Day 081 - 31 Jan 95 - Page 57


     
     1        as I am aware, there is no way I can force him to talk to
     2        you; he is a free subject and that is entirely a matter for
     3        him.  So it is a factor you have to consider one way or the
     4        other.
     5
     6        If you do call him by one means or another you cannot
     7        cross-examine him because he has become your own witness.
     8        So if, for instance, you asked him a question and you did
     9        not like the answer, you cannot start saying: "But if you
    10        look at this document surely that is inconsistent with what
    11        you said?" or "That cannot be right because" as you would
    12        cross-examine a witness called by Mr. Rampton.  Do you
    13        understand?  You can pursue the matter further by further
    14        questions, but you cannot, as it were, challenge your own
    15        witness.
    16
    17        The next point to make is that Mr. Rampton can
    18        cross-examine him, so he will be able to ask any questions
    19        designed to bring out answers which were favourable to
    20        McDonald's and unfavourable to you.
    21
    22        A further factor which occurs to me is that Mr. Rampton
    23        having said that he does not propose to call Mr. Clark, if
    24        you having called Mr. North, if you do call Mr. North,
    25        Mr. North comes out with something completely new of which
    26        there is no warning in his disclosed statement, Mr. Rampton
    27        could ask to call Mr. Clark in relation to that.  I have to
    28        say that I would be reluctant to allow him to call a
    29        witness he had previously decided not to call in those
    30        circumstances, and it would have to be probably something
    31        completely new which Mr. North has brought out which one
    32        could not anticipate he might raise from looking at his
    33        statement.  Do you understand?
    34
    35        On the other hand, if you call Mr. Clark, Mr. Rampton
    36        cross-examines him, closes his cross-examination and then
    37        you call Mr. North who raises something which was not in
    38        his statement which Mr. Rampton had not dealt with in
    39        cross-examination, it is far easier generally to get the
    40        judge's leave to bring a witness back to continue your
    41        cross-examination.
    42
    43        Mr. Rampton, should he choose, might well find it easier to
    44        have Mr. Clark recalled for further cross-examination if
    45        you put him in the witness box, than he would to get my
    46        leave to call Mr. Clark having indicated that he did not
    47        intend to do so and you not having called him.
    48
    49        I am merely saying these matters because they may be
    50        factors to take into account in deciding whether you really 
    51        do want to call Mr. Clark.  But the decision as to whether 
    52        you do wish to call him is a matter for you.  If he does 
    53        not go into the witness box, either called by Mr. Rampton
    54        or called by you, then, metaphorically speaking, I put his
    55        statement completely on one side.  In fact, when we get to
    56        the end of the evidence in this case I will probably check
    57        with you and Mr. Rampton which, if any, witnesses have not
    58        been called and I will actually take their statements out
    59        of my bundles, do you see, so they are just not there at
    60        all.

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