560 Hostile witnesses
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JUDICIARY OF TRINIDAD AND TOBAGO
HALL OF JUSTICE KNOX STREET
PORT OF SPAIN, TTO
Terms: (stephen’s digest)
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Halsbury’s Laws of England/CRIMINAL PROCEDURE (VOLUME 27 (2010), PARAS 1-451; VOLUME 28 (2010), PARAS 452-962)/10. EVIDENCE AND WITNESSES/ (9) EXAMINATION IN CHIEF/560. Hostile witnesses.
- Hostile witnesses.
A hostile witness (sometimes referred to as a witness who proves ‘adverse’1) is one who is not merely disappointing or unfavourable to the party calling him, but is also, in the opinion of the court, unwilling to tell the truth at the instance of that party2. A witness may prove hostile through his adverse testimony or through his refusal to answer questions, even where he does not give any adverse testimony3, and he may be ruled hostile even where his unwillingness to co-operate is driven by fear, rather than by any animosity to the party calling him4.
A party producing a witness who is found to be hostile may not impeach the credit of that witness by general evidence of bad character5, but he may6 contradict him by evidence from other sources, and in addition the court may give leave for that party to cross-examine his own witness and prove the witness has made at other times a statement inconsistent with his present testimony7. Before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement8.
In cases where the witness demonstrates his hostility by refusing to testify once sworn, it is arguably impossible for his previous statements to be ‘inconsistent with his present testimony’, but at common law he may still be cross-examined concerning such statements9.
A witness may be called to testify even when it is known in advance that he is likely to prove hostile10, although a judge may in some cases be justified in holding a trial within a trial for the purpose of deciding whether the calling of such a witness by the prosecution would be in the interests of justice, and whether he should exclude (in the exercise of his discretion) evidence of any previous statements of a hostile witness that might be considered unfairly prejudicial to the defendant11. Where a previous inconsistent statement is proved in evidence by such means, it is admissible as evidence of any fact asserted12. It is accordingly possible for a defendant to be convicted on the basis of previous statements made by prosecution witnesses who have resiled from those statements in their oral testimony13.
1 See eg the Criminal Procedure Act 1865 s 3 (cited in the text and notes 5-8); and see Greenough v Eccles (1859) 5 CBNS 786.
2 Stephen, Digest of the Law of Evidence (12th Edn, 1936) pp 169-170. A witness who is genuinely forgetful may not be treated as hostile: R v Manning  Crim LR 675, CA. As to unfavourable witnesses see para 559.
3 R v Thompson (1976) 64 Cr App Rep 96, CA. An application to have a witness ruled hostile should be made once he shows clear signs of hostility: R v Fraser and Warren (1956) 40 Cr App Rep 160, CCA; R v Pestano  Crim LR 397, CA. If he does not show any such signs until he is cross-examined by the other party, he may still be treated as hostile during re-examination: R v Norton and Driver  Crim LR 687, CA. See also R v Powell  Crim LR 592, CA (hostility first manifested during re-examination).
4 As in eg R v Joyce  EWCA Crim 1785,  All ER (D) 309 (Jun). Where a judge rules that a witness can be treated as hostile at trial within the meaning of the Criminal Procedure Act 1865 s 3 (see the text and notes 5-8) by the party calling him, he must, in all but exceptional cases, still direct the jury to approach the witness’s evidence with caution, even if the witness does not ultimately prove to be hostile: R v Greene  EWCA Crim 2282, (2009) Times, 28 October.
5 See the Criminal Procedure Act 1865 s 3. As to evidence of bad character see para 619 et seq.
6 Ie as with any other unfavourable witness (see para 559).
7 See the Criminal Procedure Act 1865 s 3; and see R v Booth (1981) 74 Cr App Rep 123, CA. The judge’s discretion to refuse or grant leave to cross-examine is absolute (Greenough v Eccles (1859) 5 CBNS 786; Price v Manning (1889) 42 ChD 372, CA; R v Williams (1913) 8 Cr App Rep 133, CA) and will rarely be interfered with on appeal (R v Williams; R v Manning  Crim LR 675, CA). Any questioning of a possibly hostile witness should generally take place in the presence of the jury: R v Darby  Crim LR 817, CA; but cf R v Honeyghon and Sayles  Crim LR 221, CA.
8 See the Criminal Procedure Act 1865 s 3. A statement admitted in this way need not be in writing: R v Prefas, R v Pryce (1986) 86 Cr App Rep 111, CA. Where a defendant’s spouse is not a compellable witness, the possibility of being cross-examined as a hostile witness should be explained before the witness is sworn: R v Pitt  QB 25, 75 Cr App Rep 254, CA. As to the compellability of a spouse see para 512.
9 The Criminal Procedure Act 1865 s 3 does not refer to this, but has not removed or destroyed the basic common law right of the judge in his discretion to allow such cross-examination when a witness proves to be hostile: R v Thompson (1976) 64 Cr App Rep 96, CA.
10 R v Mann (1972) 56 Cr App Rep 750, CA; R v Dat  Crim LR 488, CA; R v Honeyghon and Sayles  Crim LR 221, CA.
11 R v Honeyghon and Sayles  Crim LR 221, CA. As to the exclusion of prosecution evidence on the basis of unfair prejudice see generally para 460.
12 See the Criminal Justice Act 2003 s 119(1)(b); and para 651.
13 As in eg R v Joyce  EWCA Crim 1785,  All ER (D) 309 (Jun). If, however, such evidence is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a re-trial, discharge the jury: see the Criminal Justice Act 2003 s 125(1); and para 655.