Prosecutor in Criminal Matter Duty to Call Witnesses

Area of Law – Practice and Procedure

An Article about Prosecutor in criminal matter duty to call witnesses

PROSECUTOR – duty to call witnesses
This can be a real problem in a criminal case. There is a witness who is favourable to you but the Prosecution with not call them. You want to be able to cross-examine them (leading questions) rather than call them yourselves and have to ask open ended questions. In practical terms a lot depends on whether your Prosecutor is a fair one as most of them are or whether they are wanting to win the case and not really interested in being fair.

It is not a decision for the Judge. She/he is just an umpire and is not able to tell the Prosecution who to call. They can make comment about it though if they think the situation is an extreme one.

It is not enough that the prosecutor merely think that the evidence is going to be unreliable.

Following is an excerpt of case law about this issue;

“The Crown is expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case. starting point, it should be borne in mind that in general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case and the names of such persons would, ordinarily, in conformity with Presentment Rule 4(1) be endorsed on the presentment.

As the High Court emphasised in R. v. Apostilides (1984) 154 C.L.R. 563, the role of the prosecutor when deciding whether a person will be called for the Crown and, it would follow, whether a person’s name should be endorsed on the presentment, is “a lonely one”. Importantly, in the same passage they went on to say that it is:

“also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.”

(per Gibbs, CJ, Mason, Murphy, Wilson and Dawson, JJ at 575-6)

At the heart of this responsibility is the role of the prosecutor in endeavoring to ensure that our criminal trials are fair and can be seen to advance the interests of justice. In Richardson v. R. (1974) 131 C.L.R. 116, the significance of maintaining fairness to the accused when confronted by an issue of this kind was addressed:

“He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused.”

(per Barwick, CJ, McTiernan and Mason, JJ at p.119)

Although the prosecutor in the present matter did not expressly state that he was deeply suspicious of the reliability of the hitherto totally unco-operative Cunningham when informed by counsel that this person was prepared to make a statement, it would appear to be both clear from his manner of expression, and understandable in the circumstances, that this was the case. But, as the High Court made clear in the passage from Apostilides set out above, the presence of such a suspicion would not, of itself, constitute an adequate basis for a refusal to call an eye witness to a disputed event in the kind of circumstances presently under consideration. Still less could it provide a foundation for the point blank refusal of a prosecutor even to have the witness interviewed in the first place or, as happened here, to consider notes proffered by counsel for the applicant indicating the substance of the evidence which it was anticipated the witness would give, if called in the trial. The situation was significantly different from that presented in R. v. Johnson (unreported, Court of Appeal, 27 February 1997), where the wife of the applicant was not only unco-operative with the prosecution but allegedly complicit in the commission of the offence, or that which arose in Tien Tran v. Magistrates’ Court of Victoria and & Anor. (unreported, Court of Appeal, 4 June 1998), where the potential witness had clearly indicated that he would foreswear himself in order to protect the accused.”

R v Armstrong [1998] VICSC 126 (30 June 1998)

1998 4 VR 533


Date: 01/09/2009