Evidence — Confession — Trial-within-a-trial — Encapsulation of — Cross-examination of state witness in trial-within-a-trial on matters relating to issues in main trial — Possibility that witness would not testify in main trial which would cause prejudice to accused — Such prejudice outweighing prejudice to state resulting from ‘contamination by proliferation’ of issues — Cross-examination allowed.


The second accused was one of six standing trial, who all raised the same defence to the charges against them, namely that there had been a plot to obtain their convictions based on false evidence. During the course of the trial the investigating officer was called to testify in a trial-within-a-trial on the question of the admissibility of a statement by accused 2. The issue arose whether the accused could cross-examine the investigating officer on issues relating to the merits. If the trial-within-a-trial were a proceeding which isolated the evidence given within it from that in the main trial, other issues could not be dealt with at the trial-within-a-trial. The possibility remained, however, that the investigating officer might never be called as a witness in the main trial.

Held, that it was no remedy for the accused, as suggested by the state, to call the investigating officer at the trial or to motivate the court to call him. If the accused called him they would not be allowed to cross-examine him and would in all probability have difficulty in declaring him a hostile witness. They would have to rely on the judge actually calling him in advance of the judge having made such a decision. This was a highly unsatisfactory solution.

Held, that the matter had to be approached on the basis that the accused had to have the opportunity of cross-examining the investigating officer on the relevant issues during the trial-within-a-trial, or they might lose that opportunity forever. If what the witness had to say to the court on the issues were relevant, the accused suffered the prejudice of such a lost opportunity if not afforded the opportunity of proceeding with the cross-examination.

Held, further, that there would be a proliferation of the issues dealt with during the trial-within-a-trial, if the evidence were allowed. That would, to an extent, result in a separation of the proximity of the evidence which was led on the admissibility of the statement and an invasion of the right of the state to deal with this issue alone, uncontaminated by other issues. The prejudice caused to the state by this ‘contamination by proliferation’ would, however, be insignificant compared to the prejudice which would result to the accused if they were prevented from making use of an opportunity which presented itself to properly canvass issues relevant to their defence.


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