Regina v Oliva: CCA 18 May 1965

The defendant appealed his conviction for wounding one Brian Rutledge with intent to do him grievous bodily harm. Both the victim, Mr Rutledge, and also a man named Hampden gave evidence at the committal proceedings and their names appeared on the back of the indictment. At a later stage, both Rutledge and Hampden made statements withdrawing their original evidence against the accused. At the trial the prosecution refused to call either Rutledge or Hampden.
Held: The prosecution had exercised their discretion rightly in refusing to call the witnesses since they were ‘abundantly entitled to form the view that, to say the very least, these two witnesses were wholly unreliable and that the interests of justice would not be furthered by calling such witnesses.’ and ‘Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, that there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross examination.
The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness.’

Lord Chief Justice Parker
[1965] 1 WLR 1028, [1965] 49 Crim App Reps 298
England and Wales
CitedSeneviratne v Rex PC 1936
The Board looked at the duty if any on a prosecutor to call witnesses: ‘Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less . .
CitedAdel Muhammed el Dabbah v Attorney General for Palestine PC 1944
The Board looked at the discretion which lay with a prosecutor as to whether to call witnesses.
Held: The discretion, in the first instance at any rate, rested with the prosecution: ‘And the court will not interfere with the exercise of that . .

Cited by:
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 December 2021; Ref: scu.242112