Approach where the case is one of oath against oath
That where there exists evidence that is probative of a particular claim and the party in whose custody that piece of evidence is, but fails to submit that piece of evidence before the court, the party cannot fall back on the principle of oath against oath to justify her failure to produce evidence to substantiate her claim. In any case, where the appellant called a witness, it is inappropriate for it to be described as oath against oath. It is even worse when the testimony of a witness of a party corroborates the story of her opponent, and this is exactly what happened when the plaintiff’s witness who is her brother testified for her.
Where a question boils down to oath against oath, especially in a criminal case, the trial Judge should first consider the version of the prosecution, applying to it all the test and principles governing credibility of witnesses, when satisfied that the prosecution’s witnesses are worthy of belief, consideration should then be given to the credibility of the accused’s story, and if the accused’s case is disbelieved, the Judge should consider whether, short of believing it, the accused’s story is reasonable probable
Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the prosecution applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.
It is evident that the circuit court judge erred in rejecting the case for the defence firstly, when he had not first tested the evidence of the fourth prosecution witness and found it worthy of credence, and secondly, upon matters which are not in evidence before him. In all the circumstances, the explanation given by the appellant is reasonably probable and the circuit court judge should have accepted it.
It is worth noting that while a trial judge has the distinct advantage of directly observing a witness’s demeanor and conduct in the witness box, an appellate court, which relies solely on the record of appeal, is not entirely deprived of the ability to evaluate a witness’s credibility. The absence of face-to-face observation per se does not render appellate judges incapable of discerning whether a witness's testimony is reliable or otherwise. Notably, Sections 80 to 84 of the Evidence Act, 1975 (NRCD 323) are not provisions meant to be applied exclusively by trial courts; they equally guide appellate courts in their assessment of a witness’s credibility based on the recorded evidence.
Conflict between a party’s testimony and that of his own witness
It is settled legal principle, in the evaluation of evidence that whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue (as in the case of the Defendant in the instant case) it was not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue.
It is settled legal principle, in the evaluation of evidence that whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue (as in the case of the Defendant in the instant case) it was not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue.
Cross-examination of a prosecution witness on a previous statement
In Ghana, the procedure in the cross-examination of witnesses for the prosecution on their previous police statements is that laid down in subsection (2) of section 268, and in construing this subsection the court is of the opinion that effect must be given only to its language. It has been decided in Wallace-Johnson v. R. (1939) 5 W.A.C.A. 56, P.C. that where the Criminal Code of Ghana appears to be intended to contain a full and complete statement of the law, it must be interpreted according to its tenor, free from any glosses or interpolations derived from any expositions however authoritative of the law of England or of Scotland. This principle obviously applies to the construction of the Criminal Procedure Code, 1960, which, by virtue of section 415 thereof, is read and construed as one with the Criminal Code. The plain meaning of the words of subsection (2) is that the prosecution have a discretion in furnishing the court with a copy of a statement made by their witness, who is being cross-examined. Section 27 of the Interpretation Act, 1960 (C.A. 4), says that “may” is to be construed as permissive and empowering.
Effect of failure to cross-examine on a material fact
However, where a party had given evidence on a material fact and had not been cross- examined on it, he need not call further evidence in support of same. See: Fori v. Ayirebi [ 1966] 2 GLR 627.
Effect of inconsistencies in a witness’s testimony
A litigant whose account of the very transaction on which his case depends shifts in this way is not to be given a favourable finding upon it; such a shift is not a permissible variation but a conflict in the party’s own case that disentitles him to relief.
In the real world, evidence led at any trial which turned principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions or the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a whole rejection of the evidence to which they might relate. Thus in any given case, minor, immaterial, insignificant or noncritical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence were clearly reconcilable and there was a critical mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over those inconsistencies.
Conversely however, in assessing the credibility of a witness, a Court shall attach little or no weight to the testimony of a witness that is riddled with material contradictions, irreconcilable inconsistencies, or clear fabrications that undermine the reliability of the testimony of the witness as a whole. While minor discrepancies do not necessarily render a witness’s testimony unreliable, substantial contradictions on critical or core issues, particularly those touching on the substance of the case, must raise serious doubts about the witness’s truthfulness.
In law for conflicts and inconsistencies in evidence to influence a decision they must be material and such that they destroy proof of an element of the offence or totally discredit the witnesses such as to make their story unreliable. So long as there was evidence to support the charge of stealing which any reasonable tribunal could act upon to convict, there was a prima facie case made out. A court should not reject a party’s case simply because the witnesses contradicted themselves here and there, especially when they testified to events which occurred some years earlier. The court should consider the materiality of the conflicts in the light of the issue(s) which such evidence sought to prove and decide whether it makes proof of the issue, if relevant to the case, highly unacceptable or unreasonable to accept. But where the conflicts and inconsistencies do not affect the main issue before the court or proof of the elements of the crime, then the court could only consider them in the light of the witnesses’ credibility. If after considering all these the trial court is still satisfied with the evidence, then an appellate court will hardly, if ever, step in to set aside the decision, since the trial court has had the singular privilege of observing the witnesses give their testimony.
Evidence given in the first person by a representative of a party
It is trite law that if a person representing a party to a suit in a local court gives evidence in the first person in the name of the party whom he represents, as if it were the party himself giving evidence, the whole of that evidence is inadmissible, and should be completely disregarded as if that evidence had not been given.
The receipt which was tendered in evidence as exhibit B was issued in the name of the plaintiff Ama Donkor and not in the name of the witness. It is obvious therefore that this witness who says he lives at Koforidua could not have been speaking on matters within his own knowledge, but was giving evidence as Ama Donkor. His evidence was therefore practically valueless except as to the documents he tendered in evidence.
But to that general rule that rebutting evidence in cross-examination should be confined to relevant matters in issue an exception is now recognised where the purpose of the evidence in rebuttal is to show that the witness is biased.
Evidential value of a suggestion put in cross-examination
A suggestion put in cross-examination and denied by the witness is not evidence of the fact suggested; it does not acquire probative force merely because it was put with assurance.
We have always held the view that in establishing the standard of proof required in a civil or criminal trial, it is not the quantity of witnesses that a party upon whom the burden of proof rests calls to testify that is important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party have succeeded in proving the ingredients required in a particular case. In other words, does the evidence led merit the standard of proof required in a particular case? If it does, then it will be a surplusage to call additional witnesses to repeat virtually the same point or seek to corroborate evidence that has already been corroborated.
Whether or not a witness is a material witness depends on the quality and content of the evidence he is expected to offer in relation to the case on trial. He will be deemed to be material if the evidence expected from him is deemed to be so vital as to be capable of clearly resolving one way or the other an important and decisive issue of fact that is in controversy.
There are several reasons for not calling a person as a witness in court and each case must be considered in its own light without jumping to conclusions.
Section 60 (1) of the Evidence Act which he finds solace in is not couched in mandatory terms. The section reads: “A witness may (our emphasis) not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter”, and by section 42 of the Interpretation Act 2009, Act 792: “In an enactment the expression “may” shall be construed as permissive and empowering, and the expression “shall” as imperative and mandatory. But more importantly, if counsel for the applicant has gone a step further to read section 60 (2) of the Evidence Act, the provision in section 60 would have been clearer. Section 60 (2) provides: “Evidence to prove personal knowledge may but need not consist of the testimony of the witness himself”. (Our emphasis)
If I may ask, what then is the purpose of cross examination. It is to test the truth and personal knowledge of the matters a witness testifies to. The testimony of a witness if not subject to cross examination would be expunged from the record of proceedings or better still cannot be relied upon by a trial Judge in evaluating or making a finding of fact as such evidence is untested This assessment can only be done by the trial Judge after the witness has testified.
Rebuttal of a denial made in cross-examination on credit
As a general rule where a witness is cross-examined as to credit and he denies any matter put to him his answers are conclusive and the cross-examining party is precluded from leading evidence to rebut this denial.
Reliability of a truthful witness with limited opportunity of observation
A witness may be a truthful witness and his credibility may be beyond reproach by any standard; but his opportunity for acquiring the facts about an incident may be so limited, his perception so blurred by circumstances, that he may be incapacitated from acquiring correct and accurate knowledge of the facts; in those circumstances, despite his veracity, the facts the witness relates, may be nothing more than an honest mistaken account of the incident.
