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witness’s correct name and address. On Appeal, this was overruled by the Supreme Court as a
denial of an accused’s right to confront the witnesses against him given the Sixth amendment of the
Constitution.”
This is the relevant part:
“Fortas J. added at page 131: “… when the credibility of a witness is in issue, the very start in
‘exposing falsehood and bringing out the truth’ through cross-examination, must necessarily be to
ask the witness who he is and where he lives. The witness’ name and address opens countless
avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary
inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”
and, my Lord, that effectively is what happens and is happening in this case if the Crown are allowed
to call this important witness in this particular way: the defence right to cross-examination is
effectively emasculated.
My Lord, that cannot be right. That cannot be in the interests of justice. So we say, firstly, that it is
not in the interests of justice and, secondly, it certainly does not give the defendant a fair trial if a
witness can give evidence in this way. We say, further, it is not necessary to protect his identity in
this way, because all we want is to be able to investigate. I do not want to have his name in public at
all. That is not the object. The object is to test him as to whether or not he is a reliable and an honest
person. So, in court he could be known as Mr. E for all we care. It matters not. He can be screened
from the public if that is necessary.
MR. JUSTICE BLOFELD: You cannot investigate him without it becoming known that he is
investigated.
MR. TANSEY: My solicitors would have to carry out investigations. That would be their
responsibility. But as far as the usage, that usage would be limited to being able to cross-examine
him and it may be that nothing emerges; but in court, whatever the protection the Court felt
necessary for him, if the court felt it necessary, then we would obviously be sympathetic towards
that approach; but that is why we say the key to it is to allow us to be able to check him to see
whether or not he is honest and reliable and, having got that, then the Court is in the best position of
all to protect him thereafter from screening and, if necessary, if your Lordship felt that the only way
to protect him was to be in camera, then so be it; if that was the only way to protect him, we could
not and would not object. But, at this stage, we cannot do justice in cross-examination of this
particular witness.
Your Lordship, it seems that this witness lives in the United Sates. There is no way that we would
seek to adduce any evidence at all to disclose where he lives and his whereabouts. My Lord, it is a
large and enormous continent and his ability to be there without being detected would be extremely
high; so, my Lord, the opportunity for this person, having given his evidence in this country, to return
to the United States - if that is where he is still lives - is there and the protection that he would have
is available to him and the risk would be very limited; and furthermore that Oschenko has defected.
So, Oschenko is the man in question. He has come over. Mr. Oschenko is not going to touch him or
do any harm to him. So the actual risk in question of harm to this person are in our submission really
nil. One can understand, as I do, that he must feel anxiety. I do understand that. But, my Lord,
despite that understanding, the only way that we can do justice to this defendant in respect of the
witness is to know who he is, where he lives and the chance to carry out these checks and I rely
very much upon what Fortas J. added in that particular case.
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