When is a Witness Hostile?
| Published date | 01 January 1942 |
| Date | 01 January 1942 |
| DOI | http://doi.org/10.1177/002201834200600106 |
Whenis a Witness Hostile?
IN
a caserecently before the Irish Court of Criminal Appeal
(ThePeople (A.-G.) v. Hannigan &Ors.
[1941],
I.R.,
252)
the
second ground relied on by the applicant forleave to
appeal raised the question of themethods by whicha trial
judge is entitled to proceed in determining whether awitness
is hostile ornot.Although theevidenceof oneTowell (who
was eventually treated as a hostile witness)was thesameat
thetrial as that given by him whenthe depositions were taken,
the
trial judge heard evidence,in theabsenceof the jury,1
of an earlier unwritten statement made by Towell to
the
police, which was inconsistent with his evidencein his deposi-
tions and at the trial.
In
the Court of Criminal Appeal, it
was argued
that
the learned judge should not have allowed
proof of this statement, forthe purpose
of
showing thatthe
witness was hostile;or, to
put
it another way, that he should
not have allowed proof of thestatement unlesshe were first
of theopinion that
the
witness was hostile.
In
support of
this contention, several arguments were advanced which
repay attention.
(I)
It
was, of course,necessary fortheappellant first to
claim an affirmative answerto thequestion: Is there aright
of appeal from thetrial judge's exercise of his discretion in
finding
that
a witnessis hostile?
The
earlier common law
cases are agreed 2
that
the matter lies within the judge's
1As
the
Court
of
Criminal
Appeal
pointed
out,
the
absence of
the
jury
was, of
course,
attributable
to
the
desire of
the
learned
trial
judge
that
the
jury
should
not
be
made
aware
of
the
contents
of
the
statement,
unless
and
until
he
had
first
decided
that
the
witness
was hostile.
•
With
the
exception
of
Clarke v. Saffrey (1824,
Ry:
&}
AI., 126), in
which
Best
CJ.
held
that
where
awitness was of necessity hostile to
the
party
calling
him
(e.g.
where
he
had
witnessed
a
deed
or
where
a
party
had
to call his adversary), counsel
might,
as a matter of right, cross-examine
him.
But,
in
the
same
year,
Lord
Abbott
CJ.
in Basten v.Carew (1824,
Ry.
&}
M.,
127)
held
that,
"
In
each
particular
case
there
must
be
some
discretion in
the
presiding
Judge";
while
in Price v. Manning (supra)
Best
CJ.'s
dictum
was
disapproved
by all
the
members
of
the
Court
of
Appeal,
as
being
contrary
to
their
experience
of
general
practice.
See also
R.
v. Murphy (1837,
8 C. &IP.,
297);
R.
v. Chapman (1838, Id.,
558);
R. v. Abiram
Ball
(1839,
Id.,
745).
6J
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting