R v Fenlon

Facts

A party who does not cross-examine a witness on a material part of the evidence is taken to accept it.

Issue

What is the consequence of not putting your case to the other side's witness?

Held

The point is treated as not disputed. Counsel who wants to contradict a witness must put the contradiction in cross-examination, so that the witness has a chance to answer it.

Principle

Failure to cross-examine is acceptance. It is not a licence to ambush the witness in a closing speech.

Why it matters

There is an ethical limit as well. Do not cross-examine if you have nothing to challenge, and do not challenge a fact you know is true.

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