Law Notes
Hostile Witnesses – Structure of Answer
1. “The issue here is whether [counsel] can discredit their own witness, [witness’s name], in the witness box?” a. When calling a witness, the caller expects their testimony to be favourable to the case. When this doesn’t happen, the caller will want to attack the witness to destroy the effect of the evidence. b. Whether you can do this depends on whether the witness is hostile or merely unfavourable. c. Usually crops up in examination-in-chief, not the other phases.
2. “The general rule is that counsel cannot discredit their own witness unless they are hostile. A hostile witness is something more than just an unfavourable witness.” a. Hostile vs Unfavourable b. An unfavourable witness is a witness that does not prove a fact in issue or proves a fact helpful to the other side (Cross on Evidence @ p 522). i. Colloquially = a witness “who fails to come up to proof” c. If witness is merely unfavourable, counsel has very limited recourse. CL does not allow a party to discredit an unfavourable witness in any way whatever (R v M). i. However, counsel is at liberty to make out the case using other witnesses (Ewer v Ambrose). d. A hostile witness is one who is “unwilling to tell the truth for the advancement of justice” or is “withholding material evidence” (McLelland v Bower @ 104). e. Hostility is an objective question of fact for the judge (McLelland v Bower). i. Onus of proving hostility is on the party seeking declaration. ii. Standard of proof: to show affirmatively hostility. iii. It is in the discretion of the judge to declare a witness hostile, but failure to do so may be grounds for an appeal (McLelland v Bower).
3. “In determining whether a witness is hostile, reference may be made to: a. any prior inconsistent statement (PIS); b. their demeanour; c. conduct in the witness box; d. choice of
1. “The issue here is whether [counsel] can discredit their own witness, [witness’s name], in the witness box?” a. When calling a witness, the caller expects their testimony to be favourable to the case. When this doesn’t happen, the caller will want to attack the witness to destroy the effect of the evidence. b. Whether you can do this depends on whether the witness is hostile or merely unfavourable. c. Usually crops up in examination-in-chief, not the other phases.
2. “The general rule is that counsel cannot discredit their own witness unless they are hostile. A hostile witness is something more than just an unfavourable witness.” a. Hostile vs Unfavourable b. An unfavourable witness is a witness that does not prove a fact in issue or proves a fact helpful to the other side (Cross on Evidence @ p 522). i. Colloquially = a witness “who fails to come up to proof” c. If witness is merely unfavourable, counsel has very limited recourse. CL does not allow a party to discredit an unfavourable witness in any way whatever (R v M). i. However, counsel is at liberty to make out the case using other witnesses (Ewer v Ambrose). d. A hostile witness is one who is “unwilling to tell the truth for the advancement of justice” or is “withholding material evidence” (McLelland v Bower @ 104). e. Hostility is an objective question of fact for the judge (McLelland v Bower). i. Onus of proving hostility is on the party seeking declaration. ii. Standard of proof: to show affirmatively hostility. iii. It is in the discretion of the judge to declare a witness hostile, but failure to do so may be grounds for an appeal (McLelland v Bower).
3. “In determining whether a witness is hostile, reference may be made to: a. any prior inconsistent statement (PIS); b. their demeanour; c. conduct in the witness box; d. choice of