I downloaded this simple explanation of what constitutes a “hostile witness” and an “unfavourable witness” – impediments to justice being truly served in/by the courts. Do read the thread of comments that follow:

Unfavourable and Hostile Witnesses

You will, at any early stage in the proceedings, take statements from each of your witnesses. When a witness is giving their evidence through examination-in-chief you would expect them to give answers consistent with their previous statement. However, in some situations a witness does not give the answers expected of them. The witness can then be declared either unfavourable or hostile.

Unfavourable Witnesses: An unfavourable witness is one whose testimony does not advance the case of the party who called him, despite the witness’s best intentions. A witness will be unfavourable if they cannot recall some of the facts about their testimony. If you come across an unfavourable witness you can ask the court for leave for the witness to refresh his memory by reading his previous statement. It is very often the case that cases come to trial many months after the witness has provided a statement. Therefore, it is important that before your witness gives their evidence that they have the opportunity to read their previous statements to refresh their memory so that when they are being asked questions they are familiar with what they said in their original statement. They are then less likely to become an unfavourable witness and will hopefully enhance the strength of your case. If after reading their previous statement the witness still cannot recall the facts then you cannot assist your witness by putting leading questions or prompting them. You should instead try to get the witness out of the witness box as soon as possible.

Hostile Witnesses: A hostile witness is different from an unfavourable one. Whilst an unfavourable witness can be potentially damaging to your case, a more serious situation is having a hostile witness. A witness will be ‘hostile’ if the evidence they give is harmful to the side calling them and it conflicts with the expectations of that side. A hostile witness will have no desire to tell the truth and support the case of the party calling him. An example of a witness being hostile is a witness who has deliberately changed their evidence since they made their original statement. The party calling this witness can ask the Judge to grant leave to treat them as a hostile witness.



1 Response to “”

  1. 1 ninitalk
    June 27, 2010 at 9:02 am

    Halimah Mohd Said: If the justice and legal systems cannot plug their loopholes to prevent gross abuses and corruption how can there be justice and fairness in society?

    Suzainur K A Rahman: Good question.

    Shaik Daud: I agree that before a witness gives evidence in court he can request the ptosecution to give him his statement ‘in order to refresh his memory’. He has to make the request and the prosecutor on his own cannot just give the statement to him otherwise the prosecutor may be accused of prompting the witness to give evidence in the prosecution’s favour. The prosecutor should not be seen to ‘coach’ the witness. Inspite of this if the witness still gives evidence contrary to his statement there is nothing the prosecutor can do but just to remind him that he has made statements which are contrary to his evidence ot vice versa. If the witness still persist then the prosecutor should apply to the court to impeach the witness by using his statement and there certain procedures to follow. If as a result of the unfavourable or hostile witness the accused is acquited then the prosecutor can proceed to charge the witness or witnesses for perjury. There is no way to prevent a witness from giving unfavourable evidence or being hostile. The eventual threat of being able to be charged for perjury is deemed to be a deterent.

    Halimah Mohd Said: Dato’ – what about making a sworn, written statement a pre-condition to their agreeing to be a witness, and then allowing the sworn statement in court?
    The whole idea of a witness being cajolled or persuaded to be sympathetic to a counsel’s case is to me quite acceptable. It’s better than the same witness being bribed and threatened to turn hostile.

    Shaik Daud: Giving of sworn statements and using the statements in court is not
    acceptable. Otherwise there is no need of a trial where witnessess gives
    sworn ‘evidence’ and such evidence can be tested with croos examination by counsels and prosecutors alike. Mere differences between statement and
    evidence in court do not make the evidence unfavourable or hostile if during cross examination the witness can give reasonable unswers for the
    differences. It is when a ‘yes’ becomes a’no’ or vice versa that the trouble starts. Even using sworn statements witnesses can turn hostile for many

    Halimah Mohd Said: …one of the reasons being they are bribed or threatened.
    So the cases get thrown out of court and the guilty get away scot free.
    And the investigators like the police/MACC get blamed for being inefficient or for practising selective prosecution.

    Shaik Daud: I agree with you on this but one consolation is that the perjurer goes to
    jail. I had an occasion to prosecute a perjurer who gave hostile evidence in
    the Indian beauty Queen Jean Perera case one Khatigesu was charged for her murder but because one important witness turned hostile Khatigesu was
    acquited but the witness one Jayatilaka was impeached and eventually I had
    him charged for perjury and on conviction he was sentenced to 10 years jail…. See More
    The Judge held that to commit perjury in a murder case is very serious. It
    is this fear of being jailed that is hoped to deter witnesses from turning hostile even after receiving a bribes. Fortunately such cases of
    unfavourable and hostile witnesses are not that frequent.

    Halimah Mohd Said: It is ironic that the perjurer got 10 years and the accused (the most likely murderer) got away scot free. JUSTICE???

    Do you know the case was made into a very well enacted documentary on Channel 732 CI?

    Shaik Daud: Yes I did in fact the only 2 survivors for that case was myself and the defence counsel and both of us were interviewed. The maker of the documentary sent me the VCD of it.

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