5. Examination-in-chief

In a criminal trial the prosecution goes first. In a civil trial the claimant does. The witness is sworn and speaks to what he saw, heard or did. The evidence is not supposed to be a script. Paying a witness to give a particular account is forbidden. That is a perversion of justice.

A leading question suggests the answer the questioner wants. It is not allowed in chief, for four exceptions only: preliminary matters such as name and address; matters that are not in dispute; questions the other side agrees to; and, with the leave of the judge, questions to a witness who has been declared hostile.

Three privileges let a witness stay silent. Legal professional privilege, the privilege against self-incrimination of the witness or of his spouse, and public interest immunity, including national security. If the witness waives the privilege, he is examined as any other witness. Only a competent and compellable witness is called. A witness who will not come can be compelled by subpoena, and contempt follows a disobedience.

The judge may call a witness in a criminal case if the prosecution does not, but R v Oliva says the power is used sparingly. In a civil case the judge calls a witness only if both parties agree. A party should call his witnesses before he closes his case. R v Scott is cited for a late witness where the need could not have been foreseen. The discretion is sparing. A vulnerable witness may give evidence from the box, by a recorded interview, by a live link, or from behind a screen.

An unfavourable witness is a witness who does not come up to proof. He has forgotten, or his account is weaker than the proof. He is not hostile. Counsel stops, or finishes the examination. He does not attack his own witness. Memory may still be refreshed.

A hostile witness is unwilling to tell the truth. Unfavourable evidence is not enough. The steps are practical. Show him the earlier statement. If he will not come back to it, ask the judge for leave to treat him as hostile. Leave, once given, allows leading questions, cross-examination on the inconsistent statement, and production of the statement if he denies making it. The effect is this. The statement, if produced, goes to his credit. It is not evidence of the truth of what it says.

Refreshing memory is allowed when four conditions are met. The note must have been made at a time when the events were still fresh. Contemporaneity is a question of fact: six months is too long. The witness must have made the note, or checked it, or it must have been made under his supervision. Burrough v Martin allowed a ship's officer to use a log he had supervised. Attorney-General's Reference (No 3 of 1979) allowed a police officer to use notes made while the facts were fresh. The document is produced to the court and to the other side, who may cross-examine on it. The original is produced if it exists. A copy can be used if the witness can then swear to the fact from his own refreshed memory. Maugham v Hubbard is the example, an unsigned recollection of a payment prompted by the witness's own receipt. Dyer v Best allowed a witness to fix a date from a contemporary newspaper. R v Cheng allowed a fair copy made from original notes that had been lost.

Cross-examination on the note has a trap. If counsel goes into parts of the document that were not used to refresh memory, the document can become evidence in the case, including parts that do not help him. A police officer may look at his notebook before he goes into the box. The notebook does not become evidence merely because he made it. That is the rule against self-corroboration.

Previous consistent statements are not, in general, admitted to show that the witness has always told the same story. The complaint in a sexual case, dealt with under corroboration, is admitted as consistency, not as corroboration, and not as proof of the facts complained of.