R v Oliva

Facts

Two men were charged with wounding. The victim's wife was in a position to give evidence that mattered. The prosecution did not call her. The defence said the judge should have called her, or required the prosecution to tender her, so that she could be cross-examined.

Issue

May a judge call a witness whom the prosecution has chosen not to call?

Held

Yes, but sparingly. The Court of Criminal Appeal held that the prosecution should call the witnesses who speak to the events, including those whose evidence may help the defence, or at least tender them. If the prosecution does not, the judge may call the witness himself. The power is reserved for cases where justice requires it.

Principle

A criminal judge is not a party, but he is not powerless. Calling a witness is the exception, used so that a material account is not kept from the jury.

Why it matters

In a civil case the judge has no such power unless both parties agree. R v Scott, on a witness after the close of a case, stands for the same limit.

For study only. By lanbuk.com. Always check current sources and consult a qualified professional.