Friday, December 14, 2012

A Problem with Witnesses

Well, Dear Reader, I have had a criminal defence case recently jump into my lap that is giving me a bit of a headache.

Without going into too many details, the defendant is charged with a number of counts of unlawful sexual connection, as well as abduction, in regards to an incident late one night at a party.

Clearly, his account of what occurred at the party differs significantly from hers - she has laid a complaint.

This is where I come in...

Now this isn't the first rape case I have done some investigative work on, but it is a first in another, crucial, way:

Rather than being tasked with locating and interviewing typical defence witnesses (ie ones other than those already identified by the prosecution) I have a situation where the only witnesses are the prosecution witnesses. Pretty much everyone who was at the party has been interviewed by the Police - it wasn't much of a party - and the ones not interviewed were foreign travellers who had already departed before the complaint was made.

So as far as the scene of the alleged crime goes, there are no other potential witnesses to identify.

And this is the source of my woes as, my instructing lawyer tells me, they (and by extension, I) cannot contact or speak with prosecution witnesses without the explicit prior consent of the Police. Who are unlikely to provide it.

This is somewhat perplexing and somewhat contrary to the accused's right to a defence. Even Pedro, the retired detective, cannot see a basis for this.

While the Police might not like any investigation made by the defence, there seems nothing in law prohibiting it - as long as it cannot be said to be perverting the course of justice by way of seeking to induce or coerce the witness to change their testimony etc.

Witness tampering is a serious offence!

In other jurisdictions, particularly those with a similar legal basis, the ability for the defence to interview prosecution witnesses (and vice-versa) is the norm. I can't see how that should differ here.

Anyway, I think I may have found a loophole. Supposedly this no-contact prohibition really only comes into effect once the prosecution formally issues its list of witnesses. So, until then, those witnesses remain potential witnesses for the prosecution and there should be no issue in contacting them and obtaining statements from them, right?

Before I put this to the test I'm going to make some further enquiries as I don't want to find out I was wrong the hard way.

I'm too pretty for jail!