CROSS-EXAMINATION AS A HEART OF DEFENSE CASE BY MWAKISIKI MWAKISIKI EDWARDS

Examnation of witness  it is always the form of questions and answers. The deposition is usually taken down in the form of a narrative out of the answers. The examination of witnesses generally takes three stages . Firstly, The examination-in-chief provided under section 156(1) , which is done by the party who calls the , witness. Secondly, Cross-examination section as provided under section 146(2) , which involves the examination of a witness by the adverse party, and finally Re-examination as provided under section 146(3) , which involves the examination of a witness subsequent to the cross-examination by a party calling him. Section 152 of Evidence Act  permits leading questions in cross-examination of a witness.

The right of cross-examination is a statutory right which vests in a party to the proceedings. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in examination-in-chief; to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. 

The object of cross-examination is two fold to weaken, qualify, or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s weakness. 

Cross-examination is directed to, The credibility of the witness, the facts to which he had deposed in-chief, including the examiner’s version thereof: and the facts which the witness had not deposed but to which the cross-examiner thinks he is able to depose. 

Cross examination is the heart of the defence case, as cross examination helps the defendant to do the followings:-

Firstly, the cross examination helps the defendant to impeach the accuracy, credibility and general value of the evidence given in examination-in-chief.

According to section 154, a witness may be cross-examined as to any statement as to relevant facts made by him on a former occasion in writing or reduced to writing without showing the writing to him or proving the same. But if it is intended to contradict him by the writing his attention must be called to the writing

In the case of Magoti s/o Matofali (1953) 20 E.A.C.A. 232, the committing magistrate’s court clerk was called to prove a deposition which was used to impeach the credibility of a prosecution witness. It was held that where the defence wishes to impeach a prosecution witness’s credibility by the use of his deposition before the committing magistrate the provisions of section 145 of India Evidence Act [section 154 of Tanzania Evidence Act] must be observed.

Secondly, its through cross examination that the defendant is able to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party.

Thirdly, it’s trough cross-examination that the defendant will weaken, qualify, or destroy the case of the opponent. 

The aim of destructive cross-examination is to weaken, and if possible to destroy, harmful evidence given by a witness (including one's own witness if the court allows this) in order to defeat the opponent's case. To achieve the rejection of evidence led by the opponent, a cross-examiner usually has to rely on the support of evidence which he calls himself to contradict and overcome the evidence which he is challenging.

Fourthly, through cross examination a defendant is able to establish the party’s own case by means of his opponent’s weakness. The aim of constructive cross-examination is to build or strengthen one's case with positive and favourable evidence obtained from another party's witness which supports one's evidence-in-chief. Witnesses called by another party are not necessarily hostile, biased or unwilling to co-operate. If they are honest, they may be expected to concede favourable facts where this is justified. Even if they are partisan or untruthful, the context may oblige them to admit some indisputable facts. The techniques of constructive cross-examination are the subject of the next chapter, namely, emphasis, eliciting new meanings, eliciting new facts and putting the alternative case.

Fifthly, Cross examination helps the defendant to check the credibility of the witness by means of Impeaching Credit of Witness. Section 164 enables parties to give independent evidence as to the character of a witness in order to indicate that he is unworthy of belief by the court. This section indicates four ways in which the credit of a witness may be impeached: Evidence of persons that the witness is unworthy of credit as per section 164(1)(a) , Proof that the witness has been bribed, has accepted the offer of a bribe or has received any other corrupt inducement as per section 164(1) (b) , and Former statements inconsistent with the present Evidence as per section 164(1) (c) .

Generally, It’s clear that cross examination is the heart of the defence case, therefore a good cross examination will help the defendant or accused to destroy the case or claims directed to him while a poor cross examination will drag a defendant or an accused to certain liabilities as imposed by a court

COMPETENCE AND COMPELLABILITY OF SPOUSES

In law of evidence, competence governs the ability of a witness to give evidence at trial. It has to be determined that a witness standing in a court of law is qualified to be ‘heard’ by the court, on the other hand Compellability is a state of a competent witness to be forced to give evidence in court even when he is not willing to do so.

Historically, at common law, many groups of witnesses were regarded incompetent to give evidence. They could not testify even if they could provide potentially important information. Some of these were spouses who could not give evidence for or against each other.

Section 3 of Evidence Act  defines a husband or a wife to mean the spouse of a marriage which is valid according to the written law or customary laws of the United Republic.

According to section 130(1) of Evidence Act , spouses are competent but not compellable witnesses for the prosecution. However, there are exceptions whereby a spouse may be a competent and compellable witness against the other spouse for the prosecution, these are under section 130(2) of the Evidence Act  as the wife or husband whether of a monogamous marriage or not shall be a competent and compellable witness for the prosecution where:-

Firstly, The person is charged with an offence under Chapter XV of the Penal Code Cap. 16(offences against morality) and under the Law of Marriage Act, Cap. 29, secondly The person charged with an act or omission affecting the person or property of husband or any wives of a polygamous marriage of that person or children of either or any of them.

Section 130(3) of evidence Act  requires the court to inform a witness that he or she is not compelled to give evidence against her or his spouse for the prosecution. However, if the provisions of section 130(2) apply, the court will do away with this requirement. Before the court can take evidence of a spouse, it must record that it had complied with the provisions of this section.

In the case of Akechi v. R , the appellant was charged with arson. His wife was called to give evidence for the prosecution. Before she gave evidence trial magistrate asked the appellant whether he has any objection to his wife giving evidence against him. Appellant had none, the wife gave her testimony. It was held: This was not in accordance with the provisions of section 130(3) Evidence Act, that subsection requires the court to address not the appellant but his wife and to inform her that she was under no obligation to testify against her husband but that she may give evidence against him if she choose to do so.

Kisanga, J., said: It is not enough for the court of law to ask the spouse if he/she has objection to the other spouse to testify. The court shall ensure that the spouse is made aware to the provision of subsection (3) of section 130 and that has to be recorded. In Kotia Mwamahusi v. R.  the appellant had two wives and decided to get rid of one of them (he murdered her). At the trial one of the co-wives was compelled to testify. On appeal the conviction was quashed though there were other ample evidence to convict the accused.

Section 130(4)  provides that a spouse is a competent witness for the defence. However, before a spouse can testify for the defence, the husband whether of a polygamous marriage or not, or the wife shall make an application before the court to have his/her spouse testify for him/her. In the case of Mtoakodi v. R. , the appellant had more than one wives. He applied before the trial court for one of the wives to be called as a witness. The trial court said that either he call all of them or none. On appeal: It was wrong for the court to deny him the evidence which is contrary to the provision of section 130(4).

According to section 130 (5)  when a spouse is called to give evidence for the defence and refuses to do so, the court as well as the prosecution on its own discretion may comment on the failure to give evidence for the defence. The protection that is given to spouses in criminal proceedings is not given in civil proceedings, thus according to section 131  a husband or wife is a competent and compellable witness to testify against his or her wife or husband.

Generally, spouses are competent but not compellable witnesses for the prosecution. However, there are exceptions whereby a spouse may be a competent and compellable witness against the other spouse for the prosecution, for example where the person is charged with an offence under Chapter XV of the Penal Code Cap. 16(offences against morality) and under the Law of Marriage Act, Cap. 29.

REFERENCE

BOOKS

Dennis I.,(2010).“the Law of Evidence”, 4th Edition, Sweet and Maxwell, London.

STATUTES

Evidence Act [Cap 6 R.E 2002].