APRIL 18 — Recently, a few friends called me up and asked me this question: don’t judges stop lawyers from asking irrelevant questions? 

Yes, the judges do stop lawyers from asking irrelevant questions. Trials are generally a complex process because the quest for justice is generally complex. 

The judge as the presiding officer over the dispute is the neutral person who is hearing the facts and evidence for the first time presented by both parties to the dispute. He does not have presupposed ideas or has not prejudged the case before the trial begins.

I do not envy the judge because he has to exercise utmost patience and give as much opportunity as possible under the law for each party to present their version of the dispute. A good judge also has a high degree of tolerance for human weakness which may be exhibited by the prosecutor or the lawyers before him.

For example, in a criminal trial, the prosecutor will lead evidence to show the accused is guilty of the crime as charged. He will do so by calling witnesses and tendering documentary evidence which sometimes includes the report of an expert. 

The prosecution will not only tender the evidence through his witnesses but will also show to the court his witnesses are credible and trustworthy. The prosecution will have to prove its case beyond reasonable doubt as to the guilt of the accused.  

The lawyer for the accused, normally called the defence lawyer, will have the opportunity to cross examine all the prosecution witnesses. Cross examination is an important process in our adversarial system of trials. It is through the art of cross examination the veracity, the reliability, consistency and the cogency of the witnesses’ evidence are tested and challenged. The defence has to raise doubts in the prosecution case to convince the court based on the evidence tendered by the prosecution, it is not safe to convict the accused. 

I would say the defence lawyer must be thoroughly prepared for the cross examination by knowing his case in detail. It is an extremely important part of the adversarial system of trial. He would already have been given most of the documents the prosecution is going to rely on by virtue of Section 51A of the Criminal Procedure Code. If the prosecution is going to rely on expert evidence, the defence may have already obtained an opinion from their own expert.

The defence can try to elicit material inconsistencies in the evidence of the prosecution witnesses by asking various questions.  If the witness is an expert, the defence may, though cross examination, prove to the court the expert is not a reliable or that the report tendered is not reliable or even relevant to the case. Sometimes, other than matters of facts, there are also matters of law involved, for example, the qualifications of the expert may not be relevant to the expert opinion he is giving and so on. 

The prosecution too will have the opportunity to cross examine the accused and his witnesses if defence is called. Now will be the prosecution’s turn to challenge the defence evidence. The prosecutor has the task of proving his case beyond reasonable doubt and thus cannot allow the defence case to create doubts in the prosecution case.

Sometimes, when the prosecution or the defence is asking a particular question, either side may object on various grounds including that the question asked is irrelevant. In such a case, the party asking the question will submit that it is relevant and the other party will submit that it is irrelevant. 

It is then up to the judge to make a ruling based on the law and the circumstances of the case whether the question is relevant or not. The Evidence Act empowers the judge to disallow certain questions asked by either party.

However, an experienced judge sometimes allow seemingly irrelevant questions to be asked because he is aware to ascertain a relevant fact, a series of questions need to be asked. Often times, it is during cross examination the case becomes clearer and the reliability or otherwise of the witness is established.

The tendering of documents by either party is also subject to the rules spelt out in the Evidence Act.

The idea is to allow best and reliable evidence. 

For this reason, hearsay evidence or documents not made by the witness are disallowed save under exceptional circumstances as provided for under the law. Here again, the judge plays an important role as a referee of law to determine which documents can be admitted and which cannot.  

Our courts are open to public and I would encourage the public to at least experience watching a trial once. It is an extremely important part of our justice system and democracy. 

It is always good for citizens to be mindful of what is going on.

* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.