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.
