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Issues concerning the right, and value, of cross-examination of witnesses in a trial have been the subjects of discussion in the media in the last two days.

The right to cross-examine a witness called by another party in a proceeding has existed in the common law adversarial system from time immemorial. This right is also prescribed in the Evidence Act 1950, which likewise prescribes the right of re-examination.

The value and importance of cross-examination in our system of justice, both in criminal and civil trials, are time-tested. In the process of discovery of the truth, oral and documentary evidence must be put to careful scrutiny. Cross examination is one of the powerful and indispensable tools employed in this process. It is never safe to come to a final conclusion based on what one party has said or presented, without granting the other party or parties the right to vigorously question its veracity.

However much it may at first blush seem possible or tempting to come to a quicker decision without the benefit of cross examination, experience has shown how unreliable this method proves to be. Thus, the need and importance of cross examination has been aptly expressed by a prominent judge, Justice Megarry (who later became Vice Chancellor), in the following manner:-

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

This sound reasoning has been adopted by our Federal Court two decades ago, in the Mokhtar Hashim case. The Federal Court held that to deny counsel the right to cross examine a witness was "clearly wrong". In the words of Abdoolcader F.J., "it cannot be a matter of speculation as to what the effect of cross examination might well have been"; and that "to say therefore that cross examination would have been a waste of time is not a proposition we can in any way consider acceptable or entertain".

A justice system deserves and requires constant improvement. Increasing efficiency and shortening the legal process are important aspects; but these have to be achieved without sacrificing fundamental and useful features which have served the system well.

Dated 4^th November 2004.

Hj Kuthubul Zaman Bukhari
Chairman
Bar Council