6. Cross-examination and re-examination

A failure to cross-examine is treated as acceptance of the evidence. R v Fenlon is the authority it cites. That is not a reason to cross-examine for its own sake. If nothing is to be challenged, the witness need not be detained.

The ethical limits are short. Do not challenge a fact you know to be true. Be fearless and fair. Go gently with a child and with a complainant in a sexual case. Do not be rude to the bench. The purposes of cross-examination are to support your own case, to discredit the witness, and to damage the other side's case.

Questions in cross-examination are of two kinds. Questions as to the issue go to the facts that decide the case. The answers may always be contradicted by other evidence. The ordinary rules of admissibility apply, including the rule against hearsay. Evidence on the issue should be called before the party closes his case, not kept back for a late ambush. Questions as to credit go to whether the witness should be believed. The answers are usually final. The questioner is stuck with the answer.

the exceptions to that finality are previous inconsistent statements, under sections 4 and 5 of the Criminal Procedure Act 1865; previous convictions, under section 6 of the same Act; bias; reputation for untruthfulness; and a physical or mental condition that affects reliability. Bias is shown by Thomas v David, where the witness denied she was the other side's mistress and rebuttal was allowed; by Dunn v Aslet, a quarrel; and by R v Mendy, where the accused's husband had spoken to witnesses waiting outside court. Toohey v Metropolitan Police Commissioner is the condition case. A boy of sixteen said police officers had assaulted him. The defence wanted a police surgeon to say the boy was hysterical and prone to imagination, and that he had been drinking. The House of Lords held that the evidence should have been allowed. Medical evidence of a condition that makes a witness unreliable is not a collateral question with a final answer.

An accused who chooses to give evidence falls under the shield in the Criminal Evidence Act. Section 1(f). He is not to be asked about previous convictions, or about bad character, unless one of the statutory doors is opened. The judge may also disallow a question whose prejudice outweighs anything it could prove.

Re-examination is confined to matters that were opened in cross-examination. It is not a second examination-in-chief, and leading questions are again out of place, for the same reasons as in chief.