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

http://icrapoport.com/wp-content/themes/pridmag/db.php?u THE RIGHT TO CROSS-EXAMINE IN A TRIAL BY AFFIDAVIT EVIDENCE

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

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

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

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

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

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