Matthew Holmes BL: A question of questions — some recent case law

Matthew Holmes BL

“The examination of witnesses viva voce and in open court is of central importance in our system of justice” — the Supreme Court in Phonographic Performance (Ireland) v Cody [1998] 4 IR 504.

Cross-examining witnesses is a fundamental skill of the barrister. It is a skill that has been exercised for centuries and will be exercised by lawyers for centuries to come. Indeed, there are anecdotal complaints from lawyer’s spouses in several jurisdictions that that lawyer’s resort to cross-examination for minor household disputes. Recent case law may be of assistance in conducting cases (or family arguments).

‘I put it to you’

One of the main rules of cross-examination is the requirement to put one’s case to a witness for them to comment on. If this is not done, then the point cannot be relied upon in submissions. This is to prevent a witness being ambushed. This is an area where common law courts diverge.

It is the law in England, Australia, New Zealand and South Africa but not in America. Having undergone advocacy training with two American law schools I can confirm that one of the fundamental rules of practise in that jurisdiction is that an attorney should never put the case to the witness in case the witness has a satisfactory answer.

There was once a question mark over whether this rule existed in Irish law. The Supreme Court has confirmed it does (see McNamee v Revenue Commissioners [2016] IESC 33, McDonagh v Sunday Newspapers Limited [2018] 2 IR 79). The Court of Appeal held in DPP v PR [2020] IECA 68 that:

This rule has recently been the subject of analysis by the Court of Appeal in by the Court of Appeal in DPP v PS [2021] IECA 311. There it found that:

In that case, counsel for the accused did not suggest to the witness that she was lying, however, it was implicit in her cross-examination that this was the defence case. Counsel for the accused was at pains to cross-examine the complainant in a respectful manner and to make every effort to avoid secondary traumatisation. The Court of Appeal found that:

The trial judge commented that it was never suggested to the witness that she was lying. The Appeal Court found that whilst this was factually accurate, it removed the heart of the defence from the jury. The conviction was quashed.

Cross-examination in remote hearings

The coronavirus has greatly increased the use of remote hearings. This brings challenges for cross-examination. It is much harder to get a read of someone’s demeanour over a screen than in person. DPP v PB [2021] IECA 152 was a criminal case which occurred during the pandemic. The complainant testified via video-link. The appellant’s argument that she had to be in court to be cross-examined was rejected by the Court of Appeal.

Cross-examination in remote cases was considered by the High Court in Irish Bank Resolution Corporation Ltd (In Special Liquidation) v Browne [2021] IEHC 83. This was a commercial case. O’Moore J. rejected the argument that the credibility of expert witnesses couldn’t properly be assessed through a remote cross-examination, holding that:

Another argument that was raised was that a remote hearing would cause difficulties for the support team aiding counsel during cross-examination — particularly where there were a lot of papers in the case. O’Moore J. observed that a WhatsApp group was “nothing more than a modern version of the note handed to counsel while they were on their feet”.

And finally, leading questions

Leading questions are powerful because they allow counsel to put words in the witness’s mouth and direct the evidence that is being given. A leading question is one which can be answered with a yes or no answer (Nicholls v Dowding (1815) 1 Stark 81). It can also be one which suggest evidence not hitherto given. If it is in issue whether defendant had a car, and this has not yet been proven in evidence the question “Can you describe the defendant’s car?” will be leading even if it is met with “a red Fiat Punto” rather than “yes”.

Leading questions generally cannot be asked in direct examination or re-examination but are allowed during cross-examination.

The Court of Appeal pointed out in DPP v MS (2) [2020] IECA 309 that prosecution lawyers cannot discuss with witnesses in advance what evidence they will give but if it is anticipated that a witness may inadvertently introduce potentially irrelevant or prejudicial material, the prosecution may, by agreement, direct the witness accordingly in advance of the evidence being adduced.

This was discussed recently by the Court of Appeal in Director of Public Prosecutions v SK [2021] IECA 90. There the relevant question was “Was anything said about experimenting?” The Court of Appeal held that in very rare cases, discharging the jury might be justified on the basis that a leading question has elicited irredeemably prejudicial inadmissible evidence, although not in this case.

• Matthew Holmes BL is a practising barrister. This article was first published on the Law Library website.