ABSTRACT
In both cases, it was stressed that the opportunity to examine-in-chief without interruption is particularly important ‘if the evidence emerging in chief is a story that takes a bit of swallowing’. In R v Wiggan (1999) The Times, 22 March, after the defendant had been re-examined by her counsel, the judge asked some 64 questions of a testing nature, suggesting scepticism of the defendant’s evidence. The Court of Appeal held that, after a witness has been re-examined, it is open to the judge to ask questions to clear up uncertainties, to fill gaps, or to answer queries which might be lurking in the jury’s mind. However, it is not appropriate for the judge to cross-examine the witness. Similarly, in R v Tuegel [2000] 2 All ER 872, the Court of Appeal held that although a judge should avoid asking a witness questions which appear to suggest that the judge is taking sides, he has a duty to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if that is unclear. Such questions should usually be asked at, or close to, the time when the ambiguity first becomes apparent. The court went on to say that although it might exceptionally be necessary for a judge, in the presence of the jury, to interrupt a speech by counsel, it is generally preferable for him not to do so. Ideally, interventions for the purpose of clarifying or correcting something said, either by judge or counsel, should be made in the first instance in the absence of the jury and at a break in the proceedings, so that, if necessary, the point could be dealt with before the jury in an appropriate fashion.
