14 |
Witnesses |
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| 14.1 |
In deciding whether or not to call a witness the prosecutor must be fair to the offender. |
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| 14.2 |
The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. |
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| 14.3 |
The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. The judge is not called on to adjudicate on the sufficiency of those reasons. |
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| 14.4 |
The prosecution should call all apparently credible witnesses whose evidence is admissible and essential to the complete unfolding of the prosecution case or is otherwise material to the proceedings. (Mere inconsistency of the testimony of a witness with the prosecution case is not, of itself, ground for refusing to call the witness). Unchallenged evidence that is merely repetitious should not be called unless that witness is requested by the offender. |
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| 14.5 |
Where there are identifiable circumstances clearly establishing that a witness is unreliable, a prosecutor may decide not to call that witness. |
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| 14.6 |
The prosecution must confer with the witness before making a decision not to call the witness – R v Apostilides (1984) 154 CLR 563; Kneebone [1999] NSW CCA 279. |
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| 14.7 |
The defence must be advised of a decision not to call a witness. If the defence requests that the witness be made available, then the prosecutor will assist by issuing a summons/subpoena for that witness, and by advising the defence of contact details for the witness. |
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| 14.8 |
Whenever a decision is made not to call a witness, the general basis for the decision will be disclosed (for example the witness cannot be located, evidence is repetitious, or the witness not accepted as a witness of truth). However, the unavailability of a witness to testify is not ordinarily required to be disclosed unless the matter proceeds to a contested hearing. In some circumstances, the public interest may require that no reasons be given. |
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| 14.9 |
In dealing with witnesses, a prosecutor must bear in mind the provisions regarding vulnerable witnesses pursuant to section 21A Evidence Act. Guideline 11: Witness Assistance Service is to be applied where appropriate. |
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| 14.10 |
There are legislative provisions applicable to the calling of evidence from children, particularly in Part 2 Evidence Act and Part 3 Justices Act. Prosecutors are to be familiar with and apply these provisions which are designed to assist children to give their evidence without delay and in a manner which minimises trauma and distress to the child. |
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| 14.11 |
In committal proceedings for indictable sexual offences, the prosecutor is required to present the evidence of a child by tendering either the child’s written or recorded statement: section 105AA Justices Act. |
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| 14.12 |
In trials for sexual offences, certain vulnerable witnesses are entitled to pre-record either their evidence-in-chief or the entirety of their evidence (including cross-examination and re-examination). Particularly where there is potential for delay in having a matter determined by a court, prosecutors should elect to apply these provisions: section 21B Evidence Act. |
