I-CAN-GHANA

By definition, a Re-Examination is an examination of a witness after a cross-examination, by the lawyer who called him as a witness, upon matters arising out of such cross-examination.

I have come to believe that trial courts, judges and lawyers in Ghana are or have become so extremely intolerant of re-examination that re-examination is literally dying in our courts. The reality is that often, at the end of the cross-examination, the judges and lawyers and witness are all very tired. Everyone is in a hurry to either leave the court room or call the next case. Therefore there is very little interest in subjecting the witness to further time in the witness box. Often, the lawyer who called him as a witness and led him in the examination-in-chief is probably feeling too lazy to go back and go through the cross-examination to see whether there are any matters on which a re-examination would be required. It is also likely that that lawyer has spent the entire period of the cross-examination raising pointless objections over matters which he properly should be re-examining the witness on.

Thus in the vast majority of trials that I have witnessed, the words of counsel whose witness has just undergone cross-examination are “there will be no re-examination, My Lord.” And in almost every re-examination that I have seen, the counsel who just completed his cross-examination has objected to virtually every question asked in re-examination on the grounds that “there is no ambiguity with respect to the matter.” Mea culpa, I would admit. But I believe that the time has come for lawyers to begin to do a neater and cleaner job for clients at the re-examination stage.

The law that regulates what can or cannot be done in re-examination is captured quite cryptically in section 73 of the Evidence Act, 1975 (NRCD 323), with the side-note “Scope of re-examination,” and in the following words:

(1) Subject to the discretion of the Court, re-examination shall be directed to the explanation of matters referred to in cross-examination. (2) A witness cannot be re-examined or otherwise further examined as to the same matter raised by the examining party on a previous examination without the leave of the Court, but the witness may be re-examined or otherwise further examined as to a new matter upon which the witness has been examined by another party to the action.

In subsection (1), we are told that re-examination should aim at explaining matters that came up during cross-examination. Subsection (2) bars the lawyer re-examining from examining on matter that he had raised in his examination-in-chief, and states that any re-examination or further examination is limited to new matters that the witness has been cross-examined on. The rather well-researched and well-written official commentary explains that the law does not allow infinite rounds of questioning, and that the opportunity afforded by Re-examination “is essentially limited to new matters raised on cross-examination.”

In OKUDZETO v. COMMISSIONER OF POLICE [1964] GLR 588, the Supreme Court stated that the object of re-examination is to explain evidence given under cross-examination, and that it is not to be used to get a witness to deny or cancel evidence already given under cross-examination. That is why where a witness’s evidence under cross-examination is subsequently contradicted by him in re-examination, the whole evidence of the witness should be discredited by the trial court.

And in SEATEC LTD. v. PENTON HOOK FARMS LTD. & ANOTHER [1984-86] 1 GLR 605, the Court of Appeal held that where a question had been properly objected to and rightly upheld during examination-in-chief, it would be improper for counsel to attempt to ask the same question in re-examination. What was more, if the witness was not cross-examined on a matter he could not be re-examined on that matter, because it did not arise out of the cross-examination.

It is in the light of the above that a lawyer re-examining is not permitted to ask any question that does not arise out of the cross-examination. He also has no right to ask his own witness leading questions at this stage. He will not be allowed to waste time by asking over again questions already put in chief.

The above limitations do not detract from the general position of the law re-examination affords the witness an opportunity of explaining any seeming inconsistency in his answers in cross examination. The witness is allowed to state the whole truth as to any matter which was touched on, but not fully dealt with in cross-examination. Human memory is not perfect. And the pressure of undergoing cross-examination can lead to slips, faulty perception and erroneous memory. The purpose of re-examination is to fix these, because after all, the court is more concerned with doing justice than scoring points in cross-examination. It is therefore a very important tool that counsel who call witnesses must not treat, and must stop treating, as trifling.

THE RIGHT TO CROSS-EXAMINE IN A TRIAL BY AFFIDAVIT EVIDENCE

It is trite that the keystone of common law evidence is the reliance on confrontation and examination as a means for discovering the truth. Every party has an undeniable right to examine any witness who testifies at the trial of that action. Section 62(1) of Ghana’s Evidence Act provides that “at the trial of an action”, the witness must submit to examination by all parties who “choose to attend and examine.” The right to cross-examine is the right of the adverse party, and absent any extraordinary or extenuating circumstances, I do not see how a court can deny that right.

It is for this reason that section 62(2) provides the safeguard for circumstances where complete examination is denied. That is why the section gives the court the discretion to strike out testimony which has not been subject to complete cross-examination so as to meet the demands of fairness. In Mansah v. Nimoah [1961] GLR 511, the trial court failed to invite a party to cross-examine some 2 parties who testified. On appeal it was held that the evidence not having been subjected to cross-examination was “improper” and a judgment based on it could not stand. See Atuahene v. COP [1963] 1 GLR 448, where the court held that if a witness who has testified in chief is not available for cross-examination, the court should either expunge the testimony from the record or insist upon his appearance in court. The court is not entitled to act upon such evidence. The “Atuahene Principle” was cited and applied in Banda v. The Republic [1975] 1 GLR 52, where the court held that if a court itself precludes the right to cross-examine, then the question whether or not such denial occasioned substantial miscarriage of justice would depend on factors such as the nature of the cross-examination sought. Atuahene was also cited and applied by the Court of Appeal in Laryea v. Oforiwah [1984-86] 2 GLR 410, where the court re-stated the right of a party to test, under cross-examination, the veracity and accuracy of the evidence-in-chief given by a witness, and that if he is denied that opportunity, then the whole of the evidence given by that witness ought to be expunged from the record.

Thus where a court determines that the mode of testimony in a trial is by affidavit evidence, the evidence proffered by the affidavit is effectively the evidence-in-chief of the deponent (i.e. the person who swears that affidavit.) The deponent is therefore a witness in the trial. Then it would stand to reason that it is the right of the adverse party to decide which of the deponents that it would want to cross-examine. Note that it is risky for a party to choose not to call and cross-examine a deponent/witness, because that party would be deemed to have waived the right to impugn the testimony contained in the affidavit on the grounds that it has not been tested by cross-examination.

Taking evidence by affidavit is neither new nor strange. The High Court Rules provide specifically for it, and maybe there is something to be learned from there. Under those rules, the High Court may order evidence to be given by way of an affidavit of a witness being read at the trial. This rule is usually of much value when the witness is abroad (at the time) or the evidence will not be contested. A draft of the proposed affidavit should be submitted for the consideration of the other side before the application. Thus it is not practicable to make such an order where the evidence will be strongly contested and its credibility will depend on the court’s view of the witness. It should be noted that in the High Court, the court may refuse to act on an affidavit where the deponent cannot be cross-examined and if the deponent does not attend for cross-examination where notice to cross-examine has been given, the affidavit cannot be read in his absence without leave. See the English cases of Dunne v. English (1874) LR 18 Eq 524, Bingley v. Marshall (1862) 6 LT 682 and Shea v. Green (1886) 2 TLR 533.

It would truly be novel if a court denies a party’s request to cross-examine a witness, under any circumstances

One of the consequences of the current TV and radio broadcast of the Presidential Election Petition is that people are talking about the case. It doesn’t appear as if anyone is interested in stopping it. And they are not just talking; they are criticising the parties, the lawyers and even the court. Such free unhindered commentary on a pending case is unprecedented in our legal history. Note that thus far, no one has cited anyone for contempt. Is it the case that anyone who makes such an application will be laughed out of the court? Literally, almost everyone is guilty of contempt where this case is concerned.

I am convinced that one of the laws that the current TV broadcast of the Presidential Election Petition should change forever is the law on CONTEMPT OF COURT. And it might be time to consider legislation to regulate the application of the law of Contempt of Court, to move away from its current conservative and narrow application. We don’t have a choice. The live coverage must broaden the bounds of public commentary on pending cases.

Let’s start from the general principle. The court has a general power to punish contempt by committing the offender. The underlying object and purpose of the law of contempt is to maintain the right of the citizen to a fair and unimpeded system of justice and to protect orderly administration of law. The due administration of justice requires unhindered access of all citizens to the court, justice free from bias and no usurpation of the function of the court to decide according to law.

There are generally two classifications of contempt: civil contempt (i.e. conduct involving a breach of a court order) and criminal contempt (refers generally to other conduct which interferes with the due administration of justice).

But of particular interest to me this morning is the latter, CRIMINAL CONTEMPT. It generally refers to words or acts that obstruct or tend to obstruct or interfere with the due administration of justice. It also has two manifestations:

(i) Contempt in facie curiae – i.e. contempt in the face of the Court: this is not confined geographically to the courtroom. It refers to any word spoken or act done in or in the precinct of the court, which obstructs or interferes with the due administration of justice or is calculated to do so, e.g. attempts to interfere with witnesses, assaults in court, insults to the court, interruption/disruption of court proceedings, RECORDING, FILMING, PHOTOGRAPHING OR SKETCHING IN COURT WITHOUT THE COURT’S PERMISSION, disobedience to a subpoena, refusal to be sworn and/or answer questions; and

(ii) Contempt outside the Court: words spoken/published, or acts done outside the court, intended or likely to interfere with/obstruct the fair administration of justice. This applies to acts that interfere with or obstruct persons having duties to discharge in a court or officially connected with court proceedings (e.g. bailiffs), obstructing the process of court, assisting in the breach of an injunction or undertaking. ALSO COVERED ARE PUBLICATIONS INTENDED OR LIKELY TO PREJUDICE THE FAIR TRIAL OR CONDUCT OF PROCEEDINGS, PUBLICATIONS WHICH PREJUDGE OR PRE-EMPT ISSUES IN PENDING PROCEEDINGS, and publications which scandalize or otherwise lower the authority of the court.

Should this still be the law? Trust me, I believe that this telecast/broadcast is gonna change a lot of things in this country.