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Chapter 11: Witnesses

 Table Of Contents  

[11.0] Introduction 

Section 10(2) of the Constitution provides (in part): 

'Every person who is charged with a criminal offence – 

(a)                shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court in the same conditions as those applying to witnesses called by the prosecution;' 

All statements should be recorded as soon as possible after the commission of the offence whilst the incident is still fresh in the memory of the witness.

Notes made at the time of the incident can be used to refresh the memory of any witness for the purpose of: 

[i] recording their statement; and 

[ii] giving evidence in court. 

All statements are to be recorded in the actual words of the person making the statement. The use of police expressions or legal terms is to be avoided. Statements are to contain what the witness knows, ie., perceives with his/her own senses, not what he/she has been told by someone else, subject to the 'Hearsay Rule'. 

Any relationship between witnesses and a defendant and between witnesses themselves should be fully explained in the statements of the witnesses. The relationship between a witness and a defendant may assist a court in determining whose version of the facts is more probable, see Charles Kwaita v R [1990] SILR 71 at page 74. 

Exhibits proposed to be tendered should referred to in statements of witnesses and noted on the 'Witness List'. A pro forma 'Witness List' is on page 308. 

The law relating to: 

·                     'Discretion To Call Witnesses' is examined commencing on page 120; 

·                     'Refreshing Memory From Notes' is examined commencing on page 295; 

·                     the 'Hearsay Rule' is examined commencing on page 176; 

·                     'Exhibits' is examined on page 238; and 

·                     'Interpreters' is commencing examined on page 346. 

[11.1] Order To Call 

[11.1.1] Prosecution 

Prior to determining the 'order' in which to call witnesses, there should be consultation between the assigned prosecutor and the Arresting / Investigating Officer. 

Essentially witnesses should be called in a logical sequence in court. This can be achieved by firstly calling the Arresting / Investigating Officer in order to: 

[i] outline any admission made or defence raised by the defendant; and 

[ii] produce exhibits relevant to the charge/s, 

followed by the other witnesses in chronological order. 

It must never be forgotten that the Court generally will have no idea about the prosecution case. 

In Saffron v R (1988) 17 NSWLR 396 the Court held at page 457: 

'There is no rule of law, absent some relevant statutory provision, that requires a judge (even if he has the power) to reject evidence tendered by the Crown because of the order in which the witnesses are called.' 

There is no such statutory provision applicable to Solomon Islands. 

The law relating to: 

·                     the 'Prosecution Discretion To Call Witnesses' is examined commencing on page 120; and 

·                     'Exhibits' is examined commencing on page 237. 

[11.1.2] Defence 

A Court may make an adverse comment regarding the failure to call a particular potential witness by the defence if: 

[i] the prosecution had no means of knowing that the potential witness had 'material evidence' to give; and 

[ii] the prosecution were not advised of the identity of that potential witness, prior to the closure of its case, see R v Gallagher [1974] 2 AllER 118; [1974] 1 WLR 1204; (1974) 59 CrAppR 239; [1974] CrimLR 543. 

Section 142 of the Criminal Procedure Code (Ch. 7) states: 

'Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.' (emphasis added) 

See also: R v Smith (Joan) (1968) 52 CrAppR 224; [1968] 1 WLR 636; [1968] 2 AllER 115. 

[11.2] Attendance 

[11.2.1] Responsibilities Of Prosecutors 

It is the responsibilities of assigned prosecutors to: 

[i] arrange for issuance of 'Summonses to Witness' only to the respective Arresting / Investigating Officer in accordance with section 127 of the Criminal Procedure Code (Ch. 7). See also section 60 of the Magistrates' Courts Act (Ch. 20). 

 Witnesses must be able to give 'material evidence'. Evidence is 'material' if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Berkshire County Council [1996] 1 CrAppR 239. 

If a court is satisfied that a witness will not attend in obedience to a summons to witness, it may issue a 'warrant' to compel the witness to give evidence, see sections 128 to 130 of the Criminal Procedure Code (Ch. 7) and sections 60 and 61 of the Magistrates' Courts Act (Ch. 20). 

 Furthermore, unless any documents or writings which are required to be produced are 'prima facie' admissible, the 'Summons To Witness' may be set aside, see R v Cheltonham JJ, Ex parte Secretary of State for Trade [1977] 1 AllER 460; [1977] 1 WLR 95; 

[ii] monitor the issuance of 'Summonses to Witness' to other witnesses to be called by the prosecution; 

[iii] apply for the issuance of a 'Warrant in the First Instance' in respect of all witnesses who fail to attend Court, in accordance with sections 128 and 129 of the Criminal Procedure Code (Ch. 7); and 

[iv] furnish a report under his/her hand to his/her Officer – in – Charge outlining the circumstances whenever a police officer fails to attend court. 

See also: Section 116 ['Conspiracy to Defeat Justice'] of the Penal Code (Ch. 26). 

[11.2.2] Responsibilities Of Arresting Or Investigating Officers 

In R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995) Lungole – Awich J commented at page 1: 

'It is the duty of the police to assist crown counsel and ensure that witnesses are in attendance. Much of the good work of the police in investigating crime will be fruitless if the police neglects the last, but important bit of assisting counsel prosecuting the case, by bringing witnesses to court.' 

It is the responsibility of Arresting / Investigating Officers to ensure that: 

[i] all witnesses have been issued with a 'Summonses to Witness'; 

[ii] they make arrangements for the transportation of such witnesses, as required; and 

[iii] they communicate with the assigned prosecutor at least seven days prior to the 'Trial or Preliminary Investigation / Inquiry'. 

For an adjournment to be granted because of the unavailability of a witness it must be shown that the witness would give or is in possession of 'material evidence', see R v Bishop (1980) 54 FLR 1. See also: section 127 of the Criminal Procedure Code (Ch. 7) & section 60 of the Magistrates' Courts Act (Ch. 20). 

The law relating to: 

·                     'Preliminary Investigations / Inquiries' is examined commencing on page 310; and 

·                     'Adjournments' is examined commencing on page 392. 

[11.3] Witness Conferences 

Taking into account that some witnesses will not: 

[i] have been to court and therefore do not understand what is the procedure; and 

[ii] know what is expected of them, 

it is important that there is communication between prosecutors and all witnesses to be called by the prosecution, prior to them giving evidence. 

Whilst communicating with witnesses, prosecutors should be careful not to express an inappropriate attitude. Therefore, they should show respect to all witnesses to be called by the prosecution. 

All witnesses must be spoken to individually, including 'expert witnesses' who must base their opinion on primary facts. 

Speaking to witnesses is of particular importance if the witness is either: 

·                     a victim of a sexual offence; 

·                     a child; 

·                     elderly; 

or if the evidence will obviously cause some distress to the witness. 

In R v Skinner (1994) 99 CrAppR 212 Farquharson LJ, delivering the judgment of the Court of Appeal, held at pages 216 – 217: 

'In some circumstances, of course, it is evitable that discussions between witnesses will take place as where, for example, all the witnesses come the same family. […]

[... In] Richardson [(1971) 55 CrAppR 244; [1971] 2 QB 484 …] where the learned judge giving the judgment of the Court, Sachs LJ said at p. 251 and p. 490B:

"Obviously it would be wrong if several witnesses were handed statements in circumstances which enables one to compare with another what each had said." 

Whilst that is not directly the situation here, obviously the sense of what the Lord Justice is saying would apply in the present case. In other words, as a general rule, any discussions as to what evidence is going to be given by them should never take place between two or more witnesses. 

Counsel goes on to say that statements or proofs should not be read to witnesses in each other's presence. That must obviously follow because it would amount to a discussion between the pair of them as to what evidence is going to be given; one would be enlightened by the evidence that is to be given by the other.' (emphasis added) [words in brackets added] 

Therefore, witnesses should: 

[i] never be told what other witnesses have said or going to say: 

[a] by a prosecutor; or 

[b] by any other police officer; 

[ii] be told that they can: 

[a] read their statement prior to giving evidence; and 

[b] refer to any notes made at about the time of the incident prior to giving evidence. 

The law relating to 'Witnesses Refreshing Their Memory' is examined commencing on page 295; 

[iii] be told that they are not permitted to: 

[a] show their statements to any other potential witness; or 

[b] discuss their evidence with any other potential witness; 

[iv] be advised of the procedure which will occur in court, ie., asked to give evidence in the witness box after taking the oath / affirmation and then be cross – examined; 

[v] be told that they will be required to tell the truth to the Court or they can be punished. 

In R v Philip Tahea & others (Unrep. Criminal Case No. 14 of 1995) Palmer J commented at pages 2 - 3: 

'I feel compelled at this juncture to express my deep displeasure, at the way the Oath that a witness takes to tell the truth, the whole truth in court, and that includes answering questions, has been blatantly abused and taken for granted by witnesses who come before this Honourable Court. Taking the oath is a solemn act in itself, and directly invokes the Authority of God Almighty, recognizing His Omnipresence and Omniscience, as the Witness to the testimony of the witness. All witnesses therefore who take the oath must take it seriously, and seek actively at all times, to speak the truth according to the best of their ability, knowledge and understanding, instead of deliberately lying in court. I raise this concern now because it is clear to me that there are some witnesses who do not appreciate the value and significance of the oath and the assistance that it provides to the Courts in the due administration of justice. I think we should remind ourselves, not to use the oath as a mere human tool which can be abused at will but also a solemn act, in which we make ourselves accountable not only to men, but also to God Almighty. It is my hope that we will have fewer cases where witnesses come to this courts and deliberately lie through their teeth'; and 

[vi] be asked what occurred in their own words and definitely never told what to say and any discrepancies should be noted.

A conference with a witness provides an ideal chance for a prosecutor to determine if a witness has the tendency to be: 

·                     hostile; and / or 

·                     nervous, etc. 

The law relating to: 

·                     the 'Opinion Evidence - Expert Witnesses' is examined commencing on page 202; and 

·                      'Hostile Witnesses' is examined commencing on page 288.

[11.4] Property In Witnesses 

In Harmony Shipping Co SA v Davis & others [1979] 3 AllER 177 [[1979] 1 WLR 1380] Lord Denning MR, with whom Waller and Cumming – Bruce LJ concurred, held at page 180: 

'So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side or the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence and from issuing him with a subpoena.' (emphasis added) 

Therefore, no police officer is to hinder the defence in speaking to witnesses who may potentially be called by the prosecution. However, no witness can be required to speak to either the prosecution or the defence, prior to giving evidence. It is entirely at the witness's own discretion. 

See also: Connolly v Dale [1996] 1 CrAppR 200 at page 205. 

[11.5] Prosecutor As A Witness 

Under no circumstances should a police officer prosecute a case in which he/she is likely to give evidence, see Fidelis Agai v Buckly Yarume [1987] PNGLR 124. 

[11.6] Prisoners As Witnesses 

Section 131 of the Criminal Procedure Code (Ch. 7) states: 

'Any court desirous of examining as a witness, in any case pending before it, any person confined in any prison may issue an order to the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before the court for determination.' 

See also: section 99 of the Criminal Procedure Code (Ch. 7) and section 64 of the Magistrates' Courts Act (Ch. 20). 

Prosecutors are to arrange for issuance of such an order if it is considered necessary to call a prisoner to give evidence for the prosecution. Obviously, such applications are to be made prior to the date of trial. 

[11.7] Precincts Of Court 

In R v Smith (Joan) [1968] 2 AllER 115; (1968) 52 CrAppR 224; [1968] 1 WLR 636 the Court of Appeal held: 

It is a general rule and practice that witnesses as to fact, ie., witnesses not giving solely 'opinion' or 'character evidence', for either the prosecution or defence should remain out of court until they are required to give their evidence. 

However, all witnesses to be called by the prosecution should remain outside the precincts of the court. 

In Moore v The Registrar of Lambeth County Court [1969] 1 WLR 141 the Court held: 

The fact that a witness has been present in Court during the hearing or part of the hearing does not give the Court any discretion to refuse to hear the evidence of that witness although, of course, the fact that the witness had been present may go to the weight of the evidence. 

In Kiso v Manumanua [1981] PNGLR 507 Kearney DepCJ, sitting alone, held: 

Although it is a general rule of practice that witnesses other than the parties remain out of the hearing of the court until they come to give their evidence, a witness who remains in court, even where witnesses have been told to leave, cannot be excluded from testifying for that reason though the weight to be placed on his/her evidence may be reduced. 

See also: R v Thompson [1967] CrimLR 62 & R v Briggs (1931) 22 CrAppR 68. 

A prosecutor who observes a witness who is in court and who is to be called by the prosecution should speak to the witness and explain the need to be outside of the precincts of the court, until called to give evidence. If the witness refuses to leave the precincts of the court, the prosecutor should make an application for a court order under section 64 of the Criminal Procedure Code (Ch. 7) and have the witness escorted from the court. 

That section states: 

'The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them: 

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court.' (emphasis added)

A witness who disobeys such an order may be punished for contempt. 

If it becomes apparent that a witness called by the prosecution and who is in the witness box was in court before he/she was called to give evidence, the prosecutor should ask the witness what evidence he/she heard in order to ensure a fair trial for the defendant. The 'weight' to be given to the evidence of that witness must be considered in light of the evidence which he/she heard whilst in court, prior to giving evidence. 

Arresting / Investigating Officers are responsible for ensuring that witnesses intended to be called by the prosecution do not enter the precincts of the court, prior to giving evidence. 

The law relating to: 

·                     'Character Evidence' is examined commencing on page 207; 

·                     'Opinion Evidence' is examined commencing on page 202; 

·                     'Right To Be Heard In Open Court' is examined commencing on page 155; and 

·                     the 'Weight' to be given evidence is examined on page 173. 

[11.8] Competency 

[11.8.1] Introduction 

Section 134 of the Criminal Procedure Code (Ch. 7) states: 

'Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation: 

Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring that the taking of any oath whatever is according to his religious belief unlawful, or who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath; the fact of the evidence have been so taken being also recorded in the proceedings.' (emphasis added) 

A witness who is able to lawfully give evidence is 'competent'. The 'competency' of witnesses is therefore a 'question of law'. 

It is the duty of the Court to determine the 'competency' of witnesses, see R v Surgenor (1940) 27 CrAppR 175. 

The 'competency' of all witnesses should be done in the presence of the defendant, see R v Divine (1929) 21 CrAppR 176 at page 178. 

The court may question a witness at any stage of his/her evidence to determine whether the witness understands the obligations imposed by taking an oath, see R v Wilson (1924) 18 CrAppR 108 at page 109. 

If the 'competency' of a witness is challenged: 

[i] the prosecution must prove the 'competence' of the witness beyond reasonable doubt, see R v Yacoob (1981) 72 CrAppR 313; [1981] CrimLR 248; and 

[ii] the defence must prove the 'competence' of the witness on the balance of probabilities, see 'Archbold Criminal Pleadings, Evidence & Practice', 2002 ed., at page 1038. 

The issue of 'competence' should be determined prior to the witness gives evidence, see R v Hampshire [1995] 3 WLR 260; [1995] 2 CrAppR 319; [1995] 2 AllER 1019 & R v Yacoob (supra). 

In order to determine 'competence', a voir dire proceedings should be conducted, see R v Hampshire (supra). 

The law relating to 'Voir Dire Proceedings In Respect Of Confessional Evidence' is examined commencing on page 219. 

However, not all competent witnesses are able to be compelled to give all evidence within their knowledge. The law relating to the 'Compellability Of Witnesses To Give Evidence' is examined commencing on page 287. 

[11.8.2] Husbands & Wives 

[A] Prosecution 

Section 136 of the Criminal Procedure Code (Ch. 7) states: 

'In any inquiry or trial the wife or husband of the person charged shall be a competent witness for the prosecution or defence without the consent of such person – 

(a)                in any case where the wife or husband of a person charged may, under any law in force for the time being, be called as a witness without the consent of such person; 

(b)               in any case where such person is charged with an offence under Part XVI ['Offences Against Morality'] or section 170 ['Bigamy'] of the Penal Code; 

(c)                in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.' (emphasis added) [words in brackets added]

See: R v Lapworth (1930) 22 CrAppR 87 – 'Grievous Harm'; R v Blanchard (1951) 35 CrAppR 183 – 'Gross Indecency' & R v Moore (1954) 38 CrAppR 95 – 'Arson'. 

Prior to giving evidence for the prosecution, a spouse should be advised that: 

[i] he/she has the right to refuse to give evidence and that if he/she chooses to give evidence he/she will be treated like any other witness, see R v Pitt [1982] 3 AllER 63; [1982] 3 WLR 359; [1983] QB 25; (1982) 75 CrAppR 254; [1982] CrimLR 513; Hoskyn v Metropolitan Police Commissioner [1978] 1 AllER 136; [1979] AC 474; [1978] 2 WLR 695; [1978] CrimLR 429; (1978) 67 CrAppR 88 & R v Acaster (1912) 7 CrAppR 187; (1912) 22 CoxCC 743; and 

[ii] if he/she decides to become 'hostile' whilst giving evidence, he/she can be cross – examined, subject to the approval of the Court, see R v Pitt (supra).  

The law relating to 'Hostile Witnesses' is examined commencing on page 288. 

In R v Khan (1987) 84 CrAppR 44 Glidewell LJ, delivering the judgment of the Court, stated at page 50: 

'[T]he decision of the Court [in R v Yacoob (1981) 72 CrAppR 313] makes it clear that it was accepted on all sides, and the Court certainly based its decision upon the proposition, that even though she was living with the man as his wife, if her marriage to him was bigamous and thus invalid, she was a perfectly competent witness against him and could be called on behalf of the prosecution. 

If that be the position with somebody who has gone through an invalid ceremony of marriage because it is bigamous, what is the position of a lady who has gone through a ceremony of marriage which under the religious observances of a faith, and under the law of some other countries, is entirely valid, but which, because it is a second polygamous marriage, is of no effect in the law of this country? In our judgment the position so far as her ability and competence to give evidence is concerned is no difference from that of a woman who has not been through a ceremony of marriage at all, or one who has been through a ceremony of marriage which is void because it is bigamous.' (emphasis added) 

As regards the admissibility of communication between spouses, see R v Verolla (1962) 46 CrAppR 252; Rumpling v Director of Public Prosecutions [1962] 3 WLR 763; [1962] 3 AllER 256; [1962] AC 814; (1962) 46 CrAppR 398 & R v Deacon [1973] 2 AllER 1145; [1973] 1 WLR 696; [1973] CrimLR 781; (1973) 57 CrAppR 688. 

As regards the 'competency of former wives', see R v Algar (1953) 37 CrAppR 206 & R v Ash (Leonard) & others (1985) 81 CrAppR 294. 

See also: Moss v Moss (1963) 47 CrAppR 222.

[B] Defence 

Section 136 of the Criminal Procedure Code (Ch. 7) states: 

'In any inquiry or trial the wife or husband of the person charged shall be a competent witness for the prosecution or defence without the consent of such person – 

(a)                in any case where the wife or husband of a person charged may, under any law in force for the time being, be called as a witness without the consent of such person; 

(b)               in any case where such person is charged with an offence under Part XVI ['Offences Against Morality'] or section 170 ['Bigamy'] of the Penal Code; 

(c) in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.' (emphasis added) [words in brackets added]

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(a)                the failure of […] the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution; 

[…] 

(c)                the wife or husband of the person charged shall not, save as hereinbefore mentioned, be called as a witness except upon the application of the person so charged;'

[11.8.3] Children

[A] Introduction 

Section 134 of the Criminal Procedure Code (Ch. 7) states: 

'Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation: 

Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring that the taking of any oath whatever is according to his religious belief unlawful, or who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath; the fact of the evidence have been so taken being also recorded in the proceedings.' (emphasis added) 

It is the duty of the Court to satisfy itself as to whether a child of tender years is capable of being sworn, see R v Surgenor (1940) 27 CrAppR 175 at page 177. To be sworn in the child needs to understand the nature and solemnity of the oath, see R v Khan (1981) 73 CrAppR 190 at page 193. 

In The State v John Saganu (Unrep. N1261 (PNG); 25, 26 & 28 July 1994) Doherty J, sitting alone, commented: 

'Children are more susceptible to suggestion they have shorter memory recall and more vivid imaginations than adults. Care should be taken with their evidence but if the court seeing the witness before it considers and finds he is speaking nothing but the truth then the court is entitled to accept it.' 

In R v G [1994] 1 QdR 540 Pincus J, as a member of the Court of Appeal, made the following observation at pages 546 – 547: 

'It seems fairly common for young complainants, speaking of sexual abuse, to give inconsistent or confusing accounts; more generally, ordinary experience of young children suggests that some have difficulty attributing numbers and dates to events and getting sequences right.'

See also: R v Reynolds [1950] 1 KB 606; [1950] 1 AllER 335; (1950) 34 CrAppR 60. 

[B] General Principles 

In R v David James N (1992) 95 CrAppR 256 Judge J, delivering the judgment of the Court of Appeal, stated at page 260: 

'Neither the present statutory provisions, nor their predecessors, provided a minimum or arbitrary age limit below which children should not give evidence. The practice of the courts was varied. For example, in DPP v Christie (1914) 10 CrAppR 141, [1914] AC 545 the House of Lords made no adverse comment on the reception of the unsworn evidence of a child aged five years. Nevertheless for some years after the decision of the Court of Appeal in Wallwork (1958) 42 CrAppR 153 it became a rule of practice that children of five years or under should not be called to give even unsworn evidence. The practice was followed for many years and was confirmed in the case of a child of six years in Wright (1990) 90 CrAppR 91.' 

In R v Sharman [1998] 1 CrAppR 406 Mantell LJ, delivering the judgment of the Court of Appeal, stated at page 408: 

'The common law rule has always been that the testimony of a witness to be examined viva voce in a criminal trial is not admissible unless he has previously sworn to speak the truth. […] 

It was formerly an exception to the general rule that a child's evidence might be received unsworn if it were considered by the court that the child in question did not comprehend the meaning of the oath provided always that he or she understood the difference between truth and falsehood.'

In R v X, Y & Z (1990) 91 CrAppR 36 Lord Hutchison CJ, delivering the judgment of the Court of Appeal, stated at pages 41 – 42: 

'But it is a trite observation, I make it nonetheless, that whatever questions are asked or are not asked, the judge in the end really has to judge the situation upon the child's demeanour. He has to ask himself whether, having heard what the witness said, having seen the way the witness has said it, and watched the way the witness has behaved while questions were being asked, it is someone who realizes the gravity of the situation. 

The matter is well illustrated in the case of Hayes (1977) 64 CrAppR 194, [1977] 1 WLR 234 in the judgment of Bridge LJ who gave the judgment of the Court, when he said this at p. 196 and 237 A-D: 

"The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct."' 

Therefore, it is at the discretion of the Court as to whether a child should be called to give evidence, sworn or unsworn. 

In R v Spencer & R v Smails (1986) 83 CrAppR 277 [[1987] AC 128; [1983] 3 WLR 348; [1986] 2 AllER 928] Lord Ackner, with whom the other Lordships concurred, stated at page 286 – 287: 

'Where there is no corroboration, the rule of practice merely requires that the jury should be warned of the danger of relying upon the sole evidence of an accomplice, or of the complainant in the sexual case, or upon the evidence of a child. The warning to be sufficient must explain why it is dangerous so to act, since otherwise the warning will lack significance. The jury are, of course, told that while as a general rule it is dangerous so to act, they are at liberty to do so if they feel sure that the uncorroborated witness is telling the truth.' (emphasis added) 

See also: R v Johnson Tome (Unrep. Criminal Case No. 24 of 1990; Ward CJ; at page 1) & R v Bellamy (1986) 82 CrAppR 222; [1986] CrimLR 54.

As to whether the evidence of an expert should be admitted to assist in determining the competence of a child witness, see G v Director of Public Prosecutions [1997] 2 CrAppR 78. 

The law relating to: 

·                     the 'Opinion Evidence - Expert Witnesses' is examined commencing on page 202; and 

·                     'Corroboration' is also examined commencing on page 668.

[11.8.4] Mentally Ill Witnesses 

It is a question of degree of 'mental illness' as to whether a witness is competent to give evidence. Subject to such a person having a sufficient appreciation of the seriousness of the occasion and a realisation of the importance of the oath, he/she should be allowed to give sworn evidence, see R v Bellamy (1986) 82 CrAppR 222; [1986] CrimLR 54 & R v Dunning [1965] CrimLR 372. 

If the only evidence for the prosecution is a witness with a mental condition that may impact on the witness's credibility, then a Court should be careful in convicting based on such evidence, see R v Spencer; R v Smails [1986] 2 AllER 928; [1986] 3 WLR 348; [1987] AC 128. 

See also: Toohey v Metropolitan Police Commissioner [1965] 2 WLR 439; [1965] AC 595; [1965] 1 AllER 506; (1965) 49 CrAppR 148.

[11.9] Compellability 

Section 11 of the Magistrates' Courts Act (Ch. 20) states (in part): 

'Subject to the provisions of this and of any other Act, every justice of the peace shall, subject to any exceptions which may be contained in his appointment, within the area in and for which he holds such office, have – 

(a)                all the powers, rights and duties of a Magistrate under this or any other Act to – 

(i) issue summonses and warrants for the purpose of compelling the attendance of […] persons as witnesses before a Court;' (emphasis added) 

Section 63 of the Magistrates' Courts Act (Ch. 20) states: 

'Any person present in court, whether a party or not in a cause or matter, may be compelled by any Magistrate's Court to give evidence, or produce any document in his possession or in his power, in the same manner and subject to the same rules as if he had been summonsed to attend and give evidence, or to produce such document, and may be punished in like manner for any refusal to obey the order of the Court.' (emphasis added) 

Witnesses may also be 'compelled' to give evidence by the issuance of a 'Summons to Witness', see section 127 of the Criminal Procedure Code (Ch. 7) and section 60 of the Magistrates' Courts Act (Ch. 20). 

If a court is satisfied that a witness will not attend in obedience to a summons to witness, it may issue a 'warrant' to compel the witness to give evidence, see sections 128 to 130 of the Criminal Procedure Code (Ch. 7) and sections 60 and 61 of the Magistrates' Courts Act (Ch. 20). 

Section 135(1) of the Criminal Procedure Code (Ch. 7) states: 

'Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence – 

(a)                refuses to be sworn; or 

(b)               having been sworn, refuses to answer any question put to him; 

(c)                refuses or neglects to produce any document or thing which he is required to produce; or 

(d)               refuses to sign his deposition, 

without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit such person to prison, unless he sooner consents to do what is required of him.' 

That section provides the authority of a court to keep such a witness in custody until he/she consents to do what is required of him/her. 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(d) nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage.' (emphasis added) 

See also: section 10(11)(b) of the Constitution, sections 55, 56, 57, 65 & 66 of the Magistrates' Courts Act (Ch. 20) & section 318 of the Criminal Procedure Code (Ch. 7).

[11.10] Hostile Witnesses

[11.10.1] Defined

In R v Prefas & Pryce (1988) 86 CrAppR 111 [[1987] CrimLR 327] Lord Lane CJ, delivering the judgement of the Court of Appeal, stated at page 114: 

'We have been referred helpfully to Stephen's Digest on the Law of Evidence, Article 147, in which the common law rules are set out. It may be helpful if I just read them: 

"Unfavourable and Hostile Witnesses: If a witness called by a party to prove a particular fact in issue or relevant to the issue fails to prove such fact or proves an opposite fact the party calling him may contradict him by calling other evidence, and is not thereby precluded from relying on those parts of such witness's evidence as he does not contradict. 

If a witness appears to the judge to be hostile to the party calling him, that is to say, not desirous of telling the truth to the Court at the instance of the party calling him, the judge may in his discretion permit his examination by such party to be conducted in the manner of a cross – examination to the extent to which the judge considers necessary for the purpose of doing justice. 

Such a witness may by leave of the judge be cross – examined as to – (1) facts in issue or relevant or deemed to be relevant to the issue; (2) matters affecting his accuracy; and as to (3) whether he has made any former statement, oral or written, relative to the subject – matter of the proceeding and inconsistent with his present testimony [...]".' (emphasis added) 

In Hutchinson (1990) 49 ACrimR 229 the Court held: 

The correct test for deciding whether a witness should be declared a hostile witness is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him/her or for the advancement of justice. The crucial consideration is whether the party calling the witness is unable for that reason to elicit the facts by non – leading questions. 

Therefore, a witness who has provided a statement and who is considered by the Court to be deliberately withholding 'material evidence' by reason of an 'unwillingness' to tell the whole truth may be declared a 'hostile witness' and cross – examined by the prosecutor. 

Such 'unwillingness' may be exhibited by a witness who: 

[i] is reluctant to give evidence, see R v Thompson (1977) 64 CrAppR 96. 

However, the degree of reluctance is the consideration as to whether a particular witness is 'hostile'. In Daniel Samani v R (Unrep. Criminal Appeal Case No. 2 of 1995) the Court of Appeal considered a case in which the complainant after giving some evidence refused to answer any further questions and in effect 'remained silent'. In that case there was no application to have the witness declared 'hostile'. Williams JA with whom Kapi JA concurred, stated at page 8: 

'It is always a matter of concern when a critical prosecution witness, for whatever reason, remains silent and does not answer pertinent questions addressed by the court. It is however, not an entirely unknown circumstance when one is dealing with criminal conduct in the family environment.'; 

[ii] gives evidence inconsistent with his/her prior statement; or 

[iii] professes to have forgotten what happened.

See also: R v Pitt [1982] 3 AllER 63; (1982) 75 CrAppR 254; [1983] QB 25; [1982] 3 WLR 359; [1982] CrimLR 513. 

The 'demeanour' of a witness when giving evidence, ie., behaviour of a witness in the witness box, may assist a Court in determining whether he/she is 'hostile', see R v Daley [1989] CrimLR 817; McLellan v Bowyer (1961) 106 CLR 95 & Hadlow (1991) 56 ACrimR 11.

A defence witness may also be declared 'hostile', see R v Booth (1982) 74 CrAppR 123; [1981] CrimLR 700.

[11.10.2] Forgetfulness 

In John Jaminan v The State (No. 2) [1983] PNGLR 318 Pratt J, as a member of the Supreme Court, stated at page 321: 

'Before [… the stage when a witness is declared hostile] is reached of course the trial judge will already infer that something has gone radically wrong [, by virtue of the questioning by the prosecutor, refer to page 292 in that regard,] but he may prefer to ask some questions about the matter before he consents to examining the particular statement. 

Those enquiries of themselves may reveal that the witness's memory is simply not as good now as it was at the time when he made the statement or that there may be some genuine ambiguity which has been misunderstood by counsel. If the trial judge however is unable to come to any definite conclusion as a result of his enquiries then of course he must examine the statement before leave can be granted to cross – examine upon it.' (emphasis added) [words in brackets added] 

In R v Manning [1968] CrimLR 675 the Court of Appeal held: 

A witness who is generally forgetful may be unfavourable to the prosecution but cannot be treated as hostile. 

See also: R v Honeyghon & Sayles [1999] CrimLR 221. 

Whilst 'leading questions' may be asked to forgetful witnesses in order to assist them to remember, such witnesses cannot be told what they are expected to say. The law relating to 'Leading Questions' is examined commencing on page 341.

[11.10.3] Criminal Procedure Act 1865 (UK) 

In R v Henry Bata & Ken Arasi (Unrep. Criminal Appeal No. 1 of 1998) the Court of Appeal held that sections 4 and 5 of the Criminal Procedure Act 1865 (UK) is applicable in the Solomon Islands by virtue of Schedule 3.1 of the Constitution. 

Section 3 states: 

'How far witnesses may be discredited by the party producing. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in the case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last – mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.' (emphasis added)

Section 4 states: 

'As to proof of contradictory statements of adverse witnesses. If a witness, upon cross – examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.' (emphasis added) 

Section 5 states: 

'Cross – examinations as to previous statements in writing. A witness may be cross – examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is contended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purpose of the trial as he may think fit.' (emphasis added) 

The law relating to 'Questioning The Credibility Of Defendants' is examined commencing on page 352.

[11.10.4] General Principles 

In R v Henry Bata & Ken Arasi (supra) the Court of Appeal held at page 4: 

'It is clear that a witness may be cross – examined as to any previous statements made in writing or otherwise. If a witness denies a prior inconsistent statement then his attention must be drawn to the parts which may be used to contradict him and the contradictory statement may be admitted in evidence as proof of contradiction.' (emphasis added)

In R v Derby Magistrates' Court, Ex parte B & Same v Same, Ex parte Same [1996] 1 CrAppR 385 [[1995] 3 WLR 681; [1995] AC 487; [1995] 4 AllER 526] Lord Taylor CJ, with whom the other members of the House of Lords concurred, stated at pages 391 – 392: 

'It is […] necessary to consider the statutory provisions governing the use which can be made of previous inconsistent statements. They are to be found in the Criminal Procedure Act 1865 (Lord Denman's Act). Sections 4 and 5 of the Act provide […]. 

It was contended by Mr Goldberg, QC for the respondent that section 4 applies only to oral statements and section 5 deals with written statements. That categorisation is adopted by the editors of Archbold (1995 ed., paragraphs 8-110 to 8-113) where, in reproducing sections 4 and 5, they have added the headings "Oral Statements" and "Written Statements" respectively as if they appeared in the statute which they do not. Although section 5 clearly refers only to written statements, we see no reason to confine section 4 to oral statements. Its wording does not so confine it and its content is apt to cover statements both oral and written. […] It is also asserted in Murphy on Evidence, 5th ed. (1995) at p. 477 and I agree with the exposition to be found there. Section 4 allows proof that a previous inconsistent statement was made if that is not distinctly admitted. Section 5 additionally permits (a) cross – examination of a witness as to a previous inconsistent written statement without showing him or her the statement and (b) contradiction of the witness's testimony by putting the previous statement to him. If he denies making it, the statement can be proved (section 4). Even if he admits making the statement but adheres to evidence inconsistent with it, the statement, or such part of it as the judge thinks proper, may be put before the jury (section 5, and see Beattie (1989) 89 CrAppR 302).' (emphasis added)

[11.10.5] Procedure 

In John Jaminan v The State (No. 2) [1983] PNGLR 318 the Supreme Court held: 

(1) If a prosecutor wishes to seek to have his/her witness declared hostile he/she must alert the Court and prepare the ground by asking a series of appropriate questions to the witness with a view to making a request for leave to cross – examine the witness as a hostile witness. 

The questions should include: 

(i) the fact that the witness has made a prior statement concerning the matter; 

(ii) where it was made; 

(iii) when it was made; and if possible 

(iv) an identification of the witness's signature on the written statement. 

(2) Where a witness is declared hostile the prosecutor may not only contradict him/her by other witnesses but may also by leave of the Court prove that he/she has made inconsistent statements. 

The defence must also be given the opportunity to show or argue that the witness is not being hostile. 

Witnesses need to be questioned after they have given evidence which is inconsistent with their prior statement, including: 

'[i] Did you on [the date the statement was provided to police] provide a statement to [full name, rank and station of the police officer] at [where the statement was taken] in relation to the matter before this Court? 

[ii] How was that statement recorded? 

[iii] Was that statement obtained with any force from [full name, rank and station of the police officer]? 

[iv] Did you tell [full name, rank and station of the police officer] the truth when you provided that statement? 

[v] Did you [sign / place your mark on] that statement? 

[vi] Would you look at the [signature / mark] on this statement? 

[vii] Is that your [signature / mark]? 

[viii] Did you read the statement or was it read to you before you [signed or marked] it? 

[ix] Were you forced to [sign or place your mark on] that statement? 

[x] Is what is contained in that statement the same as what you have told this Court today?' 

If a witness denies that he/she has provided a statement to police then permission should be sought from the Court to show the witness the statement. 

The prosecutor should then request permission to have the witness declared hostile so that he/she can be cross – examined on the contents of thestatement. 

When cross – examining a 'hostile witness', upon leave being granted by a Court, the prosecutor is firstly required to read to the witness those parts of the statement which are inconsistent with the evidence which the witness gave to the court, in order to contradict the evidence given by witness to the Court, see section 5. 

Such questioning must be concise. It is improper practice to ask a 'hostile witness' long passages from their statement and then ask for his/her comment. The passages relied on must be shown to the witness if it is intended to seek to tender the 'prior inconsistent statement', although there is no obligation to tender that statement. It is however, better practice if such statements are tendered as an exhibit. 

A prior inconsistent statement may be of a purely oral nature and in such circumstances the person who heard the oral statement may be called to prove that the statement was made, see R v Hart (1957) 42 CrAppR 47. 

See also: R v Beattie (1989) 89 CrAppR 302 & Price v Bevan (1974) 8 SASR 81.

[11.10.6] Duty Of The Prosecution 

In R v Francis & Warren (1956) 40 CrAppR 160 Lord Goddard CJ, delivering the judgment of the Court, held at page 163: 

'If the prosecution have information in their possession which shows that the evidence which a witness called for the prosecution has given is in flat contradiction of a previous statement which he has made and so entitles the prosecution to cross – examine, they should apply for leave to cross – examine and not leave it to the judge to do so, because it is counsel's duty to cross – examine in such circumstances. If he has not done so, the judge has to do it. That is not right because it may look as if the judge is taking sides, but he cannot help intervening in such circumstances, because it is his duty to see that the justice is done.' 

In R v Blewitt (1988) 62 ALJR 503 the High Court of Australia held: 

It is established that the calling of a witness known to be hostile for the sole purpose of getting before the Court a prior inconsistent statement which is inadmissible to prove facts against the defendant is improper and might well give rise to a miscarriage of justice. 

See also: John Jaminan v The State (No. 2) [1983] PNGLR 318 at page 321; R v Hall [1986] 1 QdR 462 & Sekhon (1992) 63 ACrimR 349. 

In R v Mills & Poole [1998] 1 CrAppR 43 [[1998] AC 382; [1997] 3 WLR 458; [1997] 3 AllER 298] the House of Lords examined the prosecution duty of disclosure of the statements of prosecution witnesses who are regarded as unreliable and whom the prosecution do not intend to call. 

Lord Hope of Craighead, with whom the other Lordships concurred, stated at pages 53 – 65: 

'The point of law of general public importance certified by the Court of Appeal was as follows: 

"Where prosecuting counsel has reasonably decided that the maker of the statement is not a witness of truth and will seek to depart from or contrive an explanation for that statement if the witness is called, is the prosecution's duty limited to furnishing the name and address of the witness only, or must counsel provide copies of the statement to the defence?" 

[…] I am of the opinion that in the circumstances specified in the certified question the answer to it should be that it is the duty of prosecuting counsel to provide a copy of the statement of the witness to the defence and that the duty is not limited to furnishing only the name and address of the witness.'

 Refer also to the law relating to the 'Disclosure Of Prosecution Evidence To The Defence Generally' commencing on page 134. 

[11.10.7] Weight To Be Attached 

In R v Michael Talu (Unrep. Criminal Case No. 21 of 2000) Palmer J stated at page 6: 

'Under cross – examination, it was put to this witness if he had made any prior inconsistent statement to the Police about the crucial events that night and to provide any explanations. No satisfactory explanation however could be provided by this witness other than to say the what he had said in Court was the truth. The effect of this merely goes to credibility.' 

In R v Derby Magistrates' Court, Ex parte B & Same v Same, Ex parte Same [1996] 1 CrAppR 385 [[1995] 3 WLR 681; [1995] AC 487; [1995] 4 AllER 526] Lord Taylor CJ, with whom the other members of the House of Lords concurred, stated at page 392: 

'It is settled law and has not been disputed on this appeal, that when a previous inconsistent statement goes before the jury, it is not evidence of the truth of its contents: Birch (1924) 17 CrAppR 26. Its effect is confined to discrediting the witness generally or, if the inconsistencies relate directly to the matters in issue, to rendering unreliable the witness's sworn evidence on those matters.' (emphasis added) 

In R v Golder, Jones & Porritt (1960) 44 CrAppR 5 [[1960] 3 AllER 457; [1960] 1 WLR 1169] Lord Parker CJ, delivering the judgment of the Court, held at page 9: 

'A long line of authority has laid down the principle that while previous statements may be put to an adverse witness to destroy his credit and thus to render his evidence given at the trial negligible, they are not admissible evidence of the truth of the facts stated therein.' 

See also: R v White (1922) 17 CrAppR 60; R v Harris (1927) 20 CrAppR 144 at pages 147 – 148; R v Golder [1960] 3 AllER 457; (1961) 45 CrAppR 5 & R v Parkinson [1990] 1 QdR 382. 

[11.10.8] Re - Examination 

A witness may be declared 'hostile' during 're – examination', see R v Powell [1985] CrimLR 592. 

However, in R v White [1970] QWN 46 a witness was called by the prosecution and gave evidence which was inconsistent with the evidence she had given at the 'preliminary investigation / inquiry' with signed statements which she made to the police. The inconsistencies were apparent during 'examination – in – chief' of the witness but the prosecutor did not apply to have the witness declared 'hostile' until the conclusion of the 're – examination' of the witness. 

The Court held: 

If the prosecutor had applied to have the witness declared 'hostile' during the course of 'examination – in – chief' and had been successful, the whole tenor of the cross – examination of the witness may have been different and as a consequence the application made during the course of 're – examination' should be refused. 

The law relating to 'Re – examination Generally' is examined commencing on page 365. 

[11.10.9] Preliminary Investigations / Inquiries 

In R v Mann (1972) 56 CrAppR 750; [1972] CrimLR 704 the Court of Appeal held: 

Where a witness displays evidence of hostility during a 'Preliminary Investigation / Inquiry' there is no rule which requires the prosecution then and there to treat the witness as 'hostile'. 

The law relating to 'Preliminary Investigations / Inquiries Generally' is examined commencing on page 310.

[11.11] Refreshing Memory From Notes

[11.11.1] General Principles 

In R v Da Silva [1990] 1 AllER 29 [(1990) 90 CrAppR 233; [1990] 1 WLR 31; [1990] CrimLR 192] Stuart – Smith LJ, delivering the judgment of the Court of Appeal, stated at pages 32 – 33: 

'[I]f a witness needs to refresh his memory, there is much to be said for it being apparent to the jury that he is doing so and for the jury knowing when the statement was made. What must be avoided is a witness simply reading his statement when he has no real recollection of events: but that can be avoided by removing the statement from him once he has read it to refresh his memory. In R v Richardson [1971] 2 AllER 773 at 777, [1971] 2 QB 484 at 499 Sachs LJ continued: 

"The courts, however, must take care not to deprive themselves of new, artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow on a matter of practice the lure of the rules of logic in order to produce unreasonable results which would hinder the course of justice. Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said. But there can be no general rule (which incidentally would be unenforceable, unlike the rule as to what can be done in the witness box) that witnesses may not before trial see the statements they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed one can imagine many cases, particularly those of a complex nature, where such a rule would militate very greatly against the interests of justice." 

The Court is concerned to see that the truth emerges so that justice can be done. The Court in R v Richardson [1971] 2 AllER 773 at 777, [1971] 2 QB 484 at 489 approved two observations of the Supreme Court of Hong Kong in Lau Pak Ngam v R [1966] CrimLR 443 at 444:

"Testimony in the witness box becomes more of a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question … Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses." 

In our judgment, therefore, it should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided he is satisfied 

(1) that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place, 

(2) that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it, 

(3) that he had not read the statement before coming into the witness box, and 

(4) that he wished to have an opportunity to read the statement before he continued to give evidence.' (emphasis added) 

The Divisional Court in R v South Ribble Magistrates' Court, Ex parte Cochrane [1996] 2 CrAppR 544 held that in the interests of justice and fairness, a witness should be permitted to refresh his/her memory from notes not made contemporaneously. However, such leave should only be granted in appropriate circumstances. 

A witness who has 'forgotten' what had occurred, may refresh his/her memory from notes, provided the notes accurately depict what occurred and at the time of writing the witness was satisfied with its accuracy, see R v Bryant & Dickson (1946) 31 CrAppR 146. 

It is irrelevant who wrote the notes, the issue is whether the witness had read the notes when the facts were fresh in his/her memory and agreed with the content of the notes as being accurate, see R v Richardson [1971] 2 QB 484; (1971) 55 CrAppR 244; [1972] 2 WLR 889; [1971] 2 AllER 773; Lau Pak Ngam v R [1966] CrimLR 443; R v Keeley (1982) 74 CrAppR 213 & R v Mills & Rose [1962] 1 WLR 1152; [1962] 3 AllER 298; (1962) 46 CrAppR 336. 

If the original notes have been lost or destroyed, a copy provided it is accurate, may be used to refresh the memory of a witness, see R v Chang (1976) 63 CrAppR 20. 

Those principles apply equally to all witnesses, including the defendant. 

A tape recorder may be used to refresh memory, see R v Mills & Rose [1962] 3 AllER 298; [1962] 1 WLR 1152; (1962) 46 CrAppR 336. 

Arresting / Investigating Officers should maintain an up – to – date record of their investigations in the respective 'Diary of Action Taken' and may refer to such notes for the purpose of 'refreshing memory' in the court provided they satisfy the criteria as enunciated in R v Da Silva (supra). 

The practice of police officers collaborating in the making of notes is permissible, see R v Bass [1953] 1 QB 680; [1953] 2 WLR 825; [1953] 1 AllER 1064; (1953) 37 CrAppR 51. 

The prosecution can not seek to have the notes tendered as an 'exhibit', unless: 

[i] the defence strays beyond that part of the notes used by a witness to refresh memory, after being granted leave of the Court to examine the notes, the law relating to which is examined commencing on page 297; 

[ii] the defence calls for the notes which have not been used to refresh the memory of a witness, the law relating to which is examined commencing on page 297; or 

[iii] the defendant acknowledges the truth as what is contained in the notes by adopting them, see R v Cross (1990) 91 CrAppR 115; R v Gillespie & Simpson (1967) 51 CrAppR 172; [1967] CrimLR 238 & R v Cooper (WJ) (1986) 82 CrAppR 74; [1985] CrimLR 592. 

Refer also to the law relating to the 'Adoption Of Caution Statements' which is examined on page 230. 

Otherwise, the notes are simply a means of refreshing memory and can not be tendered as an exhibit, see R v Britton [1987] 1 WLR 539; (1987) 85 CrAppR 14; [1987] 2 AllER 412; [1987] CrimLR 490; R v Dillon (1987) 85 CrAppR 27; R v Sekhon (1987) 85 CrAppR 19; [1987] CrimLR 693 & R v Fenlon (1980) 71 CrAppR 307; [1980] CrimLR 573. 

The prosecution should advise the defence if any witness has refreshed his/her memory from his/her statement prior to court, as it may be an issue in the determination as to what 'weight' the evidence of that witness is given by the Court, see R v Westwell [1976] 2 AllER 812; (1976) 62 CrAppR 251; [1976] CrimLR 441. 

Tape – recordings may be used to 'refresh memory', see R v Mills & Rose [1962] 1 WLR 1152; [1962] 3 AllER 298; (1962) 46 CrAppR 336. However, a transcript of the conversation is not evidence but simply an aid to the court as a record of the conversation, see R v Ali & Hussain [1965] 3 WLR 229; [1965] 2 AllER 464; [1966] 1 QB 688; (1965) 49 CrAppR 230. 

See also: Worley v Bentley [1976] 2 AllER 449; (1976) 62 CrAppR 239; R v Virgo (1978) 67 CrAppR 323; [1978] CrimLR 557; Heatherington v Brooks [1963] SASR 321; Woodcock v Nichol [1976] 13 ALR 411 & Guy & Finger v R [1978] WAR 125. 

[11.11.2] Production To Defence 

In R v Britton (1987) 85 CrAppR 14 [[1987] 1 WLR 539; [1987] 2 AllER 412; [1987] CrimLR 490] Lord Lane CJ, delivering the judgment of the Court, held at page 18: 

'It is to be observed that in Cross on Evidence (6th ed., 1985) at pp. 254 – 355 the following passage appears: 

"There is an old general rule, inadequately explored in the modern authorities, that, if a party calls for and inspects a document held by the other party, he is bound to put it in evidence if required to do so. But, [… if] a witness refreshes his memory concerning a date or an address by referring to a diary, he may be cross – examined about the terms or form of the entries used to refresh his memory without there being any question of the right of the party calling him to insist that the diary should become evidence in the case. On the other hand, if the witness is cross – examined about other parts of the diary, the party calling him may insist on its being treated as evidence in the case." 

We respectfully adopt that passage.'  

Therefore, if: 

[i] if the defence calls for the production of notes which had not been used to refresh memory of a prosecution witness in order to inspect them, or 

[i] after a prosecution witness has been granted leave to refer to his/her notes the defence inspects the contents of any notes not used by that witness to refresh his/her memory, 

the defence may be bound by the prosecution to tender those notes as an 'exhibit'. 

The Court was not referring to the admissibility of 'Confessional Evidence' which is examined commencing on page 211. 

[11.11.3] Application To Refresh Memory From Notes 

All police officers should use the following application to apply to a Court to use notes to refresh their memory: 

'Your [Worship / Lordship], I have some further recollection of what happened and the conversations which I had in relation to the matter before the court. I recorded my recollection on [ie. describe the type of notes] approximately [how long after the incident were the notes recorded] after the incident. To refresh my memory and for the purpose of accuracy I seek the permission of the Court to refer to those notes.' 

[11.12] Accomplices 

[11.12.1] Introduction

 An 'accomplice' is a person who can be prosecuted: 

[i] for actually committing an offence; or 

[ii] for being a 'party' to an offence within the meaning of section 21 of the Penal Code (Ch. 26); or 

[iii] for being an 'Accessory After The Fact' to an offence within the meaning of section 387 of the Penal Code (Ch. 26).

In that regard, the law relating to 'Parties To Offences' is examined commencing on page 406. 

The following principles relate to 'accomplices' giving evidence for the prosecution: 

[i] There is a rule of practice, which now has the force of a rule of law, that although a conviction may be founded on the evidence of an 'accomplice', it is dangerous to do so unless it is corroborated, as commented by Connolly P in Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R (Unrep. Criminal Appeal Nos. 3 & 4 of 1988) at page 5. See also: Director of Public Prosecutions v Kilbourne (1973) 57 CrAppR 381; [1973] 2 WLR 254; [1973] AC 729; [1973] 1 AllER 440; [1973] CrimLR 235; 

[ii] The evidence of one 'accomplice' can corroborate the evidence of another, see R v Cheema [1994] 1 AllER 639; (1994) 98 CrAppR 195 [[1994] WLR 147] at pages 649 and 204 respectively; 

[iii] An 'accomplice' should only be called as a witness for the prosecution if: 

[a] he/she has been charged, but not necessarily sentenced, see R v Palmer (1994) 99 CrAppR 83; [1994] CrimLR 122. 

An 'accomplice' who is called as a witness for the prosecution and does not adhere to the account put forward on his/her behalf by way of mitigation when sentenced can not be resentenced for the offence/s, see Adifaka v Director of Public Prosecutions [1984] SILR 44; Director of Public Prosecutions v Kolikisi [1985 – 86] SILR 150 & Stone v R [1970] 2 AllER 594; [1970] 1 WLR 1112; (1970) 54 CrAppR 364. Therefore the best practice is to arrange for the sentencing of a accomplice, after he/she has given evidence for the prosecution, see R v Palmer (1994) 99 CrAppR 83; [1994] CrimLR 122. 

The law in relation to 'Sentencing' is examined commencing on page 918.

 or 

[b] the prosecution has given an undertaking that he/she will not be prosecuted for the offence in question, see R v Austin Yam (Unrep. Criminal Appeal Case No. 33 of 1994; Palmer J); R v Grant [1944] 2 AllER 311; (1945) 30 CrAppR 99; R v Pipe (1967) 51 CrAppR 17; [1967] CrimLR 42 & R v Payne [1950] 1 AllER 102; (1950) 34 CrAppR 43; and 

[iv] The Court should specify what evidence it is relying on as corroborative evidence, see R v Goddard & Goddard (1962) 46 CrAppR 456. 

Unless there is evidence to the proof of the commission of the offence it does not amount to corroboration of the evidence of an accomplice, see R v Henry Everest (a) (1909) 2 CrAppR 130 at page 132. 

A co – defendant who has been discharged at the close of the prosecution case may be called to give evidence by a co – defendant, see R v Conti (1974) 58 CrAppR 387 [[1974] CrimLR 247] at page 393.

[11.12.2] General Principles 

In R v Austin Yam (Unrep. Criminal Appeal Case No. 33 of 1994) Palmer J stated at pages 2 – 7: 

'Grounds (i) and (ii) are linked because if it is accepted that the prosecution witness, Peter Tahunimae, is an accomplice and that there was a powerful and obvious inducement to ingratiate himself with the prosecution and the Court, and that it is accepted that he is a self – confessed forger, then it would follow that unless prosecution has undertaken not to proceed against him or, if he had already been convicted and sentenced by a court, he should not have been called by the prosecution as a witness. 

The starting point therefore is, is Peter Tahunimae an accomplice? And in order to answer that, the question what is an accomplice would have to be answered first. 

The learned author in Halsburys Laws of England, 4th Edition at paragraph 457, stated: "… persons are accomplices if they are participants in the offence charged, whether as principals, procurers, aiders or abettors." 

The classic definition is contained in the case of Davies v Director of Public Prosecutions (1954) 1 AllER 507 at 513, HL, per Lord Simmons LC,: 

"There is in the authorities no formal definition of the term 'accomplice', and your lordships are forced to deduce a meaning for the word from the cases in which X, Y, and Z have been held to be, or held liable to be treated as accomplices. On the cases it would appear that the following persons, have been treated within the category:- (i) On any view, persons who are particeps criminis in respect of the actual crime charged whether as principals or accomplices before or after the fact (in felonies) or persons committing, procuring or aiding and abetting in the case of misdemeanours. This is surely the natural and primary meaning of the term 'accomplice'." 

This definition is referred to in an article by J.L.I.J. Edwards, "Accomplices in crime" page 324, at pages 332 and 333. The learned author also explained why the evidence of an accomplice should be treated differently. At the bottom of page 332 and top of page 333, he states: 

"Once it is established that the person who turns Queens evidence was himself involved with the prisoner in committing the actual crime charged his motives are naturally suspect, and this leads to his testimony being treated with suspicion and caution. Knowing all the circumstances of the crime, the accomplice is in a position whereby he can, with little difficulty, make convincing false charges against the prisoner. It is difficult enough to determine whether a witness is telling the truth or lying, but the need for caution is greater than usual in the case of a witness who was 'in on the crime' and then decides to turn against his former confederate." 

There are also several cases in Australia which considered the definition of the term 'accomplice'. In R v Webbe & Brown (1926) SASR 108 at 111, 112, the Court said: 

"As to what an accomplice is, there is a singular dearth of legal authority. Foster describes him as any particeps criminis (Crown Law, p341, cited by Poole J in R v Young (1923) SASR 35 at 69). The definition given in the Century Dictionary is "any participator in an offence whether as principal or as accessory", and in the Encyclopaedia Britannica, "one who is associated with another or others in the commission of a crime, whether as principal or accessory". Either of these definitions is, we think, sufficient." 

In R v Cramp (1880) 14 Cox CC 390, the following was said: 

"A person is an accomplice in the crime charged if he took part in its commission, and was privy to the criminal intent of the thing done." 

[…] 

I am satisfied on the evidence before the Magistrate's Court that Peter Tahunimae was an accomplice in the true sense of the word. 

There is one clear distinction that needs to be noted. This witness is not a co – defendant in the proceedings before the court, and neither had he been charged separately. 

The question that arises then is whether, this is fatal to the rule of practice described in the two texts referred to by learned Counsel for the Appellant. 

In the first text referred to, Blackstones Criminal Practice, 1933 Edition, at page 1790,: 

"An accomplice against whom proceedings are pending but who is not an accused in the proceedings in which the prosecution seek to call him, should only be called by the prosecution if they have undertaken to discontinue the proceedings against him. This appears to be a rule of practice rather than of law." 

The second text referred to was Phipson on Evidence, 14th Edition, at paragraph 9 – 22,: 

"It seems that any person jointly charged with the accused in incompetent to give evidence against him in committal proceedings, but the fact that he has been so called will not make the committal bad. To render co – defendants competent to be called by the prosecution, such co – defendants must have been acquitted, or have obtained a nolle prosequi, or have pleaded guilty, or must be tried separately. There is however a rule of practice, breach of which will lead to a conviction being quashed on appeal, that an accomplice who has been charged either jointly in the indictment with the defendant, or in the same indictment although not under a joint charge, or had been charged and not yet indicted [and semble if separately indicted) shall not be called by the prosecution unless he has pleaded guilty or no evidence is offered against him or a nolle prosequi has been entered in his case." 

Both quotations referred to the case of a co – defendant, or an accomplice who had been duly arraigned. The rationale behind that rule of practice is that there is an obvious and powerful inducement for such accomplice to ingratiate himself with the prosecution and the court, and that the existence of such inducement made it desirable in the interest of justice to exclude such persons from being called by the prosecution. 

[…] 

It is my respectful view that an accomplice in such a position as Peter Tahunimae should not have been called as a witness, unless some form of undertaking from criminal prosecution is provided by the police. Peter Tahunimae's position is no different from an accomplice who had been charged with the same offence and where no immunity had been given, or had not been convicted and sentenced by a court. 

The test that should be applied is whether there is in existence an obvious and powerful inducement for such a person to ingratiate himself with the prosecution, and the court. In other words, is there a real possibility that such an inducement exists? 

[…] 

The rule of practice in my view should be extended to include accomplices who have not been charged, and that they should only be called after a clear undertaking had been provided to that witness that he would not be indicted for the offence in which he had been asked to give evidence in. This course of action should remove the threat of the existence of an obvious and powerful inducement for such an accomplice to ingratiate himself with the prosecution and the court. That however, does not remove the requirement that such accomplice's evidence should be treated with caution, and that the courts bear in mind the dangers of convicting on uncorroborated evidence.' (emphasis added) 

In R v Palmer (1994) 99 CrAppR 83 [[1994] CrimLR 122] the Court of Appeal examined the law relating to the prosecution calling 'accomplices'. Russell LJ, on behalf of the Court, stated at pages 85 – 86: 

'The point is taken that it was improper of the Crown to call Thompson at the committal stage of the proceedings, or indeed at any later stage of the proceedings, without Thompson having been sentenced for his part in what took place. Mr. Coode directed out attention to two authorities: Pipe (1967) 51 CrAppR 17 and Payne (1950) 34 CrAppR 43; [1950] 1 AllER 102. Both of those authorities, which are now over 20 or 30 years ago, give some support to the proposition that in the ordinary course of events a defendant should be sentenced if he is an accomplice before being called to give evidence for the Crown. Mr. Coode readily acknowledges that with the passage of the years that practice has been very much modified, and certainly in the experience of all three members of this Court, in the 1980's and 1990's the practice has been generally not to sentence an accomplice until the conclusion of all the proceedings in the case. By that process the judge can get the flavour of the case and look at it in the round at the conclusion of all the evidence, including in some cases the defendant's evidence as well as witnesses called on behalf of the prosecution. 

We emphasise in this case that the committal proceedings of the appellant and of Thompson were entirely separate. Quite clearly, if two men are charged and it is sought to commit them together as co – defendants, it would be irregular to bring one down from the dock into the witness box to give evidence on behalf of the Crown against the other. That proposition was borne out by Grant (1944) 30 CrAppR 99; [1944] 2 AllER 311. Such was not the case here. We repeat there were separate committal proceedings and, in our judgment, the Crown were perfectly entitled before sentence had been passed upon Thompson to call him in the committal proceedings. […] 

Should Thompson have been sentenced before giving evidence at the Crown Court? That is purely a matter for the discretion of the trial judge. We would not ordinarily interfere in that exercise. In this case we go further and express the view that it was manifestly right for the learned judge to adopt the course that he did and to hear the case out before sentencing, first, this appellant after his trial, and then Thompson at the conclusion of the trial in the way that he did. Thompson earned a very substantial discount for the fact that he had co – operated with the authorities and given evidence in the way we have described.' (emphasis added) 

In Adifaka v Director of Public Prosecutions [1984] SILR 44 White ACJ stated at page 46: 

'Mr Brown then raised a point which is not included in the points of appeal but which I shall deal with as a relevant preliminary matter. He submitted that the learned Magistrate erred in warning Sifonabo, when he gave evidence in direct conflict with his statement to the police, which was the basis of his plea of guilty and conviction and sentence, that his sentence could be increased on appeal. Mr. Brown said, that he had found no authority on the point. 

For completeness, some guidance on the subject is to be found in R v Stone (1970) 54 CrAppR 364, referred to in Archbold 40 Ed. para 401 a. It is stated on the authority of that case that a judge should never bring back an accused in order to increase his sentence where, in giving evidence against a co – accused after being sentenced originally, he fails to adhere to the account put forward on his behalf by way of mitigation and in effect changes his evidence.' (emphasis added) 

Accomplices may be cross – examined as to credit, see R v Hughes (1933) 24 CrAppR 52. 

As regards an accomplice who has received an immunity from prosecution, see Mc Donald v R (1983) 77 CrAppR 196. 

See also: Director of Public Prosecutions v Kolikisi [1985 – 86] SILR 150; R v Anthony Bara (Unrep. Criminal Case No. 13 of 1991; Ward CJ; at page 5); Taylor & Goodman [1999] 2 CrAppR 163; Chan Wai - Keung v R [1995] 2 AllER 438; [1995] 1 WLR 251; [1995] 2 CrAppR 194; R v Beck [1982] 1 AllER 807; (1982) 74 CrAppR 221; [1982] 1 WLR 461; [1982] CrimLR 586; R v Governor of Pentonville Prison, Ex parte Schneider (1981) 73 CrAppR 200; R v Weekes & others (1984) 74 CrAppR 161; The State v Amoko – Amoko [1981] PNGLR 373; The State v Titeva Fineko [1978] PNGLR 262 at page 263; R v Smith (1925) 18 CrAppR 19 at page 20; R v Feigenbuum [1919] 1 KB 431; (1919) 13 CrAppR 214; R v Barrett (1908) 1 CrAppR 64; R v Christie (1914) 10 CrAppR 141 at page 156; R v Royce – Bentley (1974) 59 CrAppR 51; R v Thorpe & others (1978) 66 CrAppR 6; R v Charavanmuttu (1930) 22 CrAppR 1 & R v Andrews [1987] 1 QdR 21 at page 32. 

Once called an 'accomplice' is like any other witness called by the prosecution, and therefore, the law relating to 'Hostile Witnesses' applies.

The law relating to: 

·                     'Evidence Of Co – Defendants' is examined commencing on page 360; and 

·                     'Hostile Witnesses' is examined commencing on page 288.

[11.12.3] Need For Corroboration 

In R v Baskerville (1916) 12 CrAppR 81 [[1916] 2 KB 658] Lord Reading CJ, delivering the judgment of the Court, stated at pages 87 – 91: 

'There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. […] But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices […]. 

[…] 

The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. If the only independent evidence relates to an incident in the commission of the crime which does not connect the accused with it, or if the only independent evidence relates to the identity of the accused without connecting him with the crime, is it corroborative evidence? […] 

[…] 

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.' 

In R v Beck (1982) 74 CrAppR 221 [[1982] 1 WLR 461; [1982] 1 AllER 807; [1982] CrimLR 586] Ackner LJ, delivering the judgment of the Court, held at page 230: 

'The leading case on the subject of corroboration remains BASKERVILLE (1916) 12 CrAppR 81, 91; [1916] 2 KB 658, in which Lord Reading CJ said that it must be: "Independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms some material particular not only the evidence that the crime has been committed but also that the defendant committed it." The other case to which reference must be made is MULLINS (1848) 3 CoxCC 526 in which it was said [by Maule J in summing-up to the jury at p. 532], in our judgment correctly, that corroboration does not mean that there should be independent evidence of that which the accomplice relates, otherwise his testimony would be unnecessary, as it would merely be confirmatory of other independent testimony.' 

In Director of Public Prosecutions v Kilbourne (1973) 57 CrAppR 381 [[1973] 2 WLR 254; [1973] AC 729; [1973] 1 AllER 440; [1973] CrimLR 235] Lord Simon commented at page 420: 

'[Corroboration] is required because experience has shown that there is a real risk that an innocent person may be convicted unless certain evidence against an accused […] is confirmed by other evidence. Corroboration is therefore nothing other than evidence which "confirms" or "supports" or "strengthens" other evidence […]. It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, "supporting evidence" or "evidence which helps to determine the truth of the matter". Each is evidence which makes other evidence more probable.' [word in brackets added] 

In Attorney General of Hong Kong v Wong Muk –ping (1987) 85 CrAppR 167 [[1987] 2 AllER 488] Lord Bridge delivering the judgment of the Judicial Committee of the Privy Council, stated at page 175: 

'Where the prosecution relies on the evidence of an accomplice and where […] the independent evidence capable of providing corroboration in not of itself sufficient to establish guilt, it will have become obvious to the jury in the course of the trial that the credibility of the accomplice is at the heart of the matter and that they can only convict if they believe him. The accomplice will inevitably have been cross – examined to suggest that his evidence is untrue. The jury will have been duly warned of the danger of relying on his evidence without corroboration. Their Lordships can see no sense in the proposition that the jury should be invited, if effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration.' 

In R v Farid (1945) 30 CrAppR 168 Tucker J, delivering the judgment of the Court, stated at pages 174 – 175: 

'The rule with regard to the proper direction which should be given in cases where the prosecution are relying upon the evidence of accomplices is well known. It is a matter which was originally one of practice and has now become to all intents and purposes a matter of law. As was stated by the Lord Chief Justice (Lord Hewitt) in delivering the judgment of this Court in LEWIS (1937) 26 CrAppR 110, at p. 113: "The rule is familiar. The practice of common law is for the Judge to warn the jury that it is unsafe to convict on the uncorroborated evidence of an accomplice and to advise them not to convict, though, at the same time, he may point out that it is within their legal province to convict if they think proper. Corroborative evidence must be evidence proceeding from a quarter independent of the accomplice and tending to implicate the accused and must corroborate the accomplice's evidence in a material particular." That is the general rule, and in LEWIS (supra), this Court held that that rule was one of universal application. That means this, that it is a warning which must be given to a jury not only in cases where there is no corroboration, but in cases where there is corroboration, and in cases where the Judge may consider that there is ample corroboration.'

In R v Davies (1954) 38 CrAppR 11 [[1954] 1 AllER 507] Lord Simonds stated at page 32: 

'In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. 

[…] 

This rule, although a rule of practice, now has the force of a rule of law.'

See also: R v Howard (1921) 15 CrAppR 177 at page 180 & R v Beebe (1925) 19 CrAppR 22. 

The law relating to 'Corroboration Generally' is examined commencing on page 668. 

[11.13] Witnesses With Ulterior Motives

 The onus is on the prosecution to ensure that the Court is advised of any possible ulterior motives a witness may have for giving evidence for the prosecution, see Chan Wai - Keung v R [1995] 2 AllER 438; [1995] 1 WLR 251; [1995] 2 CrAppR 194. 

It is desirable that a witness with ulterior motives or some purpose of their own to serve in giving evidence should be treated as an accomplice, in appropriate circumstances, whether the witness can properly be classed as an accomplice or not, see R v Plater (1959) 44 CrAppR 83; [1960] 2 QB 464 & R v Whitaker (1976) 63 CrAppR 193.

[11.14] Witnesses With Criminal Histories 

If the only evidence for the prosecution is a witness with a 'criminal conviction' that may impact on the credibility of that person's evidence, a Court should be careful in convicting on such evidence, see R v Spencer; R v Smails [1986] 2 AllER 928; [1986] 3 WLR 348; [1987] AC 128. 

As regards proving a 'previous criminal conviction', section 125 of the Criminal Procedure Code (Ch. 7) states (in part): 

'(1) In any inquiry, trial or other proceeding under this Code, a previous conviction may be proved, in addition to any other mode provided by any law for the time being in force – 

(a)                by an extract certified, under the hand of the officer having the custody of the records of the court in which such conviction was had, to be a copy of the sentence or order; or 

(b) by a certificate by the officer in charge of the prison in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered; or 

(c) by production of the officer having the custody thereof of the appropriate court register recording such conviction or an extract from such register certified under the hand of such officer to be a copy thereof,

together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted. 

[…] 

(3) A previous conviction in any place outside Solomon Islands may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order, and the fingerprints, or photographs of the fingerprints of the person so convicted, together with evidence that the fingerprints of the person so convicted are those of the accused person. 

Such a certificate as aforesaid shall be prima facie evidence of all facts therein set forth without proof that the officer purporting to sign it did in fact sign it and was empowered so to do.' 

The form for a 'Certificate Of Previous Convictions' is provided for in the 'subsidiary legislation' for the Criminal Procedure Code (Ch. 7). 

The law relating to the interpretation of 'Subsidiary Legislation' is examined on page 63.

[11.16] Dangerously Ill Witnesses 

Section 225 of the Criminal Procedure Code (Ch. 7) states: 

'Whenever it appears to any Magistrate that any person dangerously ill or hurt and not likely to recover is able and willing to give material evidence relating to any offence triable by the High Court, and it shall not be practicable to take the deposition in accordance with the provisions of this Code of the person so ill or hurt, such Magistrate may take in writing the statement on oath or affirmation of such person, and shall subscribe the same, and certify that it contains accurately the whole of the statement made by such person, and shall add a statement of his reason for taking the same, and of the date and place when and where the same was taken, and shall preserve such statement and file it for record.' 

Section 226 of the Criminal Procedure Code (Ch. 7) states: 

'If the statement relates or is expected to relate to an offence for which any person is under a charge or committal for trial, reasonable notice of the intention to take the same shall be served upon the prosecutor and the accused person, and if the accused person is in custody he shall be brought by the person in whose charge he is, under an order in writing of the Magistrate, to the place where the statement is to be taken.' 

Section 227 of the Criminal Procedure Code (Ch. 7) states: 

'If the statement relates to an offence for which any person is then subsequently committed for trial, it shall be transmitted to the Registrar of the High Court, and a copy thereof shall be transmitted to the Director of Public Prosecutions.' 

Section 228 of the Criminal Procedure Code (Ch. 7) states:

 'Such statement so taken may afterwards be used in evidence on the trial of any person accused of an offence to which the same relates, if the person who made the statement be dead, or if the court is satisfied that for any sufficient cause his attendance cannot be procured, and if reasonable notice of the intention to take such statement was served upon the person (whether prosecutor or accused person) against whom it is proposed to be read in evidence, and he had or might have had, if he had chosen to be present, full opportunity of cross-examining the person making the same.' 

See: R v Thompson [1982] 2 WLR 603.

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