Report No. 69
Cross-Examination as to Credit-the Powers of the Court
In order that the right to put questions in cross-examination may not be abused, certain safeguards are needed, as we have already pointed in out1our discussion of section 146. These safeguards are provided in a number of sections. We take up the principal provision in section 148, which provides that if any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to swear and shall warn him that he is not obliged to swear it.
In exercising its discretion, the court shall have regard to the following considerations:-
(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence;
(4) The Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable.
1. See discussion as to sections 146 and 147, supra.
83.2. Markby's comment.-
Commenting on this section, Markby observed1.
"The provisions of sections 148, 153 are restricted to questions relating to facts which are relevant only in so far as they affect the credit of the witness by injuring his character: whereas some of the additional questions enumerated in section 146 do not necessarily suggest any imputation on the witness's character. Nevertheless. I think it was the intention of the Act, and I believe it to be the practice to consider all the questions covered by section 146 to be governed by the provisions of sections 148-53".
He also added2-
"Sections 148-52 were intended to protect the witness against being improperly cross-examined; a protection which is often very much required. But the protection afforded by section 148 is not very effectual, because an innocent man will always be eager to answer the question and a guilty man by claiming protection almost confesses his guilt as is indicated by the last para of the section."
1. Markby, pp. 106-107, quoted by Woodroffe.
2. Markby, pp. 146-147, quoted by Woodroffe.
83.3. In so far as the section applies to ordinary witnesses, we have no comments on it. The position of the accused as a witness, however, requires some discussion. At the time when the Act was enacted the accused was not a competent witness and the section was not framed with the accused in mind. The broad question to be decided is, should the section apply to the accused, and, if so, to what extent.
II. Special Considerations
83.4. Need to strike a balance.-
In deciding the question how far the accused should be subject to cross-examination as to character, one has to strike a very delicate balance between certain competing considerations. If the accused is given complete exemption from cross-examination as to character, he would become free to cast aspersions on the prosecution witnesses without any hindrance. He would then also be free to secure the unjust conviction of his co-accused, if there be one. On the other hand, if he is treated as liable to cross-examination on all past convictions, in order to show his lack of credit, then a possibly innocent man would be deterred from entering the witness-box and telling his own story on oath, because of the mental anguish that the unfolding of the past would cause, apart from any prejudice that might be caused in the mind of the judge.
It is for this reason that in several countries, a compromise has been effected in the legislative provisions on the subject, and, in view of the considerations mentioned above, a distinction is usually made between the position of the accused and that of the ordinary witness who is not the accused. That distinction is supportable on the ground that an ordinary witness entering the witness box is not-at that moment at least-facing trial for an offence, and there is no danger of his conviction in those proceedings.
83.5. The course adopted by legislation in several countries is usually to protect1 the accused from disclosure about his past character except in certain exceptional cases. Those exceptional cases, to put the matter broadly are postulated on the theory that the considerations of fairness require that an exception should be made, the circumstances and the conduct of the accused in regard to the prosecution being such that the other considerations favourable to the accused, which are mentioned above,2 should be over-ridden by the requirements of fairness in the peculiar circumstances.
1. Instances are cited, infra.
2. Para. 53.4, supra.
83.6. What matters is the effect of the prohibited question on the court. A veiled suggestion of a previous offence is just as damaging as a definite statement-which is the reason why the expression "tend to show" is used in some legislative precedents, on the subject.1 If the accused, by himself or his witnesses, seeks to give evidence of his own good character to show that he is unlikely to have committed the offence charged; he raises an issue as to good character, so that he may be fairly cross-examined on that issue, just as any witness called by him to prove his good character may be cross-examined.
Even where the accused has not raised a question of his own good character, the evidence falling within the rule that where issues of intention or design are involved in the charge or defence, questions relevant to these matters may be asked, would be admissible. In these cases, the consideration that the court may be prejudiced or the accused oppressed is displaced by weightier considerations, and evidence, even if it goes to his credibility, is permitted.
1. E.g. section 1, proviso (3), Criminal Evidence Act, 1898 (English).