Examination of Witnesses

State the procedures, features and rules governing the examination and questioning of witness

WORK OUTLINE

1. INTRODUCTION  Meaning of witness  Meaning of Examination of Witnesses 2. MAINBODY  Procedures, features and rules governing the examination of witnesses depends on the categories of Examination of Witnesses which are;  Sworn of witness  Witness to give evidence through; (i) Examination in Chief. (ii) Cross Examination and, (iii) Re-Examination (iv) Re-examination in Chief, re-Cross examination and re-examination  The Witness to Refresh Memory

CONCLUSION

BIBLIOGRAPHY

1. INTRODUCTION A witness is the person who is called to testify before the court of law the facts that are relevant to the fact in issue. Testimony of a witness is the major means which magistrate or

judges arrive at the truth or the substantive truth and so resolves the issues in any given case. The judge or magistrate’s work is to listen carefully to and record the evidence of the witness and in the end decides to which of the witnesses should believe and to which he should disbelieve or disregard altogether1. Witness plays a very important role in the administration of criminal and civil justice. The term witness here must be taken to include parties to the proceedings; judgments are normally made on the basis of evidence given by witness. Examination and Questioning of witness is done when a witness is brought before the court of law then he is expected to give some information that would assist the court to reach a decision. The process of giving evidence is through three main stages namely; examination in chief, cross examination and re-examination as per section 147(1) of the Tanzania Evidence Act 2 and in certain circumstances re-examination in chief and re-cross examination as per section 147(4). 2. MAIN BODY. The following are the procedures, features and rules governing examination and questioning of witness in the court of law Witness must take oath, it is the statutory law requirement with exceptions every witness in criminal cause or matter must be examined upon oath or affirmation in accordance with the law. Section 198(1) of the criminal procedure Act 3 provides that every witness in a criminal cause or matter shall subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with, The Oaths [Judicial Proceedings] and Statutory Declaration Act,4 1966. The oath must be administered by the magistrate himself or the 1 Morris, H.F, Evidence in east Africa 2 [CAP 6 R.E 2002] 3[ Cap 20 R.E 2002] 4 Act NO 59 of 1966

officer authorized by him in that behalf. However a child of tender age who in the opinion of the court is incapable of understanding the nature and obligation of the oath can give testimony without taking an oath or affirmation provided that the court is satisfied that child is possess sufficient intelligence to justify that the reception of his evidence and understands the duty of speaking truth as per section 127 of the law of evidence Act5. A witness must provide information with reference to the case in hand; the witness while in witness box is required to provide information or to adduce evidence which is relevant to the fact in issue of the case in hand. He or she is not allowed to adduce matters which have no connection with the matter in dispute. In the case of Madege V. R6, the High Court quashed both conviction and sentence of the accused person and ordered the district court of Iringa to try the case de-novo due to the reason that the complainant throughout her examination in chief did not allege that the accused had any sexual intercourse with her while in a charge of rape there must be evidence of penetration of the penis into the vagina though actual emission of seed is not necessary. Examination in chief, Is the examination of a witness by a party who calls him, this is sometimes called as direct examination, per section 146 (1) of the Tanzania Evidence Act 7. The objective of examination in chief is to enable the party calling the witness to exercise from his witness subject to rules of evidence and procedure, everything that the witness knows about the case so as to advance party’s case and it must relate only to relevant facts, per section 147(2) of the Tanzania Evidence Act8. For this reason the examiner should not only make himself thoroughly acquainted with the entire facts of the case but also with the particular facts which the witness has come to depose, the nature and character of the witness and the degree of his intelligence.

5[ Cap 6 R.E 2002] 6 (1972) HCD 101 7 [CAP 6 R.E 2002] 8[Cap 6 R.E 2002]

Questions in examination in chief must be confined to facts in issue or relevant facts, Inferences, opinions or beliefs unless they come within sections 47-53 of the Tanzania Evidence Act9. As the general rule in examination in chief, a witness should not be asked leading questions except with the permission of the court, per section 151(1) of the Tanzania Evidence Act 10. Leading questions are questions that suggest the answer which the person putting the question desires from the witness. The exception to the leading question shall be to the matter which are introductory such as his name and address or undisputed or have already been sufficiently proved, per section 151(2) of the Tanzania Evidence Act11. This can be seen in the case of; Bonifasi Wanani s/o Ndiyo vs. R12, in this case the Court of Appeal of East Africa condemned that- leading questions are most undesirable to the witness made at the preliminary inquiry. A party forming that question may be permitted when a witness because of language barrier, because of age, unable to convey information meaningfully in response to non leading questions13. The rule prohibiting the asking of leading questions to a party’s own witness has its own foundation on the assumption that a witness is always biased in favor of the party calling him14.the rationale is to avoid conspiracy hence to affect the administration of justice, the interest is only that a person should explain what he know and nothing else. There might happen that a person called as a witness has turned hostile, there are no statutory procedures to treat such witness but through case law a person calling the witness have to seek a leave from the court to cross-examine the hostile witness so as to destroy the evidence given against his favour as per the case of Jumanne Athman mketo V R15. Where the witness has been declared hostile his /her evidence should be ignored as stated in the case of Teddy 9 [Cap 6 R.E 2002] 10 Cap 6 R.E 2002 11 Cap 6 R.E 2002 12 [1957] E.A 453 13 Steven Goode and Olin Guy, Court Room Evidence Handbook. 14 B.T Mapunda, OLW 202 Evidence Party Three. University of Dar-es-salaam pg 27

Lucas v R16 that it’s a fatal irregularity to for the court to treat the statement of the hostile witness as evidence and rely on it to convict. Cross examination, Is the examination of a witness by a party other than a direct examined upon a matter that is within the scope of the direct examination of the witnesses17. Also cross examination is defined to mean the examination of a witness by the adverse party, per section 146 (2) of the Tanzania Evidence Act 18. Ordinarily cross examination follows immediately upon examination in chief unless the court for some reasons postpones it. The essence of cross examination is that it is the interrogation by one party of a witness called by his adversary with the object either to obtain from such witness admissions favorable to his cause or to discredit him. Cross examination is therefore directed to the credibility of the witness, the facts to which he had deposed in chief including the cross examiners version of the same, and the facts to which the witness has not disposed but which the cross examiner thinks he is able to dispose. Cross examination is therefore intended to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by means of his opponent witness, thus it is intended to impeach the accuracy, credibility and general value of the evidence given in chief. The failure to afford opportunity to exercise the right to cross examine is a fatal error, this can be seen in the case of; Isa Jakala vs. R19, in this case the accused was convicted of cattle theft. At the trial, the magistrate did not give him an opportunity to cross examine the prosecution witness. On appeal the High Court stated two things; first, the failure to extend to the accused the right to cross examine was a fundamental error and the conviction cannot stand despite the 15 (1977) LRT 63 16 (1977) LRT 33 17 Sarkar on law of evidence 18 [CAP 6 R.E 2002] 19 [1968] HCD 100

apparent strength of the prosecution case, and second, if the accused does not desire to cross examine a particular prosecution witness after he has given the opportunity to do so, a note to that effect should be embodied in the record. Thus for this reasons the High Court quashed the conviction. The essence of cross examination is governed by section 147(2) of the Tanzania Evidence Act 20 which provides that the cross examination need not be confined to the facts to which the witness testified in his examination in chief, that is cross examination is not restricted in scope as judicial review, however that liberty does not extend to the questioning of a witness on in admissible evidence such as hearsay evidence21.Furthermore leading questions are permitted in cross examination, per section 152 of the Tanzania Evidence Act 22. The basis for this rule is that normally a witness is biased in favor of the party who calls him. Also there are minimum rules that need to be observed while cross examining a witness, the rules are as follows, (i) The court may forbid any questions or enquiries which it regards as indecent or scandalous unless they relate to facts in issue or to matters to be known in order to determine whether or not the facts in issue exist, per section 160 of the Tanzania Evidence Act23. (ii) The court may forbid any question which appears to it to be intended to insult or annoy or which, though proper in it appears to the court to be needlessly offensive in form, per section 161 of the Tanzania Evidence Act24.

20 [CAP 6 R.E 2002] 21 John Kaplan and others, evidence cases and materials, 22 Ibid 23 Ibid 24 [ CAP 6 R.E 2002]

(iii) No question referred in section 158 of the Tanzania Evidence Act are permissible unless the person asking has reasonable grounds for thinking that the imputation which it conveys is well founded, section 159 of the Tanzania Evidence Act25 (iv) In the course of cross examination except as provided in the proviso to section 162, a witness may be asked any question tending to impeach his character or credit but unless such questions are also relevant to the matters in issue, the witness answers are conclusive and cannot be contradicted by other evidence. The general rule is that all witnesses are liable to be cross examined; however there are three main exceptions to this as follows; (a) A person summoned to produce a document cannot be cross examined unless and until he is called as a witness, per section 148 of the Tanzania Evidence Act26 (b) A witness who is not examined in chief because he has been called by mistake (c) A witness giving replies in answer to questions by the court can only be cross examined with the leave of the court, per section 176 of the Tanzania Evidence Act. Ordinarily leave of the court to cross examine is given if the evidence is adverse to either party. Apart from the ordinarily situations where the opposite party does the cross examination, a party calling a witness may need to cross examine his own witness, this may occur in situations where a witness turns hostile at the time when examination in chief is being conducted. A hostile witness is the one who tells lies about what he obviously knows or who deliberately changes his story and, from his demeanor and manner, is clearly biased against the party calling him. In such cases, the party calling the witness may be permitted by the court to cross examine him, per section 163 of the Tanzania Evidence Act27. A witness is not merely hostile because he gives unfavorable evidence against the party calling him, such witness cannot be said to be hostile but he is simply an unfavorable witness. An 25 Ibid 26 Ibid 27 [CAP 6 R.E 2002]

unfavorable witness is the one who, although he displays no hostile animus to the party calling him, fails to come up to proof or give evidence unfavorable to the party calling him. Re examination, Is a means of allowing the witness to explain anything he had said in cross examination through inadvertence, excitement or misunderstanding and which would damage your case if not explained, per section 146 (3) of the Tanzania Evidence Act. A witness once examined cannot be re examined as to the same matter without leave of the court but he may be re examined as to any new matter upon which he has been examined by the other party to the action. The re-examination shall be directed to the explanation of matters referred to in cross examination and if new is by permission of the court introduced in re examination, the adverse party may further cross examine and re examine respectively. The objectives of conducting re examination are as follows; (a) To give opportunity to the witness to reconcile the discrepancies if any between the statements in the examination in chief and cross examination, or, (b) To explain any statement inadvertently made in cross examination, or, (c) To remove any ambiguity in the deposition or suspicions cast on the evidence by cross examination. Leading questions cannot be asked in re examination, as per section 151 (1) of the Tanzania Evidence Act28. However the court shall allow reading as to matters which are introductory, undisputed or which have in its opinion been already sufficiently proved, per section 151 (2) of the Tanzania Evidence Act. Re-examination in chief, re-cross examination and re-examination, section 147(4) of the evidence Act29 to recall the witness for further re examination in chief, where such witness is called the right to re-cross examine and reexamine him exists 30 this may due to rise of unseen 28 [CAP 6 R.E 2002] 29 [Cap 6 R.E 2002] 30 Evidence Party Three, B.T Mapunda.pg36-37.

situations or there may have been inadvertent omission. Another possibility is where the prosecution substitutes a charge or a particular count after taking evidence of some witnesses 31 as it ruled by the high court in the case of Halid s/o Twalibu v R32 . The witness is allowed to refresh his or her memory by referring to the any writing made by him at the time of the transaction: 33 there may be considerable delay between the trial and the event in question in the trial. It is the commonplace of experience of memory fades with time and yet witnesses are frequently expected to give detailed oral evidence about event which happened month’s even years earlier. However the witness might have written statement about that event well before the trial when the memory of the event was sharper in mind. This is provided under section 168 (1) and (2) of the Evidence Act. 3. CONCLUSION Witness plays a very important role in the administration of criminal and civil justice, and the only way of getting information from a witness is by asking him questions. The scope for asking questions is limited for the party calling a witness and is wider to the opposite party in that there is a liberty of not only leading questions but also asking questions even on irrelevant matters.

BIBLIOGRAPHY STATUTES The Tanzania Evidence Act [CAP 6 R.E 2002] The Oaths [Judicial Proceedings] and Statutory Declaration Act No 59 of 1966. BOOKS

31 supra 32 (1968)HCD 423 33 I. H, DENNIS, THE LAW OF EVIDENCE, 2nd edition(2002) pg 471

John Kaplan & Others, (1991), Evidence Cases and Materials, 7th Edition, Foundation Press, New York, USA. Kenneth Graham JR, Evidence, case note Law University of Californian, Los Angeles 3 rd edition Mchome S.E, Criminal and procedure, open university of Tanzania Morris, H.F, Evidence in East Africa, Sweet & Maxwell, African University Press, Lagos, Nigeria. Sarkar Ejaz, Law Of Evidence, 4th Edition, Asoka Law House, New Delhi, India. Steven Goode & Olin Guy, (1995), Court Room Evidence Handbook, Student Edition, West Publishing Corp. Minnesota USA. OTHER SOURCES MANUAL B.D. Chipeta, (2009), A Handbook For Public Prosecutors, 3rd Edition, Mkuki na Nyota Publishers Limited, Dar Es Salaam, Tanzania