Regina v Brown and Brown: CACD 1997

The court discussed the duties on the prosecutor as to the calling of evidence, saying: ‘Counsel for the prosecution enjoys a discretion whether to call or to tender a particular witness whom he has required to attend. Further, counsel may refuse even to tender a witness, notwithstanding that the witness’s statement has been included in the depositions, if he decides that the witness is unworthy of belief. Our adversarial system requires counsel for the prosecution to present a case against the defendant. He must always act in the interests of justice and to promote a fair trial, and his discretion must be exercised with the se objects in mind. He should not refuse to call a witness merely because his evidence does not fit in exactly with the case he is seeking to prove. But he need not call a witness whose evidence is inconsistent with, or contrary to, the case he is prosecuting since such witness’s evidence will be unworthy of belief if his case be correct.
Counsel for the prosecution ought normally to call, or offer to call, all the witnesses who give direct evidence of the primary facts of the case unless the prosecutor regards the witness’s evidence as unworthy of belief.
It is for counsel for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. He may reasonably take the view that what a particular witness has to say is, at best, marginal.
Counsel for the prosecution is also the primary judge of whether or not a witness to the material events is unworthy of belief.
(7) Counsel for the prosecution, properly exercising his discretion, is not obliged to offer a witness upon whom the Crown does not rely merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown does rely. The law does not insist that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavours to destroy the Crown’s own case. Such a course would merely serve to confuse a jury. The Crown’s obligation is to make such witnesses available to the defence so that the defence can call them if they choose to do so. The jury will then be clear that evidence is led by the party who wishes to rely upon it and can be tested by cross-examination by the other party, if that party wishes to challenge the evidence.’

Citations:

[1997] 1 Cr App R 112

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Cairns; Regina v Zaldi, Regina v Chaudary CACD 22-Nov-2002
The defendants applied for the defence statements of co-defendants to be disclosed. A co-defendant was to give evidence for the Crown, and they sought to have it excluded as unreliable.
Held: The 1996 Act created a duty of secondary . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 11 October 2022; Ref: scu.470733