Quote:
Originally Posted by GioforPM
Usually you can't cross-examine your own witness - mainly meaning you can't ask leading questions or try to impeach them. You need permission to do so, and yes, it's essentially the "hostile witness" concept.
IMO what happened here is that they knew they needed these guys to give evidence they needed to get out there, so they had to call them. But they also knew there'd be a bunch of very unhelpful evidence and would be reluctant to give the stuff which was harmful to their buddies. So they probably planned to do this all along.
|
I would agree they would have a contingency plan for this, but it would be beyond belief the Crown would put up a witness they believed would lie just so they could run an adverse witness application in hopes of getting something they could use out of a witness they will be telling the court is a perjurer.
According to the CBC report, the Crown has applied under section 9(2) of the Canada Evidence Act to be allowed to cross examine their own witness, Howden, on the basis he is feigning a lack of memory. In other words, the Crown is alleging their own witness is lying under oath in an attempt to not present damning evidence he could give against the accused.
This is a rare application for many reasons, perhaps the best of which is one a senior prosecutor gave at an education seminar on this topic many years ago: as a prosecutor with the burden of proof, about the best you can hope for after this type of application is to neutralize your adverse witness. Unless you can show one of the accused was involved in the witness feigning a lack of memory, then all you end up doing is proving the witness is prepared to lie under oath for whatever are his own reasons.
What could get very interesting though is if the judge grants the Crown application then they may get in via cross-examination what appears to be some seriously terrible evidence for the accused...corroborating various aspects of the complainant's version of events.
If that happens, then a common approach of the defence would be to obliterate the credibility and reliability of the witness in their cross exam (and as noted above, leave them neutralized and of no use to either party). But when the witness has been apparently omitting harmful things as opposed to testifying positively to a different version of harmful things, then who knows what the defence will think is the best strategy...keeping in mind there are likely more witnesses still to come.
I am a little surprised the Crown did not first attempt to cross examine Howden on inconsistencies in the prior statements without alleging a feigned lack of memory and an apparent request that Howden be declared an adverse witness. That is a permissible application under section 9(2). It seems that would have been a more plausible way to potentially get him to reluctantly adopt his prior statements in a manner that they could still be useful for the prosecution.