Unfavourable Witnesses Flashcards
What are the 2 case authorities for calling witnesses
Whitehorn
Apostilides
What section of the Evidence Act relates to unfavourable witnesses
S38
What are the 3 types of unfavourable witnesses and what are the sections
38 (1) (a) unfavourable evidence
(b) Witness not making a genuine attempt to give evidence
(c) Prior inconsistent statements by the witness
What are the criteria for granting leave to cross exam an unfavourable witness
S36 (6) (a) put court on notice as soon as you become aware
S38(6)(b) Telll the court if you don’t cross examine them, the defence are not likely to!
What section deals with leave to cross examine a witness on their credibility?
S38(3)
What section deals with LEAVE
192 (2) (a)-(f)
Case law to define unfavourable
Souleyman 1996 adopted a dictionary meaning of unfavourable as “not favourable”
What does the case of Lozano decide
On this basis, even neutral evidence may satisfy the meaning of unfavourable. Does not equate to hostile or adverse.
Leave should be granted where evidence of witness is unfavourable, or where attitude of witness to party calling them is unfavourable
S38(1)(b) - not making a genuine attempt to give evidence
Cases R v G.A.C. And Lozano
Witnesses who are unwilling or deliberately giving evidence
The Court can take into account the demeaned of the witness
What does Whitehorn v R say
prosecution must call all available witnesses unless a satisfactory explanation is given for not doing so. DO NOT have to call witnesses who are - unreliable - untrustworthy - incapable of belief - unnecessarily repetitive
What does Apostilides v R say
Must call all witnesses, unless
Unreliable, untrustworthy, incapable of belief, or repetitive
Based on; Judgement of prosecutor Prosecutors positive judgement Own observations More than a suspicion Should conference Not on the suspicion of others
