Impeachment proceedings: Cross-examination

Cross-examination is a very important process in summary trial. The main object of cross-examination is to find the truth and defection of falsehood in human testimony. It is design to destroy or weaken the force of evidence a witness has already given in person or elicit something into your favour which he has not stated to discredit him by showing object of cross-examination from a litigious standpoint.

Whether a prosecution witness once had impeachment proceeding completed against him, ought to be still cross examined by the defence counsel or not ? The matter about the cross-examined has been stated in the section 173 (e) of the Criminal Procedure Code. Section 173 (e) of the CPC stated that :

(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.

So, we can see that this section makes provision for the accused to cross-examine all witnesses for the prosecution. Okay, that is the basic. Denial of opportunity to the accused to cross-examine the prosecution witness will be an improper exercise of judicial discretion and will amount to miscarriage of justice[1]. It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.[2] The problem is whether the defence counsel also can still cross-examine the prosecution witness although the impeachment proceeding has been completed against him. Actually in practice, our courts have been very liberal and does not deny or interfere in cross-examination. To the credit, of our courts, notwithstanding, there is no express provision to defer cross-examination. Our courts have permitted the cross examination of any witness to be deferred until any other witnesses to be recalled for further cross examination. If we look at the Evidence Act 1950, section 138 of the Evidence Act provided that :

Order of examinations and direction of re-examination

138. (1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-inchief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.

In the case of Paramasivam v PP[3] . The issue of before this case is whether the learned judge was right in refusing to allow a prosecution witness, to be cross examined. counsel for the accused asked that he be allowed to cross-examine the witness before the ruling was made and that in the interest of justice she should be allowed to complete her evidence. He was denied the opportunity asked for. The court then ruled that the witness was successfully impeached by the prosecution and that her evidence would not be considered. But, on the appeal stage, the appeal court held that the defence should at all times be allowed the opportunity of defending within the well-established principles of adversary trial as against the inquisitorial system, and where there is prima facie a valid complaint, however thin it might be, it must be entertained. In this case, the court had quashing the conviction and ordering a retrial.

Meanwhile, in PP v Munusamy[4], it was held that the refusal to allow a witness for the prosecutor who had been impeached to be cross-examined by the accused did not constitute a misdirection and even if it was, the Federal Court has power to dismiss the appeal, as there was no failure of justice. The respondent in this case had been convicted by the learned magistrate for an offence under section 197 of the Penal Code. One of the points submitted by the defence before the Federal Court was that paragraph (e) allows him to cross-examine every prosecution witness. Thus, when witness PW 16 was impeached by the prosecution, an application by the defence to cross-examine that witness should have been allowed. Refusal to allow such application was fatal to the proceedings. According to the Federal Court, after the rulling made by the learned magistrate to impeach the credit of PW 16, that witness was longer a witness for the prosecution in the real sense of the word for his evidence no longer constituted any part of the prosecution case. Even should there be a misdirection, since there was no failure of justice occasioned thereby the appeal should be dismissed.

In other case of Dato’ Mokhtar Hashim v PP[5], the court held that the order made by the learned trial judge in impeaching the credit of the witness Abdullah bin Ambek and denying the right to counsel for all the accused to cross-examine him was clearly wrong. Here, the Federal Court decided that when impeachment proceedings have been completed, no rulling should be made as to the credibility of the witness. This should be done only after all witness prosecution have been called and given evidence at the end of the prosecution’s or defence case. It would follow that according to this later view, when a prosecution witness had impeachment proceedings completed against him, he may still be cross-examined by the defence.

We can see that all the three main cases that have been mention by me above, it were held that all the judges agree that the defence counsel can cross-examine the prosecution witness although the impeachment proceeding had completed them. It showed us that the cross-examine process is so important to the right of the parties especially the right of an accused.

In PP v Abang Abdul Rahman[6] it was held that whenever a witness is not cross-examined, his evidence should be accepted. The other party to the proceedings accepts the evidence and the court should likewise accept it.

In Wong Swee Chin v PP[7], Raja Azlan Shah, CJ held that the failure to cross-examine a witness on material point of the case will amount to an acceptance of the witness’s testimony. Meanwhile, the importance of cross-examine the witness also held in the Indian case like in AEG Carapiet v AY Derderian[8], the court stated that it is therefore important for the accused to put his essential and material case to the prosecution witness in cross-examination. In section 256 of the Indian Criminal Procedure Code, and as also same as mentioned in the case Biswas v Stated[9] , the court held that an accused has an abosolute right to further cross-exam prosecution witness although they have been thoroughly cross-examined before the charge.

In conclusion, by referring to the new view of the main case of Dato’ Mokhtar Hashim we can understand that the cross-examine can be allowed although the impeachment proceeding against the prosecution witness or defence witness had completed.

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[1] Janab’s Keys to Criminal Procedure and Evidence, Second Edition 2010, pages 340-341.

[2] Putting and Suggesting On Cross-Examination [1984] 1 MLJ xi.

[3] [1970] 2 MLJ 107

[4] [1980] 2 MLJ 133

[5] [1983] 2 MLJ 232

[6] [1982] 1 MLJ 346

[7] [1981] 1 MLJ 212

[8] AIR 1961 Cal 359.

[9] AIR 1950 Pat 550 (551).