Assume the case has reached trial. You intend to call four witnesses to deal with the facts relating to the fire. Your second witness is William, who was a security officer employed by CAL and who was on duty at the time of the fire. He gives his name and address in answer to your initial questions. In answer to your next question he says he does not remember the fire. In answer to your next question he says he does not remember signing a witness statement. When you ask him to turn to the statement in the trial bundle he takes about 4 minutes to find the page. He says the signature "might be" his. He says he does not recognise the document.
Assume there is no suggestion that William has any relevant medical condition, and that he appeared to have a full recollection of the relevant events a short time before the trial.
(c) Describe the type of application you should consider making about William's evidence. In this context there is an important distinction. What is this distinction, and what is its significance? [3 marks]
(c) The distinction referred to in this question is that between unfavourable and hostile witnesses(1 mark). William will be unfavourable if he has simply failed to come up to proof (BCP para 47.63) (1 mark). There is a rule against attacking the credit of the witnesses called by your party, so this cannot bedone against William (1 mark) (Criminal Procedure Act 1865, s. 3). However, it is permissible to call the other2 witnesses on the facts relating to the fire, otherwise there would be an unjustified importance attached on which witness was called first (Ewer v Ambrose (1825)) (1 mark).
William will be hostile if he is regarded by the judge as showing no desire to tell the truth at the instance of the party calling him (1mark). It is also probably necessary for the witness to display a hostile animus to the party calling him (Stephen's Digest of the Law of Evidence; BCP para 47.64) (1 mark). If so, William maybe invited to refresh his memory (1 mark),but ultimately his previous statement may be put to him (Criminal Procedure Act1865, s 3) (1 mark) and he may have leading questions put to him by counsel for CAL (1 mark).