#13718 - Unfavourable And Hostile Witnesses - BPC Civil Litigation

UNFAVOURABLE AND HOSTILE WITNESSES

A party may not impeach the credibility of its own witness, whether by:

a) Asking leading questions orb) Asking about or calling evidence to prove prior inconsistent statements, prior

discreditable conduct, bad character, previous convictions or bias

However evidence of witness’s prior discreditable conduct may be adduced in circumstances where it is relevant, not to impeach that witness’s credibility but for some other purpose/

UNFAVOURABLE WITNESSES

• Unfavourable witness is one who either fails to prove that which he was expected to prove or who gives evidence unfavourable to the party by whom he has been called.

• The general rule is that the party calling the witness may not impeach his credibility but may only call other witnesses to prove the matters that the unfavourable witness failed to prove.

HOSTILE WITNESSES

• A hostile witness is one who, in the opinion of the judge, is not desirous of telling the truth to the court at the instance of the party calling him

• An application for leave to treat a witness as hostile must be made to the judge

• Normally the application will be made during examination in chief

• The judge should have regard to the demeanor of the witness, the evidence the witness gives, the evidence the witness does not give and the witness’s willingness to cooperate.

• If a witness gives evidence contrary to an earlier statement the party calling the witness and the judge should not immediately proceed to treat him as hostile, unless that is the only appropriate course because of the degree of hostility, but should consider first inviting the witness to refresh his memory from appropriate material.

• See s3 Criminal Procedure Act 1865

USE OF PREVIOUS CONSISTENT AND INCONSISTENT EVIDENCE

PREVIOUS CONSISTENT STATEMENTS:

• GENERAL RULE: a witness may not be asked in examination in chief about a previous oral or written statement, consistent with his testimony in order to show is consistency. Not may a party seek to adduce evidence of such a statement through another witness.

• EXCEPTIONS TO THE RULE: SECTION 6 CIVIL EVIDENCE ACT 1995:

1. THE STATEMENT IS ADISSIBLE WITH THE LEAVE OF THE OCURT- The court as a discretion to admit previous consistent statement where it

would be in the interests of justice to do so.

2. EVIDENCE IN REBUTTAL OF AN ALLEGATION OF RECENT FABRICATION

   • - Where it is suggested that the witness has recently fabricated his evidence, evidence is admissible in rebuttal to show that on an earlier occasion the witness made a statement consistent with that testimony

     - A previous consistent statement can be proved ether during the re- examination of the witness or by calling the other person to whom the statement was made

3. MEMORY REFRESHING DOCUMENTS

•Evidential status of a previous consistent statementA previous consistent statement admissible under the civil evidence act s6 is admissible as evidence of consistency and the truth of the matters stated

PREVIOUS INCONSISTENT STATEMENTS

• This is a statement made by the witness prior to giving evidence that is inconsistent with their testimony

• CRIMINAL PROCEDURE ACT 1865 SS4: if a witness upon cross examination as to a...