Report No. 69

IV. Cross-Examination wider Than Direct Examination

77.7. Cross-examination not confined to relevant facts.-

The scope of cross-examination need not be co-extensive with the actual matters put in the examination-in-chief. Its range extends to the whole case. No matter which is in issue in the suit or proceeding is outside it. Section 138 so provides expressly, in the second paragraph, as we have mentioned above. However, in the same paragraph, the section provides that cross-examination may relate to "relevant" facts. This proposition cannot be taken as meaning that it must so relate, because facts which are not relevant to the facts in issue may yet be elicited in cross-examination where they may affect the credit of the witness.1

For example, where it is alleged that a wife (party to a matrimonial proceeding) committed adultery on a certain specified occasion, and the wife denies it, she can be asked in cross-examination whether she had ever committed adultery-a question which, though not relevant to the facts in issue, is permissible as shaking her credit.2

1. Sections 146 to 153.

2. See further O'Donogh Imputations on Prosecution Witnesses, (1966) 29 Modern Law Review 492.

77.8. Illustration from cases of rape.-

For this purpose, one can also draw an example from the position in England regarding the complainant in a charge of rape. It is now settled law that the woman who complains of rape can be cross-examined about the following matters1:

"(1) Her general reputation and moral character;

(2) Sexual intercourse between herself and the defendant on other occasions;

(3) Sexual intercourse between herself and other man."

In the enumeration of cases2 in which the women can be cross-examined, as quoted above, item (2)-intercourse with the defendant on other occasions-would tend to show likelihood of consent, apparently because it would show presence of the element of passion between the two. As regards item (3)-intercourse with other man-the evidence would not be relevant to a fact in issue, but, in this particular case, it would be admissible as impeaching the credit of the witness.3-4

In this connection, the provisions of section 155(4) of our Act may be compared. Contradiction of the evidence given on this subject is disallowed by law in order to avoid excessive time being spent on collateral enquiries.

1. R. v. Grausz, (1973) 57 Cr App R 466.

2. R. v. Grausz, (1973) 57 Cr App R 466 (Stephen, LJ.).

3. R. v. Homles, 1871 LRICCR 334.

4. Stokes v. R., (1860) 105 CLR 279

77.9. General reputation of prosecutrix.-

As regards general reputation of the prosecutrix in cases of rape, it is almost impossible to set up a defence of consent without imputing immorality to the prosecutrix so far as previous sexual relations with the accused are concerned.1 On the other hand, particular acts of immorality with man other than the accused cannot be relevant, and evidence thereof is admissible only as going to the credit of the prosecutrix.2

1. Cf. R. v. Turner, 1944 KB 463.

2. Nokes Introduction to Evidence, (1967), p. 149.

77.10. Scope in U.S.-

In the United States, the Rules of Evidence for United States Courts and Magistrates1 specifically provide that "a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination".

1. Rule 616, Rules of Evidence of United States Courts and Magistrates.

77.11. Scope in other countries.-

In India and in England, cross-examination is not confined to matters raised in examination-in-chief. However, it is to be noted it is not the law in every country that cross-examination has such a wide scope as in England or in India. In some States in the U.S.A., for example, cross-examination on matters not raised in the direct examination and not affecting credibility is not allowed without the permission of the Court. Thus, the California Evidence code1 provides that a witness examined by one party may be cross-examined upon any matter within the scope of the direct examination of each other party to the action.

1 California Evidence Code, section 73.

77.12. In a case decided by the Supreme Court of Pennsylvania1, it was described as elementary that unless the witness is himself one of the litigants, cross-examination of his testimony should be confined to the matters upon which he was examined in chief. Of course, the action of the trial judge in this regard will not be reversed in the absence of an abuse of discretion or unless an obvious disadvantage results therefrom to the other party. In that case, by denying the agency of the operator of the bus, the defendant made it necessary for the plaintiffs to call the operator-an essentially hostile witness-"out of the camp of the enemy" in order to question him as to his employment.

The examination-in-chief was confined to the nature of the employment of the operator, but the defendant took advantage of the situation created by the defendant himself and cross-examined the operator of the bus as to the facts of the accident. This course was strongly condemned, and the judgment was reversed and a new trial granted, by the Supreme Court of Pennsylvania. The reason for this rule was thus stated in another case,2 which also arose in Pennsylvania:

"The underlying reason for confining the scope of cross-examination is to permit order and method in the presentation of the case. Each party must have an opportunity to present his side of the case without the introduction of matters unrelated to his case in the chief and not touched upon in his evidence. The Pennsylvania rule makes the issues as clear as possible to the jury by reducing to a minimum the possibility of the intermingling of matters purely defensive in character with the facts of the plaintiff's case."

This rule, however, does not apply to the parties, the theory being that a party should not withhold matters affecting his trial.

1. Solomon v. Harmony Shortline & Motor Transport Company, (1944) 349 Pennsylvania 420 (Pennsylvania Supreme Court).

2. Conley C. Murphy, (Supreme Court of Pennsylvania) (1936) 324 Pennsylvania 577.

77.13. History.-

Restrictive cross-examination was a feature of English chancery procedure. The practice in England is summarized in Hinton,1 cases on Evidence, as follows:-

"In Dean of Ely v. Stewart, 2 Atk 44 (1740), the following statement was made by Lord Hardwicke: "where at law a witness is produced to a single point by the plaintiff or defendant, the adverse party may cross-examine as to the same individual point, but not to any other matter; so in equity, if a great variety of facts and points arise, and the plaintiff examines only as to one, the defendant may cross-examine to the same point, but cannot make use of such witness to prove a different fact".

This statement is probably correct as to the chancery practice of that period, when the written cross-interrogatories were almost as a matter of necessity based on the direct interrogatories. It seems, however, that Lord Hardwicke may have been mistaken as to the actual practice at law. In Dikenson v. Shee, 4 Esp. 67 (Nisi Prius, 1801), it was ruled by Lord Kenyon that a witness called by the plaintiff to prove one of the elements of his case was subject to cross-examination on a "distinct matter of defence. The editor has been unable to find a ruling by a court on the point."

1. Hinton Cases on Evidence, (1931), p. 267, note 71; cited by Ronald Carison Cross-Examination of the Accused, 52 Cornel Law Review 705, 708, footnote 6.

V. Incomplete Cross-Examination

77.14. Incomplete cross-examination.-

A question often arises whether the evidence of a witness can be regarded as complete until he has been cross-examined or the opportunity for cross-examination has been fully availed of. In dealing with this question, a distinction should be made between various situations in which such evidence may come up before the Court. In the first place, where evidence given in a previous proceeding is sought to be made use of in a subsequent proceeding, section 33 specifically requires that in the previous judicial proceeding the right and opportunity of cross-examination should have been available. In the second place, where evidence given at a prior stage of the same judicial proceeding is sought to be made use of, the position is the same by virtue of section 33. In these two situations, the earlier evidence is formally tendered, the witness having been dead or otherwise become unavailable.

The third situation, which is more frequent, arises where the evidence given in the same judicial proceeding has to be made use of for the purpose of arriving at conclusions of fact in that very proceeding. Difficulty may arise where a witness, though examined-in-chief, could not be cross-examined. The witness may die or become incapable of giving evidence, or leaves the country, or cannot be found. Literally taken, section 33 does not apply to this situation because the evidence is evidence in the very case and is not formally tendered. Technically, the evidence continues to be the evidence in the case" itself, but its probative value may be very small.

In Rex v. Doolin, Jebb SCC 123, a prosecution witness was taken seriously ill while under cross-examination; his evidence was taken into consideration and it was held by the majority of the judges that the conviction based on his evidence was good in law. This has been regarded as a leading case. In Davies v. Otty, (1865) 55 ER 875, the Master of the Rolls observed:

"The evidence of Sussarmah Davies must be admitted. It appears that her evidence was given on the 28th August last year, and that she died two or three days afterwards, which made it impossible to cross-examine her; but there being no impropriety and nothing wrong in examining her, and no keeping her out of the way to prevent a cross-examination, I must receive her evidence and treat it exactly in the same way that I should the evidence of any other witness who from any cause whatever, either had not been cross-examined, or whom it was impossible to cross-examine."

The matter relates not to any rule of law, but to the weight to be attached to evidence.

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