Witness testimony — A memory test or a test of credibility?
Is it time for legislative action?
— SR Balgopal
In many criminal cases in Mauritius, there is a considerable delay between the occurrence of the act which gave rise to the criminal offence and the time the Accused is brought for trial. In the cases where the Accused is brought to trial in a timely manner, then there is the possibility that delays are caused because counsel’s motions for postponements are acceded to so that a person who is a material witness in a criminal trial only gives evidence some years after the alleged criminal offence took place.
It is against this background that the case of Saman v The State 2004 SCJ 3 has to be welcomed. It is unfortunate that this case has not received the attention that it deserves as it is, no doubt, a fine example of where the Supreme Court has had to step in to give guidance in the teeth of a legal vacuum pertaining to the situation of witnesses who give their testimony in Court years after the event giving rise to the prosecution, thereby leaving the door open for the defence to cross-examine them in detail on statements given years earlier with the inevitable conclusion that the defence may elicit several inconsistencies.
In Saman v The State, the Supreme Court held as follows:
“Inconsistencies are often understandable and are likely to occur when, for example, the testimony is given in Court long after the event, or for that matter the witness is a young person who may be shy or overpowered by strange Court surroundings or by the delicate nature of the testimony itself.
“Inconsistencies must therefore be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness. Not every inconsistency is serious and material and inconsistencies need not affect per se the appreciation by a trial Court that a particular witness’s testimony is true.”
There is the possibility, in Mauritian law, to refresh the failing memory of a witness in Court with the leave of the Court. However, when most of us do not remember what we had for dinner last Friday, we expect witnesses in criminal cases, sometimes vulnerable witnesses such as child victims and victims of harrowing crimes such as rape, to recall, in detail, events which occurred a few years ago. Should these witnesses not recall what occurred, the Court may give the prosecution leave to refresh their memory with the consequence that the witness will be allowed to see her statement and answers to questions put to her. This is not without legal consequences as the defence will be entitled to submit that the witness could barely recall what happened and could only answer because she had an opportunity to read her statement after her memory was refreshed a number of times to the extent that the witness cannot, by any stretch of the imagination, be relied upon as a witness of truth.
This situation calls for legislative intervention as victims of crimes or witnesses cannot be made to pay for systemic delays in bringing cases to trial and the delays associated with the numerous postponements which are more often than not associated with criminal trials.
In the UK, the Crime Prosecution Service (CPS) which was set up in 1986, is committed to the “the proper care and treatment of witnesses as set out in the Core Quality Standards (‘CQS’), particularly Standard 7.” The position in the UK with regards to witnesses having access to their statements prior to trial is as follows:
“A witness is not entitled as of right to see his or her statement or to be sent a copy of it before the day of trial. However, as part of the duty of the CPS to ensure that we present our cases fairly and firmly prosecutors should show witnesses, or arrange for a representative of the Witness Service to show them, their witness statements so that they can refresh their memories before giving evidence.”
In addition, UK case law on access to witness statements is very neatly summed up on the CPS website as follows:
“There is no general rule that witnesses cannot, before a trial, see their statements.
In R v Richardson (D)  2 Q.B. 484, 55 Cr. App. R. 244, Worley v Bentley (1976) 62 Cr App R 239 and R v Westwell (1976) 62 Cr App R 251, the courts approved the practice of providing statements to witnesses prior to trial. The Court of Appeal stated in Richardson:
‘… in most cases and particularly where, as often happens, there is a long interval between the alleged offence and the trial, the interests of justice are likely to be best served and witnesses will be more fairly treated if, before giving evidence, they are allowed to refresh their recollection by reference to their own statement… As was said in Supreme Court of Hong Kong in Lau Pak Ngam v R  Crim.L.R. 443, … if a witness is deprived of this opportunity his testimony in the witness box becomes more a test of memory than truthfulness…”
It is desirable, although not essential, that the defence are informed that witnesses have seen their statements prior to giving evidence.
However, if a witness is handed his/her statement some time before the hearing (rather than at the door of the court), it becomes imperative that the defence are told of this fact as it goes to the weight that can properly be attached to that witness’s evidence (per Bridge L.J. in R v Westwell). The following issues could be raised in such circumstances:
- There is a risk of collusion between witnesses;
- A witness who has made a false statement may try to ensure his or her evidence in court is consistent with the false statement;
- Witnesses may try and “learn” the contents of their statements and create a false impression of their credibility;
- The statement may be lost or fall into the wrong hands;
- The defence may undermine credibility of the witness by cross-examining on the basis that one or more of these dangers have arisen.
Accordingly, witnesses should not be handed copies of their statements days or weeks before the trial begins.
Statements should not be handed to several witnesses in circumstances that enables one to compare with another what each has said – R v Richardson (D)  2 QB 484.
Usually, a request for a copy of a statement can be met by allowing access and a sight of the statement rather than giving the witness a copy, although in a case where the statement is long or complex supplying a copy may be unavoidable.
A prosecutor can deny a witness a copy of his or her statement if there are grounds to believe the request is made other than with the desire to give evidence honestly and accurately. For example, a witness may be friendly with or related to a defendant, may wish to alter his or her evidence in favour of the defendant or change it in such a way so as not to appear to be lying.
The Home Office Circular No. 82 – 1969 (“Supplies of Copies of Witnesses’ Statements”), states that the police should normally provide a witness, upon request, with a copy of his or her statement. The Circular also recognises that on occasion a chief officer may exercise discretion to refuse such a request if, for example, they believe it is for an improper purpose.”
Having seen how victims of crime may be given access to their statements in the UK, having regards to the safeguards which apply in the UK, would it not be wise for the authorities in Mauritius to draw form the experience of the UK so that victims of crime are given more support in the context of prosecutions. The rights of the accused are often invoked by defence lawyers in Court, can we anticipate that the Office of the DPP will take the cue from the CPS and come up with proposals for giving enhanced status to victims of crime who are called upon to depose in criminal trials? On this note, it may be of interest to note that the Home Office has been provided, since 2005, by the Office of Criminal Justice Reform, with a document entitled: “The Code of Practice for Victims of Crime”. This document, applicable to a list of service providers in the criminal justice system ranging from, but not limited to, the CPS, the Courts, the Prisons Service, the Probation Service, may be accessed at the following link:
The adoption of a Code of Practice for Victims as well as a revamp of our law with regard to providing a witness with a copy of his/her statements before trial are, in our view, important considerations which should be addressed by stakeholders. Victims should be afforded protection and treatment on a par with criminals in the criminal justice system. It would be unfortunate if accused parties are treated more favourably than victims.