The common Law may thus be compendiously stated: In both civil and criminal cases, the judge may, for the discovery of the truth, call and examine any witness himself. Such witness cannot be cross-examined by the parties as of right, but where material evidence is given against either party, the judge should give leave to that party to cross-examine the witness. In a civil case, such a witness can only be called with the consent of the parties. The judge’s power in a criminal case is not so limited. The prosecution have a wide discretion with regard to the calling of their witnesses, and their discretion must be exercised in a manner calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution, therefore, appear to be exercising that discretion improperly it is open to the judge to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and if they refuse to do so, the judge may on his own motion call the witness: See R.v. Oliva (1965) 49 Cr. App. R. 298, C.C.A. After the case for the accused is closed, the judge can only call a fresh witness when a new matter has arisen ex improviso, which could not have been foreseen.
ADDAI v. DONKOR [1972] 1 GLR 209 [1971] SLR (CA) 42 · Court of Appeal · 1971 · ARCHER JA
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