any need for Fateema to
withdraw from the courtroom in order to read her statement, although this might be
appropriate in some circumstances. BCP F6.29. There is no basis upon which to suggest that
Fateema is not desirous of telling the truth, which would be necessary in order to apply to
treat her as hostile. Therefore, B would be inappropriate. BCP F6.52. The requirements
under s139 CJA 2003 should be met before an application for leave for a witness to refresh
their memory is made. Therefore, D is incorrect. BCP F6.16.

Question 3

You represent Piotr who is charged with the unlawful wounding of his wife Tanya. It is
alleged that he cut her arm with a knife during an argument at the matrimonial home on
Christmas day last year. Two years ago Tanya had made a complaint to her sister that Piotr
had just cut her arm with a knife during an argument at their home. The prosecution
advocate has told you that they intend to make an application to adduce the evidence of
the complaint to the sister as a previous complaint under s.120 Criminal Justice Act 2003.

What would be the best way to respond to the application?

A. Not oppose the application as the conditions in s.120 appear to have been met.
B. Oppose the application on the basis that the previous offence complained of is not
one to which the proceedings relate.
C. Oppose the application on the basis that an application to adduce Tanya’s evidence
of the earlier incident as evidence of bad character would be more appropriate.
D. Oppose the application on the basis that it is not a recent complaint.
The best answer is B.

The conditions in s.120 have not been met as the offence which is being complained of in
the previous statement to the sister is not the offence with which the defendant is charged.
BCP F6.33. Therefore, A is incorrect. To be admissible under s.120 a complaint does not
need to be recent – although this is a complaint made straight after the incident in any
event. Therefore, D is incorrect. C is correct but it is not the best answer as it does not
explain why the application under s.120 is opposed.

Question 4

Demitri is charged with murder. The prosecution case is that following an argument with the
deceased he attacked him with a crowbar and killed him. At the start of his police interview
Demitri said “I killed him. If I had not done so, he would certainly have killed me there and
then.’ He went on to answer no comment to all questions asked. During his trial for murder
Demitri chose not to give evidence in his own defence and he did not call any witnesses.

How should the judge deal with the statement made in interview during the summing up to
the jury?

A. The judge should direct the jury to disregard his explanation for the killing as a self-
serving statement.
B. The judge should direct the jury that the statement is only evidence to show the
reaction of the defendant on accusation and not evidence of the truth of its content.
C. The judge should direct the jury that the first part of the statement is evidence of the
truth of its content but that the second part of the statement is only evidence to
show the reaction of the defendant on accusation and not the truth of its content.
D. The judge must set out the defence as set out in the statement and direct the jury
that both parts of the statement are evidence of the truth of their contents.

Answer Q4
The correct answer is D

Statements made by an accused to the police are admissible even where they contain
exculpatory or self-serving statements. Therefore, A is incorrect. If the statement is entirely
exculpatory it is only admissible as evidence of reaction and not the truth of its content. If,
as in this case, it is a mixed statement containing both exculpatory and inculpatory parts,
the whole statement is admissible for the truth of its contents. Therefore, B and C are
incorrect. As the defendant has neither given evidence nor called any the judge must set out
his defence as revealed in the mixed statement. BCP F6.40.

Question 5

Hong, Yee and Ji Yeh are being tried for money laundering offences under the Proceeds of
Crime Act 2002. Hong is named first on the indictment, Yee is second and Ji Yeh is third. All
parties are calling accountants as expert witnesses.

In what order should Ji Yeh’s accountant be cross examined?

A. She should be cross examined by counsel for Hong, then by counsel for Yee and
then by counsel for the prosecution.

B. She should be cross examined by the prosecution only.

C. She should be cross examined by the prosecution, then by counsel for Hong and
then by counsel for Yee.

D. She should be cross examined by counsel for Yee, then by counsel for Hong and then
by counsel for the prosecution.

Answer Q5

The correct answer is A.

Every other party has a right to cross examine a party’s witness. Therefore, B is incorrect.
Witnesses should be cross examined by the defence in indictment order. Therefore, D is
incorrect.

The prosecution will cross examine a defence witness after cross examination by the co-
accused. Therefore, C is incorrect.

BCP F7.2

Question 6

Ben in standing trial for the rape of his ex-girlfriend Lauren. Before the trial began he sacked
his counsel and is now intending to represent himself. Lauren will be attending court to give
evidence. She has been granted special measures allowing for the use of the live link.

What directions should the judge make in relation to the cross examination of Lauren?

A. No further directions are necessary as special measures are already in place.

B. A direction prohibiting Ben from cross examining Lauren.

C. A direction prohibiting Ben from cross examining Lauren and a direction appointing
an advocate to cross examine Lauren on Ben’s behalf.

D. A direction prohibiting Ben from cross examining Lauren and a direction appointing
an advocate to represent Ben during the trial.

Answer Q6

The best answer is C.

S34 YJCEA prohibits the cross examination by an accused in person of a complainant of a

sexual offence. Therefore, A is incorrect.

B is correct but it is not a complete answer. The court might encourage an accused to
appoint a legal representative to conduct the trial but if the accused does not wish to be
represented the court can only appoint a legal representative for the purposes of cross
examining the witness and not for the trial as a whole. Therefore, D is incorrect.
BCP F7.3

Question 7

You are prosecuting Taya for an offence of wounding with intent. Taya’s husband Abdallah is
due to be called as a witness for the defence and therefore he has not been present in court
whilst the evidence is being given. Whilst the officer in the case was giving evidence it was
noticed by a member of court staff that a man in the public gallery was taking notes. The
same member of court staff later heard the man discussing the case with Abdallah,
describing the officer’s evidence to him. When Abdallah gives evidence, he claims that he
inflicted the injuries to the complainant and not Taya. You cross examine Abdallah about the
conversation with the man in the public gallery. He denies that any such conversation took
place.

What should you do?

A. Further question Abdallah by asking him to explain why the member of court staff
says that the conversation did take place.

B. Apply to adduce the evidence of the member of court staff under s100(1)(b) CJA
2003.

C. Nothing as answers to questions on collateral matters are final.

D. Apply to call the member of court staff in rebuttal.

Answer Q7

The best answer is D

Questions should not be asked in cross examination which state what someone else has said
or is expected to say. Therefore, A is incorrect. BCP F7.16
Evidence is admissible to contradict a witness’ denial of bias or partiality and to show that
the witness is prejudicial concerning the case being tried. In the case of Mendy (1976), on
identical facts, it was held that such evidence could be called in rebuttal as it showed that
the husband was prepared to lend himself to a scheme designed to defeat the purpose of
keeping a prospective witness out of court and enabled him to convincingly explain how he
and not his wife had inflicted the injuries. Therefore, the rule in relation to the finality of
answers on collateral matters did not apply. Therefore, C is incorrect. BCP F7.60.

It should be argued initially that the evidence falls outside the definition of bad character
under s98 CJA 2003 as evidence of misconduct in connection with the prosecution of the
offence. Only if that fails should an application under the bad character provisions be
considered. Therefore, B is not the best answer BCP F7.57.

Question 8

Leo, aged 13, appeared in the youth court last week and entered a not guilty plea to an
offence of robbery. It is alleged that he threatened Jack, aged 12, grabbed him and made
him hand over his mobile telephone. Your instructing solicitor has informed you that Leo has
severe learning difficulties and that he suffers with ADHD. Following a conference with Leo it
is clear to you that Leo struggles with concentration and communication, although he could
tell you in basic terms the nature of his defence. Your instructing solicitor has asked for your
advice in relation to whether an application for an intermediary should be made in advance
of the trial.

What is the best advice to give?

A. An intermediary would assist Leo in providing his best evidence and therefore an
application should be made for the assistance of an intermediary at trial.
B. Special measures are not available for defendants.
C. Leo should be assessed by an intermediary with a view to an application being made
for the assistance of an intermediary at trial.
D. As Leo can communicate his defence an intermediary is not necessary.

Answer Q8

The best answer is C.

Although the special measures provisions of the YJCEA 1999 do not generally apply to
defendants, it is an established use of the inherent powers of the court to ensure fairness
that in appropriate cases intermediaries can be appointed for defendants. Therefore, B is
not correct. BCP D14.28

The fact that a defendant can communicate their defence does not mean that an
intermediary would not be appropriate. Therefore, D is incorrect. BCP D14.28

Although it does appear that an intermediary would assist Leo in providing his best evidence
it is preferable to obtain a report from an intermediary before making the application as the
intermediary may conclude otherwise and recommend instead ground rules for the conduct
of the trial. Therefore, A is not the best answer. BCP D14.28.

Question 9

You prosecute Jabbar who is charged with the sexual assault of Amira, aged 18. After
reporting the matter to the police Amira provided an ABE video interview. Jabbar has
pleaded not guilty and therefore Amira will be called to give evidence at trial. Amira is very
nervous about giving evidence but feels that she will not get closure unless she comes into
court to give some of her evidence. She is very concerned that she will ‘go to pieces’ if she
can see the defendant.

Which special measures should you request for Amira?

A. The ABE video recording to constitute her evidence in chief and the use of screens
for cross examination.
B. Screens to be used throughout her evidence.
C. The ABE video recording to constitute her evidence in chief and the use of the live
link for cross examination.
D. The ABE video recording to constitute her evidence in chief and for cross
examination to take place in the absence of the defendant.

Answer Q9

The correct answer is A.

It is not possible to order that the cross examination takes place in the absence of the
defendant. Therefore, D is incorrect.

Amira wishes to come into court. She will not be in court if the live link is used. Therefore, C
is not the best answer.

Amira does not say that she wishes to give all of her evidence live in court. She has been
video interviewed and therefore this can be used as her evidence in chief. Screens will
ensure that she cannot see the defendant whilst she is cross examined.

BCP D14.5

Question 10

You prosecute Rhydian who is charged with the historic rape of his stepdaughter Mari, now
aged 35. Mari had first complained about the rape 12 years ago to her friend Emily, now
aged 34. You intend to call Emily as a witness in relation to this evidence of complaint under
s120 CJA 2003. Emily has an anxiety disorder which leads to her suffering with panic attacks
when she is placed under stress. She is very distressed about giving evidence and does not
think that she can go through with it. She asks you if she is eligible for special measures.

What should you advise her?

A. Yes, she is automatically eligible because this is a sexual offence.

B. Yes, she will be eligible if the quality of her evidence would be diminished by her
condition.
C. Yes, she is eligible as she is in distress about testifying.
D. Yes, she is eligible as she has a mental disorder.

Answer Q10

The correct answer is B.

It is only the complainant of sexual offences who automatically qualifies, not all witnesses.
Therefore, A is incorrect. Emily might be eligible due to either her mental disorder or her
distress at testifying but the court would have to first conclude that the quality of her
evidence would be diminished by her condition. BCP D14.7