Law of Evidence notes compiled by Yvette Brown 2010-2011

Date: 17 September 2010

TOPIC:

INTRODUCTORY

LECTURE

reasonable doubt, except where the burden shifts. Distinctions

in civil cases it is on a balance of probabilities. Note that for

AND

civil cases the judge has to decide that one set of facts is more

INTRODUCTION

probable than the other. If the judge cannot then the claimant
INTRODUCTION

has failed to prove his case.

Print a copy of the Evidence Act Jamaica

There is a general presumption of innocence.

Definition of Evidence: Evidence is what is admissible as part

of the trial process - both civil and criminal trials, that is

Witnesses: Witnesses are persons who give evidence .

Generally a husband cant give evidence against a wife and

material that can be produced for the tribunal. It may be oral or

vice versa. If the charge involves personal violence against the

written/ documentary. Documentary evidence is a much more

other party that is an exception to the general rule.

reliable tool e.g. letters written to the other party.

Children: the main test is whether a child understands the duty

Real Evidence: The production of something in court so that a

of taking the oath. Does the child understand the value of

judge or jury may form their opinion/ draw their own

telling the truth. The general rule is that a child is assumed to

conclusions. Often this is extremely effective.

be not competent until you can prove the child understands the
value of the truth. A judge conducts a voire dire. There is also

Function of the judge: The judge makes legal ruling on

provision for a child to give unsworn evidence, e.g. a child

admissibility ex. no case submissions. Judicial discretion is

without religious upbringing.

used to prohibit evidence which may be prejudicial to a

Oaths and Affirmation: a person must be allowed to swear

defendant.

by the oath which binds his own conscience e.g. persons who

Burden of Proof and Standard of proof: In criminal matters,

are Rastafarian see the case of R v Hines and King [1971] 17

the prosecution has the burden to prove guilt beyond

WIR 326.
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Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Hines and King [1971] 17 WIR 326: The

David". Members of that sect hold the belief that the

appellants Hines and King were tried by jury on an

Emperor of Ethiopia is the living God, the returned

indictment containing three counts charging them

Messiah and representative on earth of God the Father.

jointly with assault, robbery with aggravation and

The trial judge refused to permit Hines to be sworn in a

malicious damage to a motor bus. They were acquitted

form other than that prescribed by s 3 of the Oaths Law,

of robbery with aggravation but were convicted on the

Cap 264, stating that as far as he knew an oath taken in

other counts. At the close of the case for the prosecution

the form in which Hines wished to take it was not

the appellant King gave sworn testimony in his own

lawful. Hines thereupon rested his case. On appeal after

defence and closed his case. His defence was an alibi.

conviction it was submitted that the judge's refusal to

Thereupon the appellant Hines elected to give evidence

permit Hines to be sworn in the form Hines considered

on oath in his own defence but declined to be sworn in

to be binding on his conscience was wrong and resulted

the form prescribed by s 3 of the Oath Law, Cap 264

in depriving Hines of his right to testify on oath in his

[J], as repealed and re-enacted by s 2 of the Oaths

defence to the charges laid in the indictment. On behalf

(Amendment) Law, 1954 (No 43 of 1954) commencing

of King it was submitted that in wrongly depriving

"I swear by Almighty God that ". He said that his

Hines of testifying on oath in his own defence, King

reason for refusing to be so sworn was that he professed

was deprived of testimony which might have resulted in

the Rastafarian faith and would only consider himself

his acquittal. Held: (i) the trial judge erred in refusing

bound by an oath in the form commencing "I swear by

to permit Hines to be sworn in a form which Hines

Almighty God, King Rastafari" as he and other

declared to be binding on his conscience and in so

members of that faith regarded and worshipped the

doing deprived that accused of his right to give sworn

Emperor of Ethiopia (formerly known as Ras Tafari) as

testimony in his defence and his convictions therefore

"the true and living God that sits on the throne of

could not stand; (ii) King was not deprived of any legal
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Law of Evidence notes compiled by Yvette Brown 2010-2011

right to adduce evidence in the course of making his

corroboration. Later in the course a reasonable amount of time

defence as a result of the trial judge's wrongful refusal

will be spent on this issue.

to permit Hines to be sworn and King's convictions

Identification Evidence: Mistaken identification coupled with

were therefore not assailable on that ground. Appeal of

an alibi. The rules are very strict. A jury must be warned by the

Hines allowed. Appeal of Kings dismissed.

judge of a mistaken identification and caution them even in

Examination in Chief: This is the first opportunity to let the

cases where persons say they knew the individual before - see

court know what your clients / witnesses are saying. You

the case of R v Turnbull [1977] QB 224.

R v Turnbull [1977] QB 224: whenever a case against

cannot ask leading questions. There are exceptions to the rule

a defendant depends wholly or substantially on the

e.g. introductory parts of questioning, name, address.

correctness of one or more identifications of the

Cross Examination: the aim of cross-examination is to get a

defendant, which the defence alleges to be mistaken,

witness to qualify his evidence in such a way that it supports

the direction to the jury should include a warning of the

what you are saying. Alternatively, you may put it to the

special need for caution before convicting the defendant

witness that he is lying.

and the reasons for that caution . Further, the quality of

Re-Examination and Beyond: After your witness has been

the identification should be considered and the jury

cross-examined, and you return to ask him questions.

should be directed to examine closely the circumstances

in which the identification was made. Where the quality

Corroboration: As a matter of law some complaints must be

of the identification is good, the jury can safely be left

corroborated. Note that there is a modern movement towards

to assess the value of the evidence, but, where the

the view that it is for the judge to determine whether or not

quality is poor, the case should be withdrawn from the

corroboration is required. Corroboration is generally required

jury unless there is other evidence capable of

for sexual offences - rape. Evidence of children also requires

supporting the identification. The judge should direct

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Law of Evidence notes compiled by Yvette Brown 2010-2011

the jury on the evidence that is capable of supporting

statements so closely connected to an occurrence they are

the identification . Where therefore the appellants had

considered part of that occurrence. Declarations that are subject

been convicted wholly or substantially on evidence of

to the hearsay rule may be admissible if they qualify as res

identification:- Held, that the trial of the first two

gestae; i.e. if they constitute part of the thing done under a

appellants having correctly followed the practice

recognised exception to the hearsay rule.

necessary in cases depending on identification, their

Confessions: This is often used by the police . Look at them

appeals would be dismissed, but that, the practice not

carefully. Unless they have been made voluntarily they are not

having been followed in the trials of the third and fourth

admissible. They are inadmissible due to the use of threats or

appellants, their appeals would be allowed.

the making of promises or oppressions.

Per curiam. In setting out guidelines the court has not

Similar Fact Evidence: To what extent is similar fact evidence

used the phrase "exceptional circumstances" to describe

admissible. The rule is that generally it is not admissible

situations in which the risk of mistaken identity is

because they are prejudicial. However there are exceptions to

reduced because the use of such a phrase is likely to

the general rule, see the case of R v P [2002] 1 AC 146 in

result in case law as to what circumstances can properly

this was a case involving incest . the point in contention was

be so described; such case law is likely to be a fetter on

whether in relation to evidence regarding one of the young

the administration of justice when so much depends on

ladies, they could use the evidence of the other young lady.
R v P [2002] 1 AC 146, [2002] All ER: The defendant

the quality of the evidence in each case .

was charged with committing sexual offences against

Hearsay Evidence: The rule is that witnesses cannot give

his daughter, when she was aged between ten and

evidence of what someone else said to him for the purpose of

twelve, which included use of violence towards her and

establishing truth of what the other person said . The

tying her to the bed. There was medical evidence that

exceptions to the rule are res gestae the happening itself. Res

she was not a virgin and genital findings of penetrative

gestae- the thing done. Spontaneous exclamations or

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Law of Evidence notes compiled by Yvette Brown 2010-2011

injury consistent with her allegations. He denied all

available at trial, it would have been used, and in any

wrongdoing and relied on certain inconsistencies in the

event a different verdict would not have been reached.

complainant's evidence.

The evidence relating to the third party was not reliable,

and there was no reason to doubt the complainant's

The defendant did not adduce evidence of his previous

explanation that she had made that allegation because

conviction for incest which involved tying up another

of pressure from her mother.

daughter. He was convicted of two counts of rape and

unsurprising that the defendant had engaged in the type

appealed against conviction on the ground, inter alia,

of behaviour identified by her friend which involved

that there was fresh evidence, which challenged the

credibility of the complainant.

allegations of a nature and quality which were very

First, there was

different to her allegations involving the defendant.

evidence from the complainant's mother, sister and a

That evidence might not have been called at trial

social worker that following the defendant's conviction,

because it would have been possible that the

the complainant had made a statement which she had

defendant's conviction for incest might then have been

retracted. The statement alleged that the complainant

adduced. Accordingly, the defendant's conviction was

had been raped by a third party around the time that the

safe and would be upheld.

defendant was supposed to have committed the

offences.

Secondly, there was evidence from the

complainant's

friend

that

suggested

that

Moreover, it was

Character Evidence: Does it have any value? A character

the

witness: is one who testifies at another persons trial, vouching

complainant had made false allegations of sexual

for that persons high moral character and standing in the

intercourse with the friend's father and three boys at

community, but who does not have knowledge of the validity

school. The Court of Appeal heard oral evidence.

of the charges against that person.

Held - The appeal would be dismissed. In the instant

Privilege: Communications and correspondences passing

case, it was unlikely that if the evidence had been

between lawyers and clients are privileged. The law recognises

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Law of Evidence notes compiled by Yvette Brown 2010-2011

this privilege and it is afforded only to lawyers. In a doctor

which is relied on to establish a fact in issue. Collateral facts,

patient relationship the doctor may be compelled to say what

therefore affects the admissibility of evidence.

information was passed between him and his client in

Hearsay evidence: assertion of person not called as a witness

confidence.

for the purpose of establishing the truth of that assertion. It is

Date: 24 September 2010

generally inadmissible although numerous exceptions have

been developed over the years. Hearsay evidence must be

TERMINOLOGY AND PRINCIPAL CLASSIFICATIONS

distinguished from original evidence of words spoken. Such

IN THE LAW OF EVIDENCE

evidence is always admissible once it is relevant . Original

Facts in issue: as against collateral facts- the law of evidence

evidence e.g. from a contract , a contract may be oral, if it is, it

is concerned with facts in issue. These are certain facts which it

is original. Look at what is being attempted to prove.

is important for either party to prove in order to establish a

Documents/Documentary Evidence: this describes any kind

case. Facts in issue in a particular case will vary in accordance

of document produced as evidence in the case. Documents are

with the nature of the charge (e.g. criminal case) and

only admissible in evidence if they are relevant. Documentary

sometimes the nature of the defence. In civil cases the facts in

evidence like oral evidence is subject to the rule against

issue will be governed by the statement of the pleadings and

hearsay.

the substantive law. The substantive law also governs facts in

issue in criminal cases. Facts in issue may vary from case to

Circumstantial evidence: this refers to a set of facts from

case depending on the charge.

which the court is asked to accept and may infer the existence
of a fact in issue. For example in a case involving fishermen,

Collateral facts: facts which approve the proof of facts in

one of them was lost at sea, one may infer that the one lost at

issue may affect credibility of witness testifying to a fact in

sea is dead. See the cases of Woolf v Woolf [1931] All ER

issue or may affect the admissibility of an item of evidence

Rep 196 and R v Alphanso Kenyon [1978] 15 JLR 272

Law of Evidence notes compiled by Yvette Brown 2010-2011

This case involves cultivators on a sugar estate in Clarendon.

to ascertain the name and address of the woman and

Kenyon was tried three times. Read all three accounts.

whether the husband had associated with any woman

Depending on the nature of the violence, there may be a strong

were without result, nor was there any evidence to

chain.

suggest that the husband was of an adulterous

disposition. On appeal against the dismissal of the

Woolf v Woolf [1931] All ER Rep 196: If evidence is

wife's petition for divorce on the ground of the

given in good faith which, in all but the most unusual

husband's adultery with the unknown woman at the

circumstances, is clear evidence of adultery, it is the

hotel, Held: the court ought to be satisfied with the

duty of the court to act upon it and grant a decree nisi to

evidence, and so was obliged by s 178(3) of the

an innocent petitioner unless the King's Proctor can

Supreme Court of Judicature (Consolidation) Act, 1925,

bring forward cogent evidence to rebut the obvious

to pronounce a decree nisi.

presumption of adultery. An innocent woman's husband,

who had left her in January 1929, wrote her a letter in

R v Alphanso Kenyon [1978] 15 JLR 272.The

July

confessing

applicant was convicted for murder on circumstantial

"misconduct," and requesting a divorce. It was proved

evidence mainly in relation to actions of the deceased

that the husband had signed the hotel register, that he

which pointed to the death of the deceased on March 7,

and another woman had spent at least two nights alone

1974. The indictment showed the offence as on a day

together in a bedroom at the hotel, and had been found

unknown between the 7th March and the 8th day of

in bed together there in the morning by the

March 1974. Part of the evidence against the applicant

chambermaid. The husband refused to disclose the

was that he had collected the deceaseds pay explaining

name or address of the other woman, despite the

the deceased was ill. The applicant in a cautioned

repeated requests of the wife's solicitors, the trial judge

statement put in evidence by the Crown and in his

and the King's Proctor. Enquiries by the King's Proctor

unsworn statement at the trial stated that he had seen

1929,

enclosing

hotel

bill,

Law of Evidence notes compiled by Yvette Brown 2010-2011

and spoken to the deceased after collecting his pay and

The distinction between circumstantial evidence and direct

again on the morning of 8 March 1974. A Crown

evidence is that for direct evidence the jury asked to assess

witness gave evidence of a conversation with the

facts based on direct perception of witness . On the other hand

applicants wife in the applicants presence on the

with circumstantial evidence the jury is asked to draw an

evening of 7 March 1974, during which she said that

inference from a set of facts narrated by the witness.

she had not seen the deceased since he left that morning
with the applicant.

Real evidence: this covers the production of material evidence

which is relevant to the case, for the inspection of judge or jury.

On appeal against conviction, held: i) that it was

This also covers physical characteristics of a party or witness.

incumbent upon the trial judge to deal specifically with

This also includes the viewing out of court by the judge and

each bit of circumstantial evidence pointing out to the

jury and witnesses of the locus in quo, the place where the

jury the possible inferences capable of being drawn

thing may have occurred. Locus in quo, the place where or in

therefrom leaving it to them to say what inferences they

which. Refers to a locale where an offense was committed or a

would accept having regard to the rest of the evidence.

cause of action.

The circumstances were not sufficient; ii) that the

statements of the applicant as to seeing the deceased

Relevance and admissibility: the general rule is that all

were germain to his defence and warranted a specific

evidence which is relevant to prove or disprove a fact in issue

direction on how they should be approached; iii) that

is admissible. Although there are cases in which obviously

evidence of the conversation with the applicants wife

relevant evidence is disallowed because of its prejudicial effect

was admissible only for the purpose of showing the

against an accused greatly outweighs its probative value. The

applicants reaction to it, and not as evidence of the

case of R v Smith [1966] 10 WIR 271

truth of what the wife stated and the jury should have

distinction between relevance and how it operates.

been so directed. Appeal allowed. New trial ordered.

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illustrates the

Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Smith [1966] 10 WIR 271 : The appellant was

was relevant and would affect the credit of the

convicted of the offence of being unlawfully in

constable by showing whether he was a person who

possession of ganja, contrary to s 7 (c) of the

should be believed. Held: the evidence which it was

Dangerous Drugs Law, Cap 90 [J]. At the trial it was

sought to adduce was for the purpose of impeaching

suggested in cross-examination to a constable called

the character or credit of the constable by showing

as a witness for the Crown, that in a case previously

that he had acted improperly in the trial of the

tried in the same court in which five persons were

previous case. The fact that the witness may have

charged with being in possession of ganja, he had

acted improperly on that occasion was quite

admitted having found only one parcel of ganja in a

irrelevant to the issue before the court. He had denied

car, but had divided the parcel into five separate

the suggestion of improper conduct which had been

parcels, so as to connect each accused with a separate

made to him and his answers were conclusive of the

parcel. The constable denied this suggestion. The

matter. The evidence which it was sought to adduce

defence called as a witness the resident magistrate

was therefore irrelevant and inadmissible and was

who had tried the case in respect of which this

rightly excluded. Appeal dismissed.

suggestion was made, and he was asked in

Weight of evidence: describes its probative value on the

examination-in-chief a question as to what the

evidence , while admissibility of evidence is always a matter

constable was alleged to have said at that trial.

for the judge , weight of evidence is a matter for the jury.

Objection was taken on behalf of the Crown to this

question on the ground that it was irrelevant to the

Date: 01 October 2010

issue and inadmissible, and the objection was upheld

JUDICIAL CONTROL

and the evidence excluded. On appeal, it was

submitted that the evidence sought to be adduced
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Law of Evidence notes compiled by Yvette Brown 2010-2011

Judicial Control: Judicial control can be seen in a number of

other witnesses, WG and his reputed wife CS, spoke

ways: Comments by judges about evidence can influence a

about the appellant's movements. WG said that upon

verdict. For example this man is from a little village, he is not

the appellant's request he permitted him to stay that

very educated, but you be the judge. At the appellate stage one

night at his home. CS spoke of a conversation she

may argue that there are statutory grounds - verdict of jury

overheard between WG and the appellant during

unreasonable having regard to the evidence, the power is

which the appellant said he had just knocked down a

sparingly exercised since the fundamental rule of process is for

man but he did not know whether the man was dead.

the jury to determine guilt.

Judicial discretion- in a criminal case the judge has no power

The cause of death was a fracture of the skull and

haemorrhage in the brain cavity. In the opinion of the

to admit evidence that is legally inadmissible. He always has

pathologist the injuries were probably occasioned by

discretion and a duty to exclude even legally admissible

a blow to the head given with considerable force by a

evidence where its prejudicial effect could outweigh its

blunt instrument like a piece of wood which was

probative value, see the case of Alexander v Queen [1969] 14

found at the scene. There were inconsistencies and

WIR 466.

discrepancies between the evidence given by WG and

CS in the preliminary enquiry and at the trial and the

Alexander v Queen [1969] 14 WIR 466: The

trial judge expressed opinions on the facts but left all

prosecution case against the appellant on a charge of

the issues for the jury to determine. The appellant was

murder depended mainly on the evidence of HW who

convicted. On appeal,Held: (i) that a judge is entitled

occupied a portion of a shack another part of which

to express his opinions on questions of fact even

was occupied by the deceased and the appellant. HW

strongly where the circumstances warrant, always

described a quarrel between the two men on the night

provided that he leaves the issues of fact quite clearly

of 29 October 1967. He heard the sound of a blow

for determination by the jury, (ii)that having regard to

and told of the appellant's departure that night. Two

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Law of Evidence notes compiled by Yvette Brown 2010-2011

all

the

circumstances

the

inconsistencies

and

the whole of the case, there is a reasonable doubt,

discrepancies were not so material as to suggest that

created by the evidence given by either the prosecution

the witnesses were liars although there was some

or the prisoner, as to whether the prisoner killed the

variation between the evidence at the preliminary

deceased with a malicious intention, the prosecution has

examination and the evidence at the trial. Appeal

not made out the case the prisoner is entitled to an

dismissed.

acquittal. No matter what the charge or where the trial,

the principle that the prosecution must prove the guilt
of the prisoner is part of the common law of England
and no attempt to whittle it down can be entertained.

TOPIC: BURDEN AND STANDARD OF PROOF

When dealing with a murder case the Crown must

BURDEN OF PROOF
One must distinguish between the legal burden of proof and the

prove

(a) death as the result of a voluntary act of the

accused and (b) malice of the accused.

The case establishes save for a few exceptions that the general

evidential burden i.e. that is the duty of adducing evidence.

Burden of proof the legal burden lies on the person who will

rule in criminal matters is that the prosecution bears the burden

fail if no evidence is offered by either side at outset of

of proof.

proceedings i.e. the prosecution, a defendant is deemed

innocent until proven guilty. This general rule is articulated in

One must distinguish the legal burden from the evidential

Woolmington v Dpp [1935] AC 462.

Woolmington v Dpp [1935] AC 462. Throughout the

burden which is not really a burden of proof properly called.

Evidential burden describes a duty of one party or the other to

web of the English Criminal Law one golden thread is

place material before the jury so as to make the issue one fit for

always to be seen, that it is the duty of the prosecution

consideration of the jury.

to prove the prisoner's guilt subject to what I have

At the outset of the case the legal and evidential burden is with

already said as to the defence of insanity and subject

the prosecution. It is the prosecutions duty to adduce sufficient

also to any statutory exception. If, at the end of and on

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Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence to establish a prima facie case against the defendant.

convicted and sentenced to five years imprisonment.

If he fails to do so , a no case submission made by the

On appeal by G against conviction it was submitted by

defendant will be found to succeed. See the cases of

Queen v Gill [1963] 2 All ER 688, 1 WLR 841, [1963] 47 Cr

his counsel that the burden of disproving that G had had

intercourse with the virtual complainant while under

App R 166 and Gomes v Queen [1962] 5 WIR 469.

fear of death was on the prosecution, that the jury

Queen v Gill [1963] 2 All ER 688: Where an accused

should have been directed that the prosecution must

person desires to rely on the defence of duress, he must,

lead evidence as would satisfy them beyond reasonable

either, by the cross-examination of the prosecution

doubt that G did not act under duress, and that as the

witnesses or by evidence called on his behalf, or by a

only issue in so far as G was concerned was whether or

combination of the two, place before the court such

not he had acted under duress it should have been made

material as makes duress a live issue fit and proper to

clear to the jury by the judge that corroboration must be

be left to the jury; but, once he has succeeded in doing

directed to that issue. Held: (i) duress is a defence, and

that, it is for the Crown to destroy that defence in such a

where there is sufficient evidence to raise such defence,

manner as to leave in the jury's minds no reasonable

as in this case, the burden is on the prosecution to

doubt that the accused cannot be absolved on the

satisfy the jury beyond reasonable doubt that the act of

grounds of the alleged compulsion.

the accused person was a voluntary one; (ii) it is,

however, a misconception of the principle to state that

Gomes v Queen [1962] 5 WIR 469. BRITISH

the prosecution must lead such evidence as would

CARIBBEAN COURT OF APPEAL: G and S were

satisfy the jury that the accused person did not act under

jointly tried by a judge and jury on an indictment

duress; it may not be possible for the prosecution to

accusing them of rape. S, whose defence was mistaken

lead such evidence in some circumstances but yet the

identity, was acquitted. Gs defence was that he had

acted under compulsion of fear of death.

jury may feel sure on the evidence as a adduced that

He was
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Law of Evidence notes compiled by Yvette Brown 2010-2011

duress is negatived; (iii) it is also incorrect to say that

The implied statutory provisions arises where statutes create

the prosecution must lead corroborative evidence to

criminal offences

show that the defence of duress has not been

Although they did not expressly place the burden of proof on

established; (iv) the directions on the question of duress

the defendant, they may in certain cases be construed to have

were unambiguous, the proper questions were left to the

that effect. The task of the court is to determine what is the

jury and they satisfied the requirements of the law.

proper construction of the statute.

and sets out exemptions provisos etc.

What are the exceptions to this general rule established in

Cases tried summarily and on Indictment: Cases tried

Woolmington v Dpp [1935] AC 462. They are: i) Insanity

summarily there is a specific statutory provisions to the effect

defence, ii) express statutory provisions (i.e. where the burden

that where it is an offence to do something (subject to provisos

of proof shifts to the defendant,

exceptions etc.) it is for the defendant to prove a particular

ii)

implication of statutory provisions (i.e. was it the intention of

proviso or exception applies to him.

parliament that the burden of proof be borne by the

S 101 Magistrates Court Act UK

defendant.
S 13 Justice of the Peace Jurisdiction Act Jamaica (excerpt,
Where he bears that burden it is a legal evidential burden,
which he discharges by proof on a balance of probabilities.

bulleted to facilitate ease of reading)

Where such defendant shall be present at such hearing,

Once the defendant has a legal burden if he says nothing he

the substance of the information or complaint shall be

must fail.

stated to him, and he shall be asked if he have any

If the express statutory provision says the defendant is to bear

cause to show why he should not be convicted, or why

the burden of proof on an issue then, the defendant will have

an order should not be made against him, as the case

the legal burden on a balance of probability.

may be; and

if he thereupon admit the truth of such information or
complaint, and show no cause, or no sufficient cause,

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Law of Evidence notes compiled by Yvette Brown 2010-2011

why he should not be convicted, or why an order should

by the prosecutor or complainant in reply as aforesaid;

not be made against him, as the case may be, then the

and
the said Justice or Justices, having heard what each

Justice or Justices present at the said hearing, shall

convict him, or make an order against him accordingly;

party shall have to say as aforesaid, and the witnesses

but
if he do not admit the truth of such information or

and evidence so adduced, shall consider the whole

complaint as aforesaid, then the said Justice or Justices

make an order upon, the defendant, or dismiss the

shall proceed to hear the prosecutor or complainant, and

information or complaint, as the case may be; and

if he or they convict or make an order against the

matter, and determine the same, and shall convict, or

such witnesses as he may examine, and such other

evidence as he may adduce in support of his

defendant, a minute or memorandum thereof shall then

information or complaint respectively, and also to hear

be made, for which no fee shall be paid; and

the defendant and such witnesses as he may examine

conviction (in the Form (7) (a), (7) (b), or (7)(c) of the

and such other evidence as he may adduce in his

First Schedule, or order, in the Form (8) (a), (8) (b), or

defence, and also to hear such witnesses as the

(8) (c) of the First Schedule as the case may be), shall

prosecutor or complainant may examine in reply, if

afterwards be drawn up by the said Justice or Justices in

such defendant shall have examined any witnesses, or

proper form, under his or their hand or hands; and he or

given any evidence other than as to his, the defendants,

they shall cause the same to be lodged with the Clerk of

general character; but

the prosecutor or complainant shall not be entitled to

the Courts to be by him filed among the records of the

make any observations in reply upon the evidence given

such information or complaint, it shall be lawful for

by the defendant, nor shall the defendant be entitled to

such Justice or Justices, if he or they shall think it,

make any observations in reply upon the evidence given

being required so to do, to make an order of dismissal

the

Court, or, if the said Justice or Justices shall dismiss

of the same (according to Form (9)in the First

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Schedule), and shall give the defendant in that behalf a

In trials on indictment the common law applies the old rule :

certificate thereof (according to Form (10) in the First

where an offence was subject to a defence that someone has for

Schedule), which said certificate afterwards, upon being

e.g. a license it is for the defendant to prove he had the license.

produced without further proof, shall be a bar to any

The modern rule is that it is a matter of construction of the

subsequent information or complaint for the same

particular statute in question to determine the intention of

matters respectively against the same party :

Provided always, that if the information or complaint in

parliament: see the case of Queen v Edwards [1975] QB 27, 2

All ER 1085, where on the correct reading of the statute it was

any such case shall negative any exemption, exception,

the intention of parliament.

proviso or condition in the enactment on which the

Edwards laid down the following rules:

same shall be framed, it shall not be necessary for the

prosecutor or complainant in that behalf to prove such

1. The operation of the rule is not confined to case in

negative, but the defendant may prove the affirmative

which facts are peculiar

2. The operation of the rule depends on the construction of

thereof in his defence, if he would have advantage of

the same.

the statute. If upon its true construction it prohibits the

doing of certain acts subject to specified acts, it is for

S 22 Summary Jurisdiction Act Belize

S 231 Magistrates Court and Procedure Act St. Kitts
S 131 Magistrates Court Act Barbados

the defendant to bring himself within the exception as

an exception to the burden of proof in criminal cases.
3. Where the rule operates it places a legal and not an

The primary point is this : in relation to summary offences it is

evidential burden on the defendant .

for the defendant to bring himself within the exception and to

prove his defence.

R v Edwards - [1974] 2 All ER 1085, the appellant

was charged on indictment with selling by retail
intoxicating liquor without holding a justices' licence
15

Law of Evidence notes compiled by Yvette Brown 2010-2011

authorising the sale, contrary to s 160(1)(a) of the

its true construction, the effect of the enactment was to

Licensing Act 1964. At the trial the prosecution proved

prohibit the doing of the act in question subject to a

that the appellant had sold intoxicating liquor on the

proviso, exception, excuse or qualification, there was

occasion in question but did not adduce any evidence

no need for the prosecution to establish a prima facie

that he was not in possession of a justices' licence. The

case that the proviso etc did not apply. In those

appellant was convicted and appealed, contending that,

circumstances, whether or not the matter was peculiarly

since the clerk to the licensing justices was required by

within the knowledge of the accused, it was sufficient

s 30(1) of the 1964 Act to keep a register giving

for the prosecution to prove the act in question and the

particulars of justices' licences granted in the district,

burden, in the sense of the legal or persuasive burden,

the question whether a licence had been granted to him

then lay on the accused to prove that the proviso etc

was not one peculiarly within his own knowledge and

applied. It followed that the onus lay on the appellant to

accordingly the onus was on the prosecution to prove

prove that a justices' licence had been granted to him.

that no licence had been granted to him. Section 160(1),

The appeal would therefore be dismissed.

so far as material, provides: '... if any person--(a) sells

Look at the case of Williams v Commissioner of Police

or exposes for sale by retail any intoxicating liquor

without holding a justices' licence ... authorising the

[1968] 12 WIR 463- how the old rule operated.

Williams v Commissioner of Police [1968] 12 WIR

sale of that liquor ... he shall be guilty of an offence

463 - Section 8 of the Motor Vehicles and Road Traffic

under this section. 'Held - Where an enactment made

Act 1937, No 16 [B] provides for the issue to importers

the doing of a particular act an offence, save in

and dealers in motor vehicles, of identification numbers

specified circumstances, or by persons of specified

or marks for demonstration purposes.

classes or with special qualifications or with the

against the appellant was that he, being the driver of a

permission or licence of specified authorities, and, on

vehicle bearing such marks, did use the vehicle for a

16

The charge

Law of Evidence notes compiled by Yvette Brown 2010-2011

purpose not prescribed by the section.

He was

intention to hold the said meeting. Section 13 (1) (a)

convicted and appealed. The issue was whether it was

provides that any person who holds, organises or

on the prosecution to prove unlawful user by the

speaks at any meeting in a public place in respect of

appellant or whether it was for the appellant to show

which no notice has been given under s 3 (1) shall be

that his user of the vehicle was within the terms of the

guilty of an offence. Held: (i) the section of the

section. Held: the purpose for which the vehicle was

Ordinance under which the charge was laid did not

being used by the appellant at the material time was

create an absolute prohibition against the doing of a

something which was peculiarly within his own

particular act save for certain exceptions, qualifications,

knowledge and it was for the appellant to show that he

excuses, etc, but merely created a prohibition against

was using the vehicle for a purpose within the section.

the manner of doing a particular act, ie, speaking at a

Appeal dismissed.

meeting in a public place in respect of which no notice

had been sent to the appropriate officer; (ii) s 8 of the

Look at the case of Daguiar v Barrow [1963] 5 WIR 12, see

Summary Jurisdiction (Procedure) Ordinance, Cap 15

justice Bollows judgment at p 20. It makes an interesting

[BG], which states: Any exception, exemption,

distinction on the point.

DAguiar v Barrow (1963) 5 WIR 12, the appellant

proviso, condition, excuse or qualification, whether it

was convicted by a magistrate of the offence of

does or does not accompany in the same section the

speaking at a meeting in a public place in respect of

description of the offence in the statute creating an

which meeting no notice had been given, contrary to s

offence, may be proved by the defendant, but need not

13 (1) (a) of the Public Order Ordinance, 1955 [BG].

be specified or negatived in the complaint, and, if so

Section 3 (1) of the Ordinance requires that: Any

specified or negatived, no proof in relation to the matter

person who desires to hold a meeting in a public place

so specified or negatived shall be required on the part of

shall... notify the appropriate officer of Police of his

the complainant had no application to s 13 (1) (a) of

17

Law of Evidence notes compiled by Yvette Brown 2010-2011

the Public Order Ordinance, 1955, for the words in

or more other active or inert ingredients in such a way

respect of which no notice had been given were an

that the opium or ... the morphine, cannot be recovered

essential element of the offence created and constituted

by readily applicable means or in a yield which would

the gist of the offence; (iii) the burden of proof

constitute a risk to health." Police officers found in the

remained on the prosecution to prove prim facie the

appellant's

negative averment, ie, that notice in respect of the

milligrams of a white powder which, when analysed,

meeting had not been sent; (iv) the prosecution had not

was found to be morphine mixed with caffeine and

established a prim facie case against the appellant in

atropine. The appellant was charged under section 5(2)

respect of failure to send the required notice. Appeal

of the Act of 19711 with unlawful possession of a

allowed.

controlled drug morphine. The prosecution called no

home

paper

fold

containing

154

evidence at his trial as to the proportion of morphine in

the powder, and, at the end of the prosecution's case, the
Queen v Hunt [1987] 1 All ER 1- this case demonstrates the

defence submitted that there was no case to answer. The

importance of construing particular statutory provisions.

Queen v Hunt [1987] 1 All ER 1 / [1987] A.C. 352
Regulation 4(1) of the Misuse of Drugs Regulations

judge ruled that there was a case to answer. The

appellant then changed his plea to guilty, and a

1973, as amended, provides that section 5(1) of the

conviction of unlawful possession of morphine was

Misuse of Drugs Act 1971 "shall not have effect in

recorded. The Court of Appeal (Criminal Division)

relation to the controlled drugs specified in Schedule

dismissed the appellant's appeal against conviction. On

1." Paragraph 3 of Schedule 1 to the Regulations

appeal by the appellant:- Held, (1) (per Lord Keith of

provides: "Any preparation of medicinal opium or of

Kinkel, Lord Griffiths, Lord Mackay of Clashfern and

morphine containing ... not more than 0.2 per cent. of

Lord Ackner) that the burden of proving the guilt of an

morphine ... being a preparation compounded with one

accused was on the prosecution save in the case of the

18

Law of Evidence notes compiled by Yvette Brown 2010-2011

defence of insanity and subject to any statutory

prosecution to prove that the morphine in the

exception; that such exception might be express or

possession of the appellant had been in the prohibited

implied and the burden of proof might be placed on the

form, which it had not done, and no burden had fallen

accused whether the exception appeared in the same

on the appellant under regulation 4(1) and paragraph 3

clause of the instrument in question as that creating the

of Schedule 1 . Per Lord Mackay of Clashfern. This

offence or in a subsequent proviso and whether the

case emphasises the need for absolute clarity in the

offence was triable summarily or on indictment and

terms of the analyst's certificate founded on by the

would be discharged on the balance of probabilities;

prosecution in cases of this sort . Decision of the Court

and that where a linguistic construction did not indicate

of Appeal (Criminal Division) [1986] Q.B. 125; [1986]

clearly on whom the burden of proof should lie the

2 W.L.R. 225; [1986] 1 All E.R. 184 reversed.

court might look to other considerations to determine

See also the case of R v Lloyd Elliot (1987) 24 JLR 291

the intention of Parliament such as the mischief at

(CA).

practical

R v Lloyd Elliot (1987) 24 JLR 291 (CA): The

considerations such as, in particular, the ease or

appellant was convicted of unlawfully holding himself

difficulty for the respective parties of discharging the

out as being registered under the Opticians Act, not

burden of proof . (2) Allowing the appeal, that, on its

being so registered. At the trial, S.G., the Assistant

true construction regulation 4(1) of the Misuse of Drugs

Registrar General gave evidence that on a perusal of the

Regulations 1973 dealt not with exceptions to what

Register there was no record that the appellant was

would otherwise be unlawful but with the definition of

registered under the Act. The trial judge found that the

the essential ingredients of an offence and that, as it was

prosecution had established a prima facie case that the

an offence to possess morphine in one form but not an

appellant was not registered and the appellant had not

offence to possess it in another form, it had been for the

discharged the burden of proving that he was so

which

the

provision

was

aimed

and

19

Law of Evidence notes compiled by Yvette Brown 2010-2011

registered. On appeal on the grounds that (i) the burden

TOPIC:
BURDEN AND STANDARD OF PROOF CONTINUED
LEGAL AND EVIDENTIAL BURDEN
In order to determine the facts in issue one must look to the

of proving that the appellant was not registered laid on

the Crown, and (ii) S.G.'s evidence was inadmissible as
it was hearsay. Held: (i) the clear intent of the Act is to

offence and the elements of the offence . If the defendant

prohibit persons from practising optometry unless they

pleads guilty then there are no facts in issue. There is no need

are duly qualified. (ii) therefore proof of qualification to

to prove guilt (by prosecution) or innocence (by the defendant/

perform certain professional services rests on the

accused).

person holding himself to be so qualified. (iii) the

register is a public document and as such its contents

Trial is necessary only because there are facts in issue. If the

may be proved by secondary evidence, usually a

defendant/ accused pleads not guilty, the prosecution has to call

certified copy of the relevant record. (iv) The Assistant

witnesses. After the prosecution calls it witnesses it closes its

Registrar General gave sworn and unchallenged

case. The defence does not have to call witnesses. If it chooses

testimony to the effect that the register was perused by

to call witnesses, then it closes its case after those witnesses

her and the appellant's name did not appear therein; it

have given evidence.

was evidence not positively of an entry but negatively

In a trial the judge acts as a tribunal of law. It is the judge who

of the state of the record, that is the omission of a

decides what is admissible and what is inadmissible. The jury

particular entry. As secondary evidence it was in no

weighs the evidence. The weight of evidence is a question of

way inferior to a certificate. (v) evidence tendered by

fact for the jury. The prosecutions burden of proof (the legal

the Crown as to non-registration was sufficient to

burden) starts and runs throughout the entire case until when

establish a prima facie case. Appeal dismissed.

the jury decides when they have discharged their burden.

Conviction affirmed.
Date: 08 October 2010
20

Law of Evidence notes compiled by Yvette Brown 2010-2011

Evidential burden : when the prosecution closes its case, the

its strength or weakness depends on the view to be

judge decides whether or not they have established a prima

taken of a witness's reliability or on other matters which

facie case.
What is the test applied by a judge: the judge is to decide

are generally speaking within the province of the jury

and where on one possible view of the facts there is

whether the prosecution discharged their evidential burden ?

evidence on which a jury could properly come to the

The case of R v Galbraith [1981] 1 WLR 1039 sets out the

conclusion that the accused is guilty, then the judge

test. Read this case and the notes on the hand-out.

should allow the matter to be tried by the jury . R v

The defendant/ accused does not have a legal burden. If they

Barker (1977) 65 Cr App R 287 applied, R v

have to raise a defence they only have an evidential burden.

Mansfield [1978] 1 All ER 134 not followed.

This principle is subject two exceptions.

R v Galbraith [1981] 1 WLR 1039: [1981] 2 All ER

Standard of proof: evidential burden does not carry a standard

of proof. At the end of trial the judge decides whether the

1060: On a submission of no case to answer at the end

prosecution has discharged its legal burden, but the judge also

of the prosecution case, the trial judge should stop the

assists them on what level the evidence must have reached.

case and direct an acquittal if there is no evidence that

the crime alleged against the accused was committed by

Reverse Burdens: The two exceptions are:

i) where the

him. However, if there is some evidence but it is of a

defence pleads insanity, and ii) where statute imposes a legal

tenuous character (eg because of inherent weakness or

burden on the accused.

vagueness or because it is inconsistent with other

i.

evidence), it is the judge's duty, on a submission of no

Insanity: the defendant has a legal burden to

prove insanity (this is the only common law

case, to stop the case if he comes to the conclusion that

the prosecution evidence, taken at its highest, is such

ii.

that a jury properly directed could not properly convict

exception).
Statute: statute may also impose a legal burden
on the defendant. Statute creates an offence e.g.

on it; but, where the prosecution evidence is such that

21

Law of Evidence notes compiled by Yvette Brown 2010-2011

Dangerous Drug Act, and outlines how many

authority, the case shall be given a fair hearing within a

ounces of possession will cause a person to be

reasonable time.
(3) All proceedings of every court and proceedings

deemed dealing in illegal drugs and therefore is

relating to the determination of the existence or the

a person guilty of the offence.

a) Does statue puts an express or

extent of a person's civil rights or obligations before

implied reverse burden

b) Is the reverse burden a legal or

any

court

or

other

authority,

including

the

announcement of the decision of the court or other

evidential burden
c) In the case of a reverse legal burden

authority, shall be held in public.

(4) Nothing in subsection (3) of this section shall

is it a breach of the constitution.

d) If so can it be saved by a proviso in

prevent any court or any authority such as is mentioned

in that subsection from excluding from the proceedings

the constitution

persons other than the parties thereto and their legal

representativesa. in interlocutory civil proceedings; or
b. in appeal proceedings under any law relating to

Read section 20 of the Constitution - Jamaica

(1) Whenever any person is charged with a criminal

income tax; or
c. to such extent as the court or other authorityi.
may consider necessary or expedient in

offense he shall, unless the charge is withdrawn, be

afforded a fair hearing within a reasonable time by an
independent and impartial court established by law.
(2) Any court or other authority prescribed by law for

circumstances where publicity would

the determination of the existence or the extent of civil

prejudice the interests of justice; or

may be empowered or required by law to

ii.

rights or obligations shall be independent and impartial;

do so in the interests of defence, public

and where proceedings for such a determination are

safety, public order, public morality, the

instituted by any person before such a court or other

welfare of persons under the age of

twenty-one years or the protection of the
22

Law of Evidence notes compiled by Yvette Brown 2010-2011

private lives of persons concerned in the

carry out the examination of such witnesses to

proceedings.
(5) Every person who is charged with a criminal

testify on his behalf before the court on the

same conditions as those applying to witnesses

offence shall be presumed to be innocent until he is

proved or has pleaded guilty: Provided that nothing

called by the prosecution; and

h. shall be permitted to have without payment the

contained in or done under the authority of any law

assistance of an interpreter if he cannot

shall be held to be inconsistent with or in contravention

understand the English language.

(7) No person shall be held to be guilty of a criminal

of this subsection to the extent that the law in question

offence on account of any act or omission which did

imposes upon any person charged as aforesaid the

not, at the time it took place, constitute such an offence,

burden of proving particular facts.

(6) Every person who is charged with a criminal

and no penalty shall be imposed for any criminal

offence d. shall be informed as soon as reasonably

offence which is severer in degree or description than

the maximum penalty which might have been imposed

practicable, in a language which he understands,

for that offence at the time when it was committed.

(8) No person who shows that he has been tried by any

of the nature of the offence charged;

e. shall be given adequate time and facilities for

competent court for a criminal offence and either

the preparation of his defence;

f. shall be permitted to defend himself in person or

convicted or acquitted shall again be tried for that

offence or for any other criminal offence of which he

by a legal representative of his own choice;

g. shall be afforded facilities to examine in person

could have been convicted at the trial for that offence

or by his legal representative the witnesses

save upon the order of a superior court made in the

called by the prosecution before any court and

course of appeal proceedings relating to the conviction

to obtain the attendance of witnesses, subject to

or acquittal; and no person shall be tried for a criminal

the payment of their reasonable expenses, and

23

Law of Evidence notes compiled by Yvette Brown 2010-2011

offence if he shows that he has been pardoned for that

proceedings before a court in which a solicitor has no

offence:
Provided that nothing in any law shall be held to be

right of audience, a solicitor who is so entitled.

Date: 15 October 2010

inconsistent with or in contravention of this subsection

LEGAL AND EVIDENTIAL BURDEN CONTINUED

by reason only that it authorises any court to try a

Reverse Burden
At common law the prosecution has the legal burden and the

member of a defence force for a criminal offence

notwithstanding any trial and conviction or acquittal of

defence has the evidential burden. Where a defendant raises the

that member under service law; but any court so trying

defence of insanity, an accused having raised the defence of

such a member and convicting him shall in sentencing

insanity will now have a legal burden. A statute which creates

him to any punishment take into account any

an offence may impliedly or expressly impose a legal burden

punishment awarded him under service law.

(9) Nothing contained in or done under the authority of

on the accused:
Express wording in statute: any person in possession of

any law shall be held to be inconsistent with or in

10 oz. of cocaine is deemed to be dealing in cocaine

contravention of any provision of this section other than

and is guilty of an offence unless the accused proves the

subsection (7) thereof to the extent that the law in

contrary. The prosecution must prove possession. The

question authorises the taking during a period of public

accused must proves he is not dealing i.e. he is guilty of

emergency of measures that are reasonably justifiable

the offence unless he proves contrary.

Implied wording in statute: Any person in possession of

for the purpose of dealing with the situation that exists

during that period of public emergency.
(10) In paragraphs (c) and (d) of subsection (6) of this

an offensive weapon without lawful authority or excuse

is guilty of an offence.

section "legal representative" means a barrister entitled

For Reverse burden generally see hand out.
When will the court imply a reverse burden on the

to practice as such in Jamaica or, except in relation to

accused?
24

Law of Evidence notes compiled by Yvette Brown 2010-2011

Does a statute create a summary offence, triable on

principle operated at common law that provided an exception

information in a magistrates court?

to the fundamental rule that the prosecution must prove every

element of the offence charged. The exception is limited to

Implied Statutory exceptions: See if statute makes it a

offences under enactments that prohibits the doing of an act

summary offence i.e. an offence triable by information in the

save in specified circumstances, or by persons of specified

R.M. Court.
The Liquor Act - any person who sells liquor without a spirit

classes or with specified qualifications, with the licence or

licence is guilty of an offence and summary conviction and is

permission of specified authorities. Where the accused seeks to

liable to a maximum of 3 months imprisonment or a fine of

rely on such proviso, exemption, excuse or qualification, he

$3000.

will bear a legal burden.

An information: document setting out the charge which

R v Hunt [1987] AC 352- the defendant was prosecuted for

initiates the prosecution.

Indictment: document setting out the charge of an indictable

possession of morphine under the Misuse of Drugs Act 1971,

offence . Justice of the Peace Jurisdiction Act governs

provides that s 5 shall have no effect in relation to any

information.

preparation of morphine containing not more than 0.2 percent

Where section 13 Justice of the Peace Jurisdiction Act does

of morphine. The House of Lords held that the substance in

not apply and the accused falls in an exception then the person

question contained more than 0.2 percent morphine. Lord

is not guilty; but the person must prove he falls in the

Griffiths gave the following general guidance.

if the linguistic construction of the statute did not

s 5. The Misuse of Drugs Regulations 1973, Sch 1, para 3,

exception.

clearly indicate on whom the burden should lie the

R v Edwards [1975] QB 27 by implication it was for him to

courts should look to other considerations to determine

prove he had a licence. He therefore had a legal burden. The

the intention of Parliament, such as the mischief at

position on trial by indictment was set out in R v Edwards

which the Act was aimed and practical considerations

[1975] QB 27, where the Court of Appeal held that a similar

25

Law of Evidence notes compiled by Yvette Brown 2010-2011

affecting the burden of proof and, in particular, the ease

from practising optometry unless they are duly

or difficulty that the respective parties would encounter

qualified. (ii) therefore proof of qualification to perform

in discharging the burden.

certain professional services rests on the person holding

himself to be so qualified. (iii) the register is a public

R v Lloyd Elliot [187] 24 JLR 291- Standard of proof: when a

document and as such its contents may be proved by

statute bears a legal burden of proof the accused is judged on a

secondary evidence, usually a certified copy of the

balance of probabilities. Burden of proof equal a burden to

relevant record. (iv) The Assistant Registrar General

prove facts. The proviso says a reverse burden does not negate

gave sworn and unchallenged testimony to the effect

a presumption of innocence.
R v Lloyd Elliot [187] 24 JLR 291- The appellant was

that the register was perused by her and the appellant's

name did not appear therein; it was evidence not

convicted of unlawfully holding himself out as being

positively of an entry but negatively of the state of the

registered under the Opticians Act, not being so

record, that is the omission of a particular entry. As

registered. At the trial, S.G., the Assistant Registrar

secondary evidence it was in no way inferior to a

General gave evidence that on a perusal of the Register

certificate.(v) evidence tendered by the Crown as to

there was no record that the appellant was registered

non-registration was sufficient to establish a prima facie

under the Act. The trial judge found that the prosecution

case.

had established a prima facie case that the appellant

was not registered and the appellant had not discharged
the burden of proving that he was so registered. On
appeal on the grounds that (i) the burden of proving that
the appellant was not registered laid on the Crown, and
(ii) S.G.'s evidence was inadmissible as it was hearsay.
Held: (i) the clear intent of the Act is to prohibit persons
26

Law of Evidence notes compiled by Yvette Brown 2010-2011

probabilities. The judge is only required to be satisfied that the

partys case is more probable than the other, see the case of
Date: 22 October 2010

Miller v Minister of Pensions [1947] 2 All ER 372 (note pp

Mr Davis conducted general discussion in lecture in

373-374) per Denning, J (as he then was) explained the

absence of justice Morrison.

distinction. The standard of proof that the prosecution must

meet was described in Miller v Minister of Pensions [1947] 2

Topic: Reverse Burdens completed hand out in lecture (See

All ER 372 in the following terms: It need not reach certainty,

hand out, note boxes are labelled 1 through 15 . Also note

but must carry a high degree of probability. Proof beyond

that we later received a completed version of the hand out

reasonable doubt mean proof beyond the shadow of doubt. The

with correctly filled in blank boxes.

law would fail to protect the community if it admitted fanciful

The two broad labels on hand out are as follows Evidence

possibilities to deflect the course of justice. If the evidence is

that will not be admitted and Evidence that will be

so strong against a man as to leave only a remote possibility in

admitted.

his favour which can be dismissed with the sentence of course

it is possible, but not in the least probable, the case is proved

Date: 29 October 2010

beyond reasonable doubt, but nothing short of that will suffice.

Miller v Minister of Pensions [1947] 2 All ER 372:

STANDARD OF PROOF
Who bears the burden. That was topic one. Now to what

The applicants husband served in the army from 1915

standard do we look to see if a fact is proved. There is a

until his death in 1944. He served in the Middle East

distinction between standard of proof in civil cases and

from 1940 until 1944, when he became hoarse and

standard of proof in criminal cases. In criminal cases the facts

found difficulty in eating. He reported sick and his

are not proved until the jury is satisfied beyond a reasonable

disease was diagnosed as cancer of the gullet. He died

doubt by evidence from the prosecution as to the accuseds

within a month of reporting sick. The tribunal rejected

guilt. The civil standard of proof is on a balance of

the applicants claim for the higher pension granted to

27

Law of Evidence notes compiled by Yvette Brown 2010-2011

widows of soldiers whose death was due to war service:

would fail to protect the community if it admitted

Held The tribunal had properly directed itself as to

fanciful possibilities to deflect the course of justice. If

the burden of proof, and the conclusion of fact drawn

the evidence is so strong against a man as to leave only

by the tribunalthat the whole of the probabilities were

a remote possibility in his favour which can be

that war service played no partcould reasonably be

dismissed with the sentence of course it is possible,

drawn from the primary facts having regard to the

but not in the least probable, the case is proved beyond

burden of proof. Per curiam: In cases falling under art

reasonable doubt, but nothing short of that will suffice.

In cases falling under art 4(2) and art 4(4) (which are

4(2) and art 4(3) of the Royal Warrant Concerning

generally cases where the man was fit on his discharge,

Retired Pay, Pensions, etc, 1943 (which are generally

but incapacitated later by a disease) there is no

cases where the man was passed fit at the

compelling presumption in his favour, and the case

commencement of his service but is later afflicted by a

must be decided according to the preponderance of

disease which leads to his death or discharge) there is a

probability. If at the end of the case the evidence turns

compelling presumption in the mans favour which

the scale definitely one way or the other, the tribunal

must prevail unless the evidence proves beyond

must decide accordingly, but if the evidence is so

reasonable doubt that the disease was not attributable to

evenly balanced that the tribunal is unable to come to a

or aggravated by war service, and for that purpose the

determinate conclusion one way or the other, then the

evidence must reach the same degree of cogency as is

man must be given the benefit of the doubt. This means

required in a criminal case before an accused person is

that the case must be decided in favour of the man

found guilty. That degree is well settled. It need not

unless the evidence against him reaches the same

reach certainty, but it must carry a high degree of

degree of cogency as is required to discharge a burden

probability. Proof beyond reasonable doubt does not

in a civil case. That degree is well settled. It must

mean proof beyond the shadow of a doubt. The law

carry a reasonable degree of probability, but not so high

28

Law of Evidence notes compiled by Yvette Brown 2010-2011

as is required in a criminal case. If the evidence is such

scientific origin of the disease is known, there is or

that the tribunal can say: We think it more probable

should be little difficulty in stating the causes of the

than not, the burden is discharged but, if the

disease and of any aggravation of it, but the cases

probabilities are equal, it is not.

It is useless for a medical man to give an opinion that a

where the aetiology is unknown or imperfectly known

present great difficulty. If nothing else appears except

disease is or is not attributable to, or aggravated by, war

that the cause is unknown, the only proper conclusion is

service without giving his reasons. Such an opinion

that the Minister cannot discharge the burden of proof

should be disregarded by a tribunal because it involves

because the unknown cause may be a cause incidental

not only his scientific knowledge, but also his views on

to war service.

causation, the meaning of attributable, war service,

It is important to note that in a civil case the judge is not bound

and so forth, all of which are matters for the tribunal

to find for one party merely because he finds that partys story

and not for him. Such an opinion is merely his view as

more probable, see the case of Rhesa Shipping Co v

to the way the tribunal ought to decide, and is an

Edmunds [1985] 2 All ER 712.

Rhesa Shipping Co v Edmunds [1985] 2 All ER 712.

opinion which, if rightly formed, could only be drawn

from the same premises as those from which the

The plaintiffs were the owners of a ship built in 1952,

tribunal are to determine the matter. To be of value, a

the hull and machinery of which were insured against

medical opinion should not be in general terms such as

the perils of the sea under policies of insurance issued

to usurp the function of the tribunal, but should point

by the defendant underwriters. By 1976 the ship had

out the probable or possible causes of the disease and of

become very seriously run down, the ship as a whole

any aggravation of it, giving the degree of probability,

and the shell-plating in particular being in a generally

and then leaving it to the tribunal to decide whether or

wasted condition. In August 1978 during a voyage

not on the facts of the particular case the claim should

be allowed.

through the Mediterranean the ship sank in good

In cases where the aetiology, ie, the

29

Law of Evidence notes compiled by Yvette Brown 2010-2011

weather and calm seas off the Algerian coast as the

balance of probabilities, was the proximate cause of the

result of water entering through a large hole in the

loss. He accordingly gave judgment for the shipowners

shell-plating on her port side and flooding the engine-

on their claim. The underwriters appealed to the Court

room and the two after holds, thereby making it

of Appeal, which dismissed their appeal. The

inevitable that the ship would sink. The shipowners

underwriters appealed to the House of Lords.

Held - Where a shipowner alleged total loss of his ship

brought actions against underwriters claiming under the

by perils of the sea the burden of proving, on the

policies for total loss of the ship by perils of the sea.

balance of probabilities, that perils of the sea was the

The shipowners contended that the proximate cause of

real cause of the loss was, and remained throughout, on

the ship's loss was a collision with a submerged

the shipowner even if the insurer chose to put forward

submarine. The underwriters contended that the cause

another explanation for the loss dependent on a risk

of the loss was the prolonged wear and tear of the ship's

against which the shipowner was not insured. On the

hull over many years, resulting in her shell-plating

facts, once it had been shown that the ship had been

opening up under the ordinary action of wind and

sunk through water entering through her shell-plating

waves without collision with an external object. The

the burden of proof had been on the shipowners to show

ship could not be examined because it had sunk in deep

with particularity what peril of the seas, if any, could be

water and the judge was unable to make any finding on

shown to have created the hole. Having regard to the

the question whether the ship was seaworthy. The judge

judge's finding that of the two theories put forward as

ruled out the underwriters' wear and tear explanation

the proximate cause of the loss one was virtually

for the loss and although he regarded the shipowners'

impossible and the other was extremely improbable,

explanation of a submerged submarine as extremely

neither the judge nor the Court of Appeal were justified

improbable, since no submarine was seen before or

in drawing the inference that there had been a loss by

after the casualty, he found that that explanation, on the

perils of the sea. The correct conclusion was that the

30

Law of Evidence notes compiled by Yvette Brown 2010-2011

true cause of the loss was in doubt and that the

indictment had actually been paid into a bank on which

shipowners had failed to discharge the burden of proof

some worthless cheques had been drawn, and,

placed on them. It followed therefore that the appeal

therefore, there was no intent to defraud. In directing

would be allowed (see p 714 a to c f to j, p 716 g h, p

the jury on intent to defraud, the trial judge said: "If a

718 f to h and p 719 g to j, post). Dictum of Scrutton LJ

false statement, false to the knowledge of the person

in Cia Martiartu v Royal Exchange Assurance Corp

making it, is made and by this means money is obtained

[1923] 1 KB at 657 applied.

... the fact that the man may, and undoubtedly would if
he got the chance, repay the money is immaterial ... It is

The main problem in a criminal cases is how should the judge

immaterial what he intended to do with the money if he

explain what he means by proof of reasonable doubt to the jury.

obtained it by means of pretences that are false, with

It is now accepted that the jury is to be told that the evidence

intent to defraud." By that direction, it was argued, the

from the prosecution must satisfy them that they feel sure of

question of intent to defraud was withdrawn from the

the guilt accused, see the case of R V Kritz [1950] 1 QB 82,

jury. It was further contended for the appellant that the

also R v Bromfield [1965] 8 WIR 273.

R V Kritz [1950] 1 QB 82; [1949] 2 All ER 406: The

trial judge, in directing the jury on the onus of proof,

appellant obtained a sum of 70,000 from a bank by

did not use the phrase that they must be "satisfied

drawing large sums against uncleared accommodation

beyond reasonable doubt." Held - (i) the direction given

cheques which he knew to be worthless. He falsely

by the trial judge on intent to defraud conformed with

represented to the manager that he was engaged in

the direction given by Channell J in R v Carpenter

whisky transactions on a large scale and showed him

(1911) (25 Cox CC 618), which, in the opinion of the

cases of whisky. It was contended at the trial that the

court, was the locus classicus on the point and should

bank manager was "in the business from the start" with

always be given to juries in cases of intent to defraud. R

the appellant, and that two cheques mentioned in the

v Pickup (1931) (22 Cr App Rep 186), distinguished.

31

Law of Evidence notes compiled by Yvette Brown 2010-2011

(ii) when directing a jury on the onus of proof resting

and no substantial miscarriage of justice had occurred.

on the prosecution, no particular form of wording need

Appeal dismissed.

be used and any direction which has the effect of

The case of Walter v R [1969] 2 AC 26; 13 WIR 354 (Privy

conveying to a jury what is their duty is sufficient.

Council case from Jamaica) examined what the judge told the

(iii) the summing-up at the trial of the appellant being

jury regarding proof of reasonable doubt. The Privy Council

satisfactory and correct, the appeal must be dismissed.

R v Bromfield [1965] 8 WIR 273: On the trial of the

held that the direction was passable: the standard of proof for
the accused when he bears the legal burden e.g. insanity, is on a

appellant on a charge of murder the trial judge in

balance of probability.

directing the jury on the standard of proof required of

the prosecution said:... The requisite standard is that

Walter v R [1969] 2 AC 27: Where in a criminal trial for

the prosecution must prove the guilt of the accused

murder the judge in the course of his summing-up

person beyond a reasonable doubt-not a mere flimsy

directed the jury that "a reasonable doubt is that quality

doubt or fanciful doubt; that is, the evidence should

and kind of doubt which, when you are dealing with

lead you to such a standard of proof or state of mind as

matters of importance in your own affairs, you allow to

you would act upon in a matter of great consequence in

influence you one way or the other" and the Court of

your own affairs... Held: this was postulating a

Appeal of Jamaica confirmed the conviction and refused

subjective test rather than the objective standard which

the law demanded.

the petitioner leave to appeal against his conviction for

The importance of correctly

murder. Held, dismissing the petitioner's petition, that in

directing a jury on this vital question of the onus of

the context of "doubt", which could not be other than

proof in a criminal case was of paramount importance,

personal to the doubter, it was meaningless to talk of

but on the facts of the case, if the jury had been

doubt as "objective" and otiose to describe it as

correctly directed as to the standard of proof then

"subjective"; that it was best left to the judge's discretion

inevitably they would have returned the same verdict,

32

Law of Evidence notes compiled by Yvette Brown 2010-2011

to choose the most appropriate set of words in which to

him on their behalf that the lathe was Soag re-

make the jurors, whom he had had an opportunity to

conditioned. The action was based alternatively on

observe, understand that they must not return a verdict

contractual warranty or fraudulent misrepresentation.

against a defendant unless they were sure of his guilt, and

At the trial it was found that there was no contractual

that it was the effect of the summing-up as a whole that

warranty because the misrepresentation, if made, was

mattered and not the particular formula of words used by

not intended to be contractual, but that, if the

the judge in his direction to the jury.

representation were proved to have been made, fraud

would be established. On the question of fact

Proof of a crime in a civil suit for example where an employee

whether the misrepresentation was made it was

accused of stealing from his employer is dismissed due to his

found that, if the question were determined on the

dishonesty, the ex-employee sues on the basis of the applicable

civil standard of proof (ie, on the balance of

standard of proof. Here it is the ordinary civil standard of proof

probabilities), the representation was proved, but

that is required on a balance of probabilities. See the case of

that, if the question were determined on the criminal

Hornal v Neuberger Products Ltd [1957] 1 QB 247; [1956]

standard of proof (ie, on the basis of proof beyond

3 All ER 970 and Paramount Betting v Brown [1971] 12

reasonable doubt), the representation was not proved.

JLR 342/ 392.

Hornal v Neuberger Products Ltd [1957] 1 QB 247;

The judge decided that the misrepresentation was

proved but no damage was suffered. Held: In

[1956] 3 All ER 970 :

The plaintiff acquired a capstan lathe from the

determining the question of fact, viz, whether the

defendants under a hire-purchase arrangement with a

representation had been made, the same standard of

finance company. The lathe proved defective, and the

proof should be applied whether the cause of action

plaintiff brought an action for damages against the

was contractual warranty or fraud, and, the standard

defendants, alleging that it had been represented to

of proof applicable was the civil standard of a

33

Law of Evidence notes compiled by Yvette Brown 2010-2011

preponderance of probability, which, however, was

that betting shop in respect of that race had to be

not an absolute standard, since within its the degree

placed in a bag which had to be locked before 1.30

of probability required to establish proof might vary

pm and later sent to the defendant's betting office in

according to the gravity of the allegation to be

Kingston. The bag was fitted with a time mechanism

proved; in the present case the judge had not

pre-set at 1.30 pm, so that if the bag were locked

misdirected himself on the question of proof, but, as

after that time it would be recorded on the time

some

fraudulent

mechanism. When the bag was opened later that day

misrepresentation, the plaintiff was entitled to

at Kingston, the time mechanism showed that the bag

judgment.

had been locked at 1.40 pm, ten minutes after the

damage

flowed

from

the

first race was scheduled to start. The horse Guinie

Paramount Betting v Brown [1971] 12 JLR 342/

Wind won that race and the plaintiff's demand for

392.On 27 March 1967, the plaintiff effected two

payment of winnings on the bets he had placed

betting transactions in a liquor bar with the defendant

through OH was refused by the defendant upon the

through OH, the husband of DH, an agent of the

ground that the bag containing the bets in that race

defendant who operated one of the defendant's

had not been locked prior to the time scheduled for

licensed betting agencies, situated at Bog Walk, St

the race to start. The plaintiff brought a claim in the

Catherine. The transactions related to the first race at

resident magistrate's court against the defendant

a horse-racing meeting held at Caymanas Park on

claiming payment of an amount as winnings on the

that day. The race was scheduled to be run at 1.30

bets. The defendant resisted the claim upon a number

pm. The plaintiff placed the two bets on a horse

of grounds which included the allegation that the bets

named Guinie Wind to win and received from OH

were effected in fraud of the defendant by reason of

duplicate vouchers evidencing the transactions. The

original vouchers relating to all of the bets effected at
34

Law of Evidence notes compiled by Yvette Brown 2010-2011

their having been made after the race had been run

probability, the degree of probability required being

and the result known.

A number of circumstances were relied on by the

commensurate with the occasion; dictum of MORRIS

LJ, in Hornal v Neuberger Products Ltd [1957]

defendant in proof of that allegation. The resident

applied;(ii) the defendant had discharged the burden

magistrate came to the conclusion that the defendant

of proving a fraudulent conspiracy on the part of the

had not discharged the burden of proof, which he

plaintiff and OH; (iii) the effect of the Betting,

described as a heavy one requiring strict proof, that

Gaming and Lottery Act 1965, No 34 [J], was to

there was a conspiracy between the plaintiff and OH

render unenforceable betting transactions effected at

to defraud the defendant. He therefore gave judgment

premises other than those in respect of which a

for the plaintiff. On appeal, it was submitted on

betting office licence is for the time being in force or

behalf of the defendant that on the evidence adduced

those within the statutory exceptions provided by s 4

before the resident magistrate, the defendant had

(2) of that Law. Appeal allowed. Judgment entered

discharged the burden of proof required to show that

for defendant.

the bets were effected by the plaintiff in fraud of the

The standard of proof in matrimonial cases-No fault divorce:

defendant. It was also submitted that the betting

Not really important but note that where there is no fault

transactions having been effected in a liquor bar,

divorce then the standard of proof is beyond a reasonable doubt

premises not licensed under the provisions of the

- Williams v Williams [1962] 3 All ER 441.

The case if Barrow v Barrow [1968] 12 WIR 440 applies the

Betting, Lottery and Gaming Law 1965, No 34 [J]

for the purpose of effecting betting transactions, were

criminal standard in case of desertion. Also see the case of

unenforceable. Held: (i) in a civil case when an

Blythe v Blythe [1966] 3 All ER 524 (citation seems

accusation of fraudulent conspiracy is made, the

incorrect), in this case the view was expressed that the civil

standard of proof necessary to sustain such an

standard of care should apply in all areas of divorce but that

accusation is the civil standard of a preponderance of

35

Law of Evidence notes compiled by Yvette Brown 2010-2011

was said obiter. Shortly after no fault divorce came into play

to inflict pain on his wife by his acts or an unwarrantable

and as such there are not many authorities on these points.

indifference to their consequences on her; accordingly the

wife in the present case was not entitled to a decree of

The standard of proof in disciplinary proceedings: A lawyer

divorce on the ground of cruelty.Per Willmer LJ (Davies

was accused of personal misconduct; the question was asked to

LJ concurring): where the conduct alleged is of a physical

what standard must it be proved by his accusers? The tendency

nature, eg, where there have been violent assaults causing

in serious charges against professionals has been to apply the

criminal standard, see the case of Bhandari

injury to the complaining spouse, a defence to a petition

v Advocates

for divorce on the ground of cruelty based on absence of

Committee [1956] 3 All ER 742, see also Re Brone [1972] 19

knowledge in the offending spouse that what he is doing is

WIR 1.

wrong must be much more difficult to establish, especially

Williams v Williams [1962] 3 All ER 441: A husband

where the party charged knew the nature and quality of his

repeatedly made false charges against his wife of

acts .
Barrow v Barrow [1968] 12 WIR 440: The husband

committing adultery with other men, to such an extent as

petitioned for divorce on the ground of desertion. He was a

to injure her health and to amount to cruelty, but it was

Barbadian by birth and in 1916 left the Island and went to

found that, owing to disease of the mind, although he

America, intending eventually to return to his homeland.

knew the nature and quality of his acts, he did not know

When he left Barbados in 1916, he was friendly with the

that what he was doing was wrong. Held (Donovan LJ

appellant and he returned to Barbados for a short period in

dissenting) It was a valid defence that the husband did

1920 and married her. The wife after the marriage

not know that what he was doing was wrong, since it was

continued to live in Barbados while the husband returned

impossible to impute to a man who was unable to

to America. He came to Barbados on short visits in 1928,

appreciate, through disease of the mind, that what he was

1963, and 1967.These facts were not in dispute but the

doing was wrong either an actual or a presumed intention

husband and the wife in their evidence gave stories which

36

Law of Evidence notes compiled by Yvette Brown 2010-2011

contradicted each other in other respects. According to the

the husband. The trial judge accordingly pronounced a

husband even before their marriage he requested the

decree nisi in his favour and the wife appealed. Held: (i)

appellant to join him in New York. When she did not do so

that the trial judge in reaching the conclusion that

he returned and married her. After he returned to New

desertion was proved, proceeded on the basis that the

York, he invited her to join him several times and he sent

matrimonial home was in New York; but that the record

her the passage money on more than one occasion. She did

did not disclose any admission to this effect by the wife

not join him and after 12 to 15 years he stopped asking her

nor did the circumstances support such an inference or

to join him because he thought it was useless to try any

finding; the trial judge had therefore misdirected himself;

further. According to the wife the respondent sent for her

(ii) that even assuming that the wife had agreed to go to

before the marriage but stopped asking her from going.

New York to live with the husband and had accepted New

Instead, he came back to Barbados and married her. He

York as the matrimonial home, the husband had not

never asked her to go to New York after 1920 nor did he

proved that the wife unreasonably refused to go since, in

ever send her any passage money. The trial judge in his

the circumstances, it should have been clearly established

judgment stated that it was common ground that the

that the invitation to the wife extended to the children; (iii)

respondent had never cohabited with the petitioner at the

that the trial judge erred when he determined the issue of

matrimonial home in the USA and that at no time during

desertion on a preponderance of probability since

the marriage had the appellant ever left the Island to join

desertion as a ground of divorce must be proved beyond

the respondent at the matrimonial home. On the basis of

reasonable doubt or, put differently, must be clearly or

the common ground between the parties and having

strictly proved.

heard and seen the witnesses, the trial judge felt satisfied

Bhandari v Advocates Committee [1956] 3 All ER 742:

that the material aspect of the conflicts of fact should, by

In every allegation of professional misconduct involving

a preponderance of probability, be resolved in favour of

an element of deceit or moral turpitude, it is the duty of the

37

Law of Evidence notes compiled by Yvette Brown 2010-2011

professional domestic tribunal investigating the allegations

that the Supreme Court was not the proper authority to be

to apply a high standard of proof and not to condemn on a

moved and sought an amendment to delete the reference to

mere balance of probabilities. Appeal dismissed. Notes:

the Supreme Court. It was contended that so to do would be

The disciplinary procedure followed under the Advocates

to amend in order to give the court jurisdiction. Held: that

Ordinance, 1949 (No 55 of 1949, in Kenya is similar to

taking the notice as a whole there seemed to be no doubt

that followed in England under the Solicitors Act, 1888,

whatever that it was filed in the High Court to be dealt with

prior to the Solicitors Act, 1919, s 5 now replaced by the

in the High Court. Consequently, there was no substance in

Solicitors Act, 1932, s 5. The principle stated by the Court

the objection and an amendment would be allowed. With

of Appeal for Eastern Africa and approved by the Judicial

regard to the substantive matter, the complaints against the

Committee (see pp 744, 745, post) may, however, be

respondent were of improper conduct in: (a)

regarded as having general application to all disciplinary

account for and repay to his client, Vernon Sylvester Payne,

tribunals concerned with professional conduct.

the sum of $2,500.00 received by the firm of Messrs.

failing to

Browne, Husbands & Co towards the purchase of land

Re Brone [1972] 19 WIR 1: The Attorney-General sought

belonging to Ruby Martin; and, (b) failing to account for

to move for an order that John Philip Browne be removed

and pay over to his client, Herman Wesley Daniel, executor

from the Roll of Solicitors by reason of his misconduct. An

of the will of Edward Adolphus Daniel, the sum of

objection was taken in limine to the form of the notice of

$15,772.80, the balance due to the estate from monies

motion on the ground that it referred to the motion being in

received by the firm of Messrs. Browne, Husbands & Co. It

the Supreme Court of Judicature. It was submitted that the

was submitted on behalf of the respondent that before an

Supreme Court comprised the Court of Appeal and the High

order cold be made to strike him off the evidence must show

Court, that the proper court to be moved was the High Court,

clearly that there had been a fraudulent misappropriation of

and that an order of the Supreme Court made in terms of the

money on his part, or some fraudulent conduct by him. It

motion would be a nullity. The Attorney-General conceded

38

Law of Evidence notes compiled by Yvette Brown 2010-2011

was submitted by the Attorney-General that each case must

If the evidence is such that the tribunal can say; We

be decided on its own particular facts and that in the instant

think it more probable than not, the burden is

case the affidavits contained material on which the court

discharged, but, if the probabilities are equal, it is not.

could hold that there was misappropriation: payments to the

There are, however, some exceptional cases where the criminal

respondent, requests for the return of the money paid, failure

standard of proof is required:

a) Contempt of court (Re Brammblevale Lts [1970] Ch

to account on the part of the respondent and failure to repay

or pay over. Held: that the respondent was under a duty to

128, CA Dean v Dean [1987] 1 FLR517, CA)

b) Where a persons livelihood is at stake (R v Milk

pay over to his clients the amounts set out in the notice of

Marketing Board, ex p Austin, The Times 21 March

motion; further, the uncontroverted facts showed that he had

1983);
c) Allegations of misconduct amounting to a criminal

no valid claim to the money. His failure to pay over after

numerous requests, his unfulfilled promises to pay, the

offence in disciplinary hearings (Re A Solicitor [1993]

absence of any explanation, all went to show that the only

QB 69, DC; R (on the application of S) v Governing

logical inference to be drawn was that he either used the

Body of YP School [2003] EWCA Civ 1306)

d) Where statute requires the criminal standard of proof

money or, if he still had it, he refused to pay it over. The

respondent's failure to account and failure to pay over in

(Judd

these circumstances constituted improper conduct on his part

Insurance [1966] 2 QB 580)

and conduct unbefitting a solicitor of the Supreme Court.

Application to amend allowed.

v Minister of Pensions

and

National

TOPIC: HEARSAY EVIDENCE

General note : Introduction to hearsay evidence
The rule against hearsay was a common law rule that

General note: Standard of proof:

In Miller v Minister of Pension [1947] 2 All ER 372,

developed over many centuries . However, recent years have

Denning J described the standard of proof in civil cases as

seen significant legislative reform in this area and the common

follows:

law rule has now been replaced by statutory schemes in both

39

Law of Evidence notes compiled by Yvette Brown 2010-2011

civil and criminal proceedings. While there are some

b) Identify whether the statement was made out of court

differences between the statutory definitions of hearsay in civil

(i.e., other than by a witness while giving evidence in

and criminal proceedings, the core concepts are the same

the proceedings)
c) Identify the relevance of the relevance of the statement

because both definitions were based on the same common law

(i.e., the purpose for which the statement is being

rule. However the rule against hearsay is not simply an

admitted).
d) Identify whether, in order to achieve that purpose, the

exclusionary rule: there are many exceptions to it in both

criminal and civil proceedings .

statement has to be true or whether the purpose can be

General note : The common law rule

At common law the rule against hearsay was usually cast in the

achieved by simply showing that the statement was

made. If the statement had to be true to achieve its

following terms:
Any statement other than one made by a witness while giving

purpose it was hearsay evidence . if to achieve its

relevant purpose, the statement simply had to be made,

testimony in the proceedings in question is inadmissible as

then the statement was original evidence.

evidence of the facts stated.

There are three key elements to the rule against hearsay:
Statement
Made out of court (i.e., other by a witness while giving

Introduction
The civil rule is : any assertion other than one made by a
witness giving oral evidence in a court is inadmissible as

evidence in the proceedings)

Inadmissible as evidence of the facts stated

evidence of any fact stated in that assertion. Such evidence

would therefore be inadmissible if the purpose for which it is

General note: Identifying hearsay at common law

At common law, it was possible to determine whether a

tendered is to prove the truth of that which has been asserted.

statement was hearsay by adopting a methodical four stage

Always look at the purpose for which a party is tendering it.

approach, as follows.
a) Identify the statement

The rationale for excluding hearsay evidence is the difficulty

posed to a tribunal of fact (whether judge or jury ) to assess the
weight of that evidence properly. Bear in mind that they have
40

Law of Evidence notes compiled by Yvette Brown 2010-2011

not themselves to observe and hear the person making the

live rounds of ammunitions but no weapon of any

statement and that person cannot be subjected to cross

description was found upon him or in the immediate

examination.

vicinity . He was charged with the possession of

ammunition contrary to the Emergency Regulations,

It is important to distinguish statements which are inadmissible

1951, of the Federation of Malaya, r 4(1) (b). His

because they are hearsay, from statements admissible as

defence was that he had been captured by terrorists and

original evidence, provided that they are relevant. The case of

that at all material times he was acting under duress. It

Subramaniam v Public Prosecutor [1956] 1 WLR 965,

was held that evidence of threats made to the accused

(Privy Council case) explains this distinction. See also the

by the terrorists should have been admitted in order to

Guyanese case of Gomez, where Gomez says he did the act

show whether they might reasonably have induced in

because gunmen held him up. The jury needed to hear from

the accused an apprehension of immediate death if he

him what the gun men said. See the cases of Woodhouse v

failed to comply with their wishes, which was of direct

Hall [1980] 72 Cr App R 39 and R v Chapman [1969] 2 All

relevance to the issue of duress.

ER 321, for the distinction between hearsay and original

evidence. The common law rule that hearsay applies equally to

Woodhouse v Hall [1980] 72 Cr App R 39:

statements made orally as it does to statements made in writing

defendant was charged with acting in the management

also applies equally to express assertions as well as to implied

of a brothel. The prosecution case was that the massage

assertions.
Subramaniam v Public Prosecutor [1956] 1 WLR

parlour she ran was in fact a brothel. A brothel is a

965, (Privy Council):

the

premises at which more than one woman offers herself

the accused was found in a

as a participant in physical acts of indecency for the

wounded condition by certain members of the security

sexual gratification of men. To prove that the massage

forces. When he was searched there was found around

parlour was in fact a brothel, police officers were called

his waist a leather belt with three pouches containing 20

to give evidence that they had visited the massage

41

Law of Evidence notes compiled by Yvette Brown 2010-2011

parlour in the guise of customers and that, while being

in evidence maintained that when he took the breath

massaged

these

test he had to take three or four blows before he could

employees had offered them sexual services . The

inflate the bag (in the instructions accompanying the

evidence of these offers being made was held not to

breathalyser it is stated that the bag must be inflated by

constitute hearsay evidence. It was the fact that offers

a single breath). The recorder, in his summing-up to the

of sexual services were made that was relevant, not

jury, said that if the jury believed the evidence that the

whether these offers were true.

bag had been inflated in a single breath the condition

by

the

defendants employees,

precedent to the request to provide a specimen for a

R v Chapman [1969] 2 All ER 321: The appellant,

laboratory test had been satisfied under s 3(2)(a) of the

who had been out drinking, was taken to hospital

Act of 1967; if the jury believed the evidence that the

following an accident involving the car which he had

bag had been inflated only after three or four blows the

been driving. A breath test was administered and since

condition precedent under s 3(2)(b) had been satisfied.

this proved positive, a specimen of blood was taken.

On appeal against conviction- Held - The appeal would

The specimen of blood, on analysis, indicated alcohol

be dismissed, because (i) it was perfectly proper for the

in excess of the prescribed limit. The appellant was

police to give evidence of the fact that the medical

charged with an offence under s 1 of the Road Safety

practitioner did not object to the appellant's providing a

Act 1967. At his trial the police gave evidence that

specimen of breath , (ii) in his summing-up the recorder

before the appellant took a breath test the medical

gave a correct direction to the jury as to the application

practitioner, in whose care the appellant was, was

of s 3(2) . Appeal dismissed.

notified (under s 2(2) of the Road Safety Act 1967) and

did not object: the appellant took the breath test and

Examples of the rule against hearsay in operation in three

inflated the bag on the breathalyser with one breath.

different ways:

The medical practitioner was not called. The appellant

42

Law of Evidence notes compiled by Yvette Brown 2010-2011

1.

Hearsay in words Spoken: Sparks v R [1964] AC

cars together with their logbooks, stealing cars nearly

964, PC the defendant was tried for indecent assault

identical to the wrecked ones, disguising the stolen cars

of a four year old girl. Soon after the incident the girl

so that they correspond with the logbooks of the

said to her mother, when questioned as to the

wrecked ones, and then selling them. In order to show

description of the assailant: it was a coloured boy. The

that the cars sold were the stolen ones, the prosecution

girl did not give evidence at trial. Sparks was white and

called an employee of the a car manufacturer to

at trial sought to lead evidence from the girls mother

produce microfilm of cars completed by other

on a charge for a sexual offence the defence tried to

employees and showing that the numbers stamped on

lead evidence from the girls mother that this comment

the cylinder blocks of the cars sold were identical to

had been made to establish that he could not have been

those on the cylinder blocks of the cars stolen. The

the assailant. The Privy Council held that the evidence

Court of Criminal Appeal upheld

was hearsay. See also the case of R V Mclean [1967]

because of the probability that the information in the

52 Cr App R 80.

records was correct, i.e. it was reliable. The House of

the conviction

Lords held that the records were inadmissible hearsay

Date: 5 November 2010

and should not have been admitted. The records were

statements by unidentifiable workmen that the cars they

HEARSAY CONTINUED
2.

saw bore certain cylinder block numbers and the

witness called was unable to give any direct evidence

Hearsay in documents: See the case of Hotel v the

that the numbers in the records were the numbers on the

Comptroller of Customs 1966 AC 365 . In the case of

cars. See also the cases of Queen v Homer Williams

Myers v DPP [1964] 2 All ER 88, the accused was

[1969] 13 WIR 520, See also the pre Myers case

convicted of a conspiracy concerning stolen cars. It was

Queen v Rice [1963] 1QB 857. In the case of the

alleged that the conspiracy involved buying wrecked

43

Law of Evidence notes compiled by Yvette Brown 2010-2011

Queen v Homer Williams [1969] 13 WIR 520: At the

3.

Hearsay in implied assertions: the case of Teper v

trial of the appellant on a charge of larceny of a bicycle,

Queen 1952 AC 480, demonstrates this point. If a

the trial judge admitted as evidence in proof of the

person were to intentionally imply a fact by making a

identification of the bicycle, the testimony of a witness

particular statement, that statement would still be

who identified the bicycle by comparing the serial

hearsay. In the case of Teper v Queen 1952 AC p 480

number etched on the frame of the bicycle with the

it was noted that, if the unknown bystander had

serial number recorded on the exporter's invoices,

intended to identify Tepers presence to the police

which had not been prepared by the witness himself.

officer, the statement would still be hearsay. The

The appellant was convicted and, on appeal, it was

statement was made to a police officer by an unknown

contended that the evidence was inadmissible as the

person. It was held that as it was not known who had

invoices were prepared by persons who had not given

made the statement it was unlikely to be possible to

evidence and therefore the accuracy of the evidence

prove that the makers mind was dominated by the

derived from the invoices could not be tested in cross-

event if it is not known who the maker is. See also the

examination. Held: the evidence derived from the

case of R v Kearley [1992] 2 AC 228, HL, the police

invoices was not admissible since it could not be any

executed a search warrant of Kearleys house. They

more admissible than the invoices themselves, and the

found drugs there but not in insufficient quantities to

invoices would not be admissible evidence to prove the

raise the inference that he was a dealer. After the search,

serial number unless they were produced by some

the police remained at his premises for several hours

person who had prepared them or perhaps had

and intercepted ten telephone calls in which each caller

witnessed their preparation or had made a physical

asked to speak to Kearley and asked for drugs. While

check of the serial number of each bicycle against the

the police were still on the premises, seven persons

invoices. Appeal allowed, and a new trial ordered.

arrived at the flat, some with money, also asking for

44

Law of Evidence notes compiled by Yvette Brown 2010-2011

Kearley and asking to be supplied with drugs. Kearley

to the maker of the statement is admissible proof of its

denied a charge of possession with intent to supply. At

contents. The rationale for this point is the unlikelihood of a

trial, the prosecution was allowed to call the police

person making an untrue statement against himself. Such

officers who had intercepted the calls or received the

statements which are known as informal admissions are also

visitors at the flat to give evidence of the conversations

described as confessions when made by a person charged with

they had had with the callers or visitors. The House of

or suspected of a criminal offence, to a person in authority.

Lords, by a majority of three to two, held that evidence

Confession are subject to special rules of admissibility:

of such a request was not relevant because it could only

Admissions are usually made explicitly or implicitly and by

be evidence of the state of mind of the person making

words, but an admission may also be made by flight or silence,

the request, which was not a relevant issue at the trial.

see the case of Bessella v Stern [1877] 37 Law Time Report

The issue at trial was Kearleys state of mind, namely

88.

whether he intended to supply drugs, and in so far as

Statements made in the presence of a party to a criminal

evidence of a request was relevant to that issue, it was

proceedings are not themselves admissible as truth or proof of

inadmissible hearsay in the same way that an express

the statement save and except that acknowledgement of truth of

out-of-court assertion to the same effect would be

the statement can be inferred from either a response of the

inadmissible hearsay.

party by words or conduct, see the case of Queen v Christie

[1914] AC 545 read the judgment of Lord Atkins at p 554.

Principal exceptions to rule on hearsay

Queen v Christie [1914] AC 545: At the trial of the

a. Common law exception

b. Statutory exception

respondent on a charge of indecently assaulting a boy

aged five years, the mother of the boy stated in

Common law exception - Admissions and Confessions:

evidence that at about 10am he left her, and that she

Evidence of any statement made out of court which is adverse

45

Law of Evidence notes compiled by Yvette Brown 2010-2011

next saw him about 10.30am. After describing his then

The mother then stated that, as she and the boy were

condition, she stated that she took him across the fields,

going towards the respondent, the boy said: "That is the

and there saw a man with whom she had a

man, mum." Crooks, a police constable, was standing

conversation, and the respondent was then fetched. She

close to the respondent, and asked: "What man?" The

was asked whether the boy said anything in the

boy went up close to the respondent and said: "That is

presence and hearing of the respondent; she answered.

the old man, mum," and proceeded to give a description

in the affirmative, and objection was raised to the

of the acts done by Christie, who replied: "I am

admission in evidence of the conversation. Her

innocent." Police Constable Crooks, when called, said

evidence was then interrupted and the boy was called.

that the boy, in answer to the question: "Which is the

He related the story of the assault, and when asked by

man?", went up to the respondent, touched him on the

counsel if he could see the man in court who committed

sleeve, and said: "That is the man." The police

it, he pointed to the respondent. Counsel for the defence

constable asked: "What did he do to you?" and the boy

did not cross-examine. The evidence, of the mother was

then gave an account of the various acts done by the

then resumed, and she was again asked whether the boy

respondent, who answered; "I am innocent, I have been

said anything in the respondent's presence. Counsel for

asleep in the fields since eight o'clock last night." The

the defence again objected, and argued upon the

only cross-examination was to elicit a repetition of the

authority of the Court of Criminal Appeal in R v Norton

statement: "I am innocent." Held: (i) the evidence of the

(1) that the evidence was not admissible, inasmuch as

boy's mother and of the police officer that the boy said:

the respondent had denied the statement made in his

"That is the man" when he touched the prisoner's sleeve

presence. The deputy, chairman was aware from the

was admissible as being so closely connected with the

depositions of the nature of the statement and of the

act of identification as to be part of it; (ii) the evidence

respondent's answer to it. The evidence was admitted.

of those witnesses regarding the boy's statement when

46

Law of Evidence notes compiled by Yvette Brown 2010-2011

asked what the prisoner had done to him was also

respondent under s 62 of the Offences against the

admissible although the prisoner denied that it was true,

Person Act 1861, [see now Sexual Offences Act 1956, s

for there was no rule of law that evidence could not be

15(1)(2)] for indecently assaulting a boy named

given of an accused person being charged with an

Frederick Butcher, of about five years of age, was

offence and of his behaviour when hearing the charge

quashed, and a verdict and judgment of acquittal

where that behaviour amounted to a denial of his guilt

directed to be entered upon the indictment upon which

(R v Norton (1) [1910] 2 KB 496, criticised and

he had been convicted. The accused was then

doubted) but the evidential value of the behaviour of

discharged from custody. The Attorney-General stated

the accused where he denied the charge was very small,

that there was no intention of re-arresting him,

either for or against him, whereas the effect on the

whatever the result of this appeal might be.

The questions of law arising on the appeal are: (i)

minds of the jury of his being charged to his face with

Whether a certain statement made by this boy Butcher

the crime might seriously prejudice the trial, and the

in the presence and hearing of the accused and of a

judge would in most cases be acting in accordance with

police constable was properly admitted in evidence; and

the best traditions of our criminal procedure if he

(ii) whether, the child having been permitted under the

suggested to the prosecution that the evidence should

powers of s 30 of the Children Act 1908, (now Children

not be admitted; (iii) the evidence was not admissible as

and Young Persons Act 1933, s 38] by the deputy

being part of the res gestae because it was not of

chairman of the Middlesex Quarter Sessions, before

something which the boy stated while the offence was

whom the case was tried, to give evidence without

being committed or immediately thereafter.

being sworn, this judge had misdirected the jury by

Judgement of LORD ATKINSON: This is an appeal

telling them that the statement so made by the boy in

from an order of the Court of Criminal Appeal, dated 27

the presence of the accused was, within the meaning of

October 1913, whereby the conviction of the present

that section, material evidence implicating the accused,

47

Law of Evidence notes compiled by Yvette Brown 2010-2011

in corroboration of the boy's testimony given at the

statement giving full particulars of the offence charged.

trial.
The little boy when examined as a witness proved what

The Attorney General contended that the entire

statement of the boy was admissible on each of four

had been done to him, and identified the prisoner as the

separate grounds: (i) As part of the act, of identification,

person who had done it, but was not asked any

or as explanatory of it. (ii) As a statement made in the

questions, and did not give any evidence, in reference

presence of the prisoner in circumstances calling for

to any previous identification of the accused by him,

some denial or explanation from him, the truth of which

nor refer to any statement previously made by him in

he admitted by his conduct and demeanour. (iii) As

the presence of the accused. He was not cross-examined

proof of the consistency of the boy's conduct before he

upon his evidence of identification given at the trial.

was examined with the testimony given by him at the

The boy's mother, Mrs Charlotte Butcher, and

trial. (iv) As part of the res gestae. Your Lordships

Constable William Crooks were examined. The latter

intimated during the course of the argument that you

proved that he was stationed at Edmonton, and that,

would not consider this third point. It is, therefore,

having received certain information, he went to a field

unnecessary to allude to it further. Of course, it will

off Winchester Road, saw a number of people,

suffice for the Attorney General's purpose if the

including the prisoner, Mrs Butcher, and her son

statement be admissible on any of these grounds. It is, I

standing there; that she made a complaint to him (the

think, clear that the principle laid down in R v Lillyman

constable) that a man had assaulted her son, that be then

(2) and in those cases which followed, has no

asked the boy which was the man, whereupon the boy

application to the present case. In these cases it was

went up to the accused, touched him upon the sleeve of

decided that in rape and other sexual crimes committed

his coat, and said: "That is the man"; that he (the

against women, the statement of the prosecutrix made

constable) then asked the boy: "What did he do to

in the absence of the accused in the form of a

you?" In reply to which question the boy made a

48

Law of Evidence notes compiled by Yvette Brown 2010-2011

complaint, immediately or soon after the commission of

man," the statement was so closely connected with the

the offence, is admissible in evidence, even though the

act which it accompanied, expressing, indeed, as it did,

full details of the crime be stated. In R v Lillyman (2)

in words little if anything more than would have been

consent was immaterial on the charge in the first count

implied by the gesture simpliciter, that it should have

of the indictment, upon which alone the prisoner was

been admitted as pert of the very sot of identification

convicted, though it was material on some of the other

itself. It is on the admissibility of the further statement

counts. It is admitted that such a statement is no

made in answer to the question of the constable that the

evidence against the accused of the facts stated. There

controversy arises. On the whole, I am of opinion that

is some conflict between the authorities as to the

this statement only amplifies what is implied by the

particular grounds upon which such statements are

words "That is the man," plus the act of touching him.

admitted, but I think the general result of the cases is

A charge had been made against the accused of the

that the complaint is only admissible to negative

offence committed on the boy. The words "that is the

consent. It is to be remembered that statements

man" must mean "that is the man who has done to me

admitted under heads (i) and (iv) are not, as against the

the thing of which he is accused." To give the details of

accused, affirmative evidence of the facts stated, but

the charge is merely to expand and express in words

only of the knowledge of, or the belief in, those facts by

what is implied in the act of identification. I think,

the person who makes the statement, or of his intention

therefore, that the entire statement was admissible on

in respect of them. They must, of course, in order to be

these grounds, even although the boy was not asked at

admissible, be relevant to the issue, the guilt of the

the trial anything about the former identification.

As to the second ground, the rule of law undoubtedly is

accused of the offence charged against him.

As to the first point, it cannot, I think, he open to doubt

that a statement made in the presence of an accused

that, if the boy had said nothing more, as he touched the

person, even upon an occasion which should be

sleeve of the coat of the accused, than "That is the

expected reasonably to call for some explanation or

49

Law of Evidence notes compiled by Yvette Brown 2010-2011

denial from him, is not evidence against him of the

entirely. It is said that, despite this direction, grave

facts stated save so far as he accepts the statement, so as

injustice might be done to the accused, inasmuch as the

to make it, in effect, his own. If he accepts the

jury, having once heard the statement, could not or

statement in part only, then to that extent alone does it

would not rid their mind of it. It is, therefore, in the

become his statement. He may accept the statement by

application of the rule that the difficulty arises. The

word or conduct, action or demeanour, and it is the

question then is this: Is it to be taken as a rule of law

function of the jury which tries the case to determine

that such a statement is not to be admitted in evidence

whether his words, action, conduct, or demeanour at the

until a foundation has been laid for its admission by

time when a statement is made amounts to an

proof of facts from which, in the opinion of the

acceptance of it in whole or in part. It by no means

presiding judge, a jury might reasonably draw the

follows, I think, that a mere denial by the accused of the

inference that the accused had so accepted the statement

facts mentioned in the statement necessarily renders the

as to make it his own in whole or in part, or is it to be

statement inadmissible, because he may deny the

laid down that the prosecutor is entitled to give the

statement

such

statement in evidence in the first instance, leaving it to

circumstances as may lead a jury to disbelieve him, and

the presiding judge, in case no such evidence as the

constitute evidence from which an acknowledgment

above mentioned should be ultimately produced, to tell

may be inferred by them. Of course, if at the end of the

the jury to disregard the statement altogether? In my

case the presiding judge should be of opinion that no

view the former is not a rule of law, but it is, I think, a

evidence has been given upon which the jury could

rule which, in the interest of justice, it might be most

reasonably find that the accused had accepted the

prudent and proper to follow as a rule of practice. The

statement so as to make it in whole or in part his own,

course suggested by PICKFORD J in R v Norton (1)

he can instruct the jury to disregard the statement

([1910] 2 KB at p 500) where workable, would be quite

in

such

manner

and

under

50

Law of Evidence notes compiled by Yvette Brown 2010-2011

unobjectionable in itself as a rule of practice, and

jury that they should discard from their minds a

equally effective for the protection of the accused. The

statement not found to have been accepted by the

course pursued when accomplices are examined as

accused as his own.

The boy's statement was so separated by time and

witnesses is very analogous to that suggested. It is not a

circumstance from the actual commission of the crime

rule of law that the evidence of an accomplice must be

that it was not, I think, admissible as part of the res

corroborated in order to render a conviction on his

gestae. In Thompson v Trevanion (7) tried before HOLT

evidence valid: R v Atwood and Robbins (3); Re

CJ sitting at nisi prius, it was held that what a woman

Meunier (4); but it is a general rule of practice that

said immediately on a hurt being received by her and

judges should advise juries not to convict on the

before she had time to contrive anything for her own

evidence of an accomplice unless it be corroborated,

advantage, might be given in evidence. The rule is here

and this is a matter entirely for the discretion of the

stated to rest on the absence of time or opportunity for

judge before whom a case is tried: R v Stubbs (5); R v

concoction. In R v Bedingfield (8) a woman rushed out

Boyes (6). Again, if two persons are jointly indicted and

of a room with her throat cut almost through, made a

tried together, the statements made by each are

statement to some women she met, and expired in a

generally only evidence against him who makes them.

very short time. Her husband was found in this room

Under certain circumstances they may be evidence

with his throat cut also. The question at issue was

against both, but if they be only evidence against him

murder or suicide. COCKBURN CJ said the woman's

who makes them, injustice to the other accused is

statement was not admissible,

"for it was not part of anything done or

guarded against by the presiding judge telling the jury

that this is so. There is no sufficient reason, I think, to

something said while something was being

suppose that injustice to the accused could not be

done, but something said after something

effectually guarded against by the judge instructing the

done. It is not as if, while being in the room

51

Law of Evidence notes compiled by Yvette Brown 2010-2011

and while the act was being done, site had

He could not be his own corroborator. It can make no

said something which was heard."

In other cases, such as R v Foster (9) and R v Lunny

possible difference when others tell what he did and

said on that occasion. Their evidence is no more

(10) the rule was applied with less strictness. I have

"material corroborative evidence in support of his

found no authority, however, which would justify the

evidence at the trial implicating the accused" than his

admission of any part of the boy's statement as part of

would be. The appeal, so far as it is directed to reverse

the res gestae.

Even, however, if the boy's statement was admissible in

the decision appealed from, should, I think, be

dismissed, although the Crown have succeeded on the

evidence if properly dealt with, I think the verdict

point as to the admissibility in evidence of the

should be quashed. The deputy chairman never

statement. I have been requested by my noble and

explained properly to the jury that it is what the accused

learned friend LORD PARKER to express his

accepts as his own of the statement made in his

concurrence in this judgment.

presence that is evidence against him, not the statement

itself. Again, he treated the evidence of the mother of

Queen v Christie it is important to note that the fact that the

the boy and the constable, as to what the boy said and

accused fails to swear to answer an allegation is not normally a

did

confession.

on

the

occasion

of the

identification,

as

corroboration of his testimony at the trial, within the

Date: 12 November 2010

meaning of s 30 of the Children Act 1908. This is, of

There are however exceptional circumstances where a reply

course, wholly erroneous. If the boy himself had been

might reasonably be expected from the accused. In such cases a

examined, either in chief or on cross-examination, and

failure to respond might be taken to amount to an admission or

had detailed what took place at the identification, this

acceptance of what was said to the defendant. The classic

portion of his evidence could not be treated as

corroboration of the other portion proving the charge.
52

Law of Evidence notes compiled by Yvette Brown 2010-2011

statement found in R v Mitchell [1892] 17 Coxs Crim Cases

actually on the scene when the corrosive fluid was

p 503 at p 508 see the judgement of Cave J.

thrown but was elsewhere in the house and never saw

who threw it. On appeal it was submitted that the

Regarding how principles work in practice see the case of

defence of the appellants was not fairly and adequately

Dave and Watson v R [1966] 11 WIR 37 CA judgement from

put and that the trial judge misdirected the jury on the

Trinidad and Tobago, in the instant case the non denial of a

silence of the appellants when charged for throwing

charge by a defendant after it had been formally put to him,

corrosive fluid. Held: (i) in every summing-up it is the

after caution can never be treated as an admission.

Dave and Watson v R [1966] 11 WIR 37 :The

duty of the judge to put the defence to the jury fairly

appellants were convicted of the murder of Ollie

and adequately, however weak it may appear to be;

Bartholomew who died on 9 June 1965, from extensive

accordingly, a judge must put before the jury the nature

corrosive sublimate burns caused by sulphuric acid

of the defence, reminding them very shortly what the

allegedly thrown upon her on 22 March 1965, by the

evidence was. (ii) the non-denial by an accused of a

appellants acting in concert without any apparent

charge when formally made by the police is never an

reason or motive. When apprehended by the police

admission by conduct. Appeals allowed.

shortly after the incident the appellants were accused of

ordered.

throwing corrosive fluid on Ollie Bartholomew who

New trial

See also the case of R v Monica Williams [1970] 16 WIR 74 ,

was then still alive. The appellants were cautioned but

in this case the police had issued a search warrant , they then

said nothing in reply. At the trial the essence of the

went to the ladys premises which was a shop and bar business.

appellant David's defence was that it was Augustus

They found some vegetable matter and said to Ms Williams -

Bartholomew, the husband of the deceased, who,

this looks like ganja, they said it a few times and each time ,

motivated by jealousy, threw the acid on his wife. The

she said nothing. It was held that her persistent non denial in

defence of the appellant Watkins was that he was not

face of the several accusations could amount to an admission.

53

Law of Evidence notes compiled by Yvette Brown 2010-2011

This is a Jamaican Court of Appeal case which is considered a

three yards north of the house. The contents of each of

borderline case. See also the case of Parkes v R [1976] 3 All

the newspaper parcels weighed 1/4 lb. According to the

ER 380 PC in the instant case the accused allegedly chopped a

prosecution, the police had met the appellant in the

girl witrh a machete during an altercation. The mother heard

living-room of the house. They told her that they had

and came and said you just chop mi daughter. He did not

come to search the premises under a search warrant for

respond but turned and attempted to chop her. The Privy

dangerous drugs and the appellant told them that she

Council said his silence coupled with his conduct was capable

was the "owner" of the premises. The search warrant

of amounting to an admission. It seems the real test is going to

was read to her and the search proceeded in the

be what is going to be reasonable in all the circumstances.

presence of the appellant who witnessed the discovery

of the carton boxes and crocus bags. As each discovery

R v Monica Williams [1970] 16 WIR 74: Upon a

was made she was shown the matter found and told that

search by the police ganja was found at several places

it was ganja and on each occasion that this was done

in a dwelling-house occupied by the appellant. On the

she remained silent.

It was elicited during the course of the prosecution's

tiled floor of the bathroom was found a carton box

containing seventeen newspaper parcels each of which

case that male clothing was seen in one of the

contained ganja. Concealed in the ceiling of the living

room above a trap door were five carton boxes. In one

bedrooms.
The appellant in her defence said that she and her infant

of these boxes there were sixteen newspaper parcels

children had slept elsewhere on the previous night. She

each of which contained ganja. Two boxes contained a

was returning home when someone pointed her out to

paper bag with ganja and a paper bag of ganja seeds

the police as the person who lived on the premises. She

respectively while the other two boxes contained ganja.

was ordered into a jeep by the police. She denied that

No ganja was found in the two bedrooms. Two crocus

she told the police that she was the "owner" of the

bags containing ganja were found in a fowl pen about

premises. She said that no warrant was read to her. She

54

Law of Evidence notes compiled by Yvette Brown 2010-2011

also denied that she witnessed the finding of the ganja

which "something more" might be inferred. The

and that the ganja was shown to her. Evidence was

resident magistrate could take into consideration the

adduced on the part of the defence that one Gordon had

falsity of the alibi advanced by the appellant. Further

erected the house on land owned by one Samuels and

the quantity of the ganja found, the obvious position of

that Gordon had rented one bedroom in the house to the

the two crocus bags in the fowl pen, and more so, the

appellant and occupied the other. It was also sought to

carton box in the bathroom and the circumstance that

be shown that there were other buildings on the land

some of the ganja had been parcelled, were also matters

and that a gully ran nearby whereby a large number of

capable of showing guilty knowledge in the appellant

persons would have access to the land.

The resident magistrate convicted the appellant of being

who was the only adult person present in the house at

the time of the visit of the police; (ii) the consistent

in unlawful possession of ganja.

On appeal, it was contended that in the light of the

failure of the appellant to say anything at all when she

was shown the ganja was another fact which

evidence for the defence it could not be said that the

strengthened the inference of possession in the

prosecution had shown beyond reasonable doubt that

appellant, some explanation or denial being reasonably

the appellant was in exclusive or joint occupation of the

expected from her in the circumstances. Appeal

entire house and yard; and as no ganja was found in the

dismissed.
Parkes v R [1976] 3 All ER 380 PC: The appellant

bedroom the appellant occupied, there was no material

upon which a finding could be made that the appellant
was in possession of ganja.
Held: (i) while the mere

occupation

of

and the deceased, a young woman, lived in separate

rooms of a house owned by the deceased's mother who

lived in the adjoining house. One morning the mother

dwelling-house without "something more" is not

found the deceased in her room bleeding from stab

sufficient to invest the occupant with possession of

wounds. The mother then went into the yard common to

ganja found therein, there was in this case material from

both premises where she saw the appellant with a rachet

55

Law of Evidence notes compiled by Yvette Brown 2010-2011

knife in his hand. She twice accused the appellant of

spontaneous charge by a mother about an injury done to

having stabbed her daughter but he made no reply.

her daughter, rather than an accusation made by or in

When she threatened to detain him until the police were

the presence of a police officer or any other person in

sent for, the appellant attempted to stab her with the

authority or charged with the investigation of the crime

knife. Following the deceased's death the appellant was

and, furthermore, the appellant's reaction to the

charged with murder. At his trial the judge instructed

mother's accusation was not mere silence but an attempt

the jury that the failure of the appellant to reply to the

to stab her when she threatened to detain him. The

accusations made against him by the mother that he had

appeal would therefore be dismissed .

stabbed her daughter, coupled with his conduct

Hall v R [1971] 16 WIR 276 (PC Jamaica): A search

immediately after those accusations had been made,

was made of a two-roomed building said to be occupied

were matters from which the jury could, if they thought

by the appellant and two women, DG and DT. In DGs

fit, draw an inference that the appellant accepted the

room packets of ganja were found in a grip and brief

truth of the accusation. The appellant was convicted of

case.

murder. He appealed on the ground, inter alia, that his

DG admitted the grip was hers but denied

knowledge of the ganja found in it. Packets of ganja

failure to answer the mother's accusations was not a

were also found in a shopping bag in DTs room. DT

matter from which the jury were entitled to draw any

said that the shopping bag had been brought there by

inference that he had accepted the truth of the

accusations. Held - The judge was entitled to instruct

the appellant.
The appellant was not on the premises when the search

the jury that the appellant's reaction to the accusations,

was in progress but he was brought there shortly

including his silence, were matters which they could

afterwards by another police officer. He was told by

take into account, since the appellant and the mother

the police officer who had conducted the search that DT

were speaking on even terms; her accusation was a

had said that the ganja belonged to him. He made no

56

Law of Evidence notes compiled by Yvette Brown 2010-2011

comment and remained silent. The appellant and the

the statement which DT had made. On appeal to the

two women were subsequently charged for possession

Privy Council - Held: silence alone, on being informed

of ganja. At the conclusion of the prosecutions case it

by a police officer that someone else has made an

was submitted on behalf of the appellant that the

accusation against him, cannot give rise to an inference

evidence disclosed there was no case to answer. The

that the

resident magistrate overruled this submission.

The

communicated accepts the truth of the accusation; and

defendants gave no evidence and called no witnesses.

this is so whether or not a caution has been

The appellant and DT made statements from the dock

administered at the time at which that person is

denying all knowledge of the matter and DG said that

informed of the accusation.

she wished to say nothing at all.

person to whom this

information

is

The resident

magistrate found all three defendants guilty.

All three defendants appealed to the Court of Appeal.

R v Chandler [1976] 1 WLR 585: The appellant was

suspected of being one of the members of a gang which

The appeal of DT was allowed upon the grounds that it

had been formed to obtain television sets dishonestly. In

was not established beyond reasonable doubt that she

the presence of his solicitor, the appellant was

knew what was in the shopping bag, and furthermore

questioned by a detective sergeant at a police station.

she had immediately disclaimed ownership of the bag.

Both before and after being cautioned he answered

The appeals of DG and the appellant were dismissed.

some questions and remained silent or refused to

The Court of Appeal held that although there was some

answer other questions in relation to other alleged

evidence of joint occupancy of the house if the matter

members of the gang. He was charged with conspiracy

rested on that alone the conviction would be unsafe.

to defraud and at his trial did not give evidence. The

That court held, however, that the appellants silence

only evidence against him was the interview at the

when told of the accusation made against him by DT

police station. The judge directed the jury that it was for

amounted to an acknowledgment by him of the truth of

57

Law of Evidence notes compiled by Yvette Brown 2010-2011

them to decide whether the appellant had remained

In Barbados this question is dealt with by section 76 of their

silent before the caution in the exercise of his common

Evidence Act

law right or had 'remained silent because he might have

thought that if he had answered he would in some way

Statements in public documents

Public documents coming from a proper place or a certified

have

was

copy of it is evidence of every fact stated in that document. A

convicted and appealed. Held - Some comment by the

public document is one made under strict duty to acquire

judge on the appellant's lack of frankness before he was

information of all circumstances recorded. It must be intended

cautioned was justified, provided the jury's attention

to form a permanent record, it must concern public matters, it

was directed to the right issue. That issue was whether

must be meant to be open to public inspection. An example of

the appellant's silence amounted to an acceptance by

public documents/records are the registrar of births deaths

him of what the sergeant had said. If he had accepted

marriages kept at Registrar General Department (RGD)

what had been said, the jury should then consider

pursuant to statute which says there must be a registrar general

whether guilt could reasonably be inferred from what

who keeps such records. Therefore if the issue is whether John

he had accepted. The judge should not have suggested

Brown was a witness at the marriage of the Smiths, the signed

that the appellant's silence could indicate guilt; his

marriage certificate would be proof of it, see the case of Sturla

comment was not justified and could have led the jury

v Feccia [1880] 5 AC 623. In this case it was stated that in

to a wrong conclusion. Furthermore, the unsupported

order to come within this category of exception the document

evidence of the interview did not provide a safe

must i) concern a public matter, ii) be made by a person under

foundation for an inference that the appellant had been

a duty to inquire the matter and record the findings of that

a member of the conspiracy alleged. The appeal would

inquiry, iii) be retained so that the public might refer to it or

therefore be allowed and the conviction quashed.

inspect it.

incriminated

himself'.

The

appellant

58

Law of Evidence notes compiled by Yvette Brown 2010-2011

In the case of Pettit v Lilley

[1946] 1 All ER 593

the

was contended by the prosecution that regimental

question arose as to whether possession of a motor vehicle

records

were

public

documents

and

therefore

registration booklet was proof of ownership .

Pettit v Lilley - [1946] 1 All ER 593: In registering

admissible at common law as prima facie evidence of

the facts stated therein:-- Held - Regimental records

the birth of a child, the respondent gave her husband's

were not public documents because they were not

name as the father. She was convicted by a court of

documents to which the public could have access and

summary jurisdiction for having made a false statement

were not kept for the use and information of the public

contrary to the Perjury Act, 1911, s 4, on the ground

but for the information of the Crown and the Executive;

that her husband was overseas on military service at the

they were confidential Crown documents which the

time that the child was conceived. She appealed and at

Crown could refuse to produce. Therefore, they were

the hearing of the appeal, in order to prove non-access

not admissible as evidence.

the prosecution sought to put in evidence certain

Statements made by deceased persons
At common law certain statements made by deceased persons

regimental records relating to him and the officer in

charge of the records was called as a witness. He stated

are recognised exceptions to the rule on hearsay e.g. disputes as

that the records in question were official records and

to pedigree (lineage, family background, ancestry), statements

documents, kept by a government department and

as to public and general rights, statements made by a testator as

preserved at the Regimental Records Office; they were

to the contents of their wills, and statements made in course of

not documents to which the public had access, nor

duty, dispute over boundary and right of way to beach . These

were they kept for the use or information of the public.

are all now of decreasing significance either because they have

The recorder held that the records were not admissible

been overtaken by statute or because of modern times. In

under the common law and since there was no other

relation to a will one must be careful when dealing with

evidence, he found that the case was not proved and

statements allegedly said by deceased persons, as people

quashed the conviction. On appeal to the Hight Court, it

59

Law of Evidence notes compiled by Yvette Brown 2010-2011

change their wills. Where a police officer on duty records when

The case of Nembhard v R [1981] 1 WLR 1515 PC; [1982] 1

a person comes or leaves a place , if a dispute arises as to

All ER 183 is an appeal from Jamaica.

whether someone was at place, and the police officer is dead

carefully. The facts above held properly admitted as a dying

his written records would be used to adduce evidence.

declaration P.C upheld findings of judge , jury is to be told look

Look at a 4th edition of Cross, note this does not have a great

at statement carefully.
Nembhard v R [1981] 1 WLR 1515 PC; [1982] 1 All

deal of practical significance especially not for exam.

Read this case

ER 183: The appellant was charged in Jamaica with the

murder of a police officer. The evidence for the

OTHER EXCEPTIONS
Dying declaration: this is a declaration made by a person who

prosecution was that the deceased had been shot at the

gate of his home and that there were no eye-witnesses,

must be dying. Certain conditions must be satisfied. A dying

but that when his wife heard the shots and ran out to

declaration as to cause of death, by a deceased person is

admissible evidence at trial of a person for his homicide.

him from the house he told her that he was going to die,

that she was going to lose her husband and that the

and W went out together, on return they drive in through their

appellant had shot him. He died a few hours later. The

gate and into garage. H goes out to lock the gate, and upon

trial judge admitted the evidence of the wife as to her

hearing a gunshot W runs after him. W sees two women

husband's statement, on the basis that it was a dying

running off and H says Lord Dorry, you lose your husband now

declaration. There was no other evidence which

is that thieving boy John do it.

For a statement to be admissible as dying declaration it must

implicated the appellant. In his summing up, the trial

meet the following test:

judge told the jury that they must be satisfied as to the

reliability of the wife and that, if so satisfied, they must

a. The deceased must himself be a competent witness

b. The Statement must relate to the cause of death
c. The deceased must be shown to have been operating

also assess the probative value of the dying declaration

itself, bearing in mind that it had not been tested by
cross-examination, but he did not tell the jury that it

under settled hopeless expectation of death

60

Law of Evidence notes compiled by Yvette Brown 2010-2011

was dangerous to rely on a dying declaration in the

of the statement. In Nembhard the man had not met all the

absence of corroboration. The appellant was convicted

requirements.

and his application for leave to appeal against

See also the case of Mirjah v R [1972] 20 WIR 537 this is an

conviction was dismissed by the Court of Appeal of

Antiguan case where a man was walking down the street with

Jamaica. The appellant appealed to the Privy Council,

his girlfriend and was stabbed by someone else. He said to his

contending that the jury should have been directed that

girlfriend, O God Dora if I dead tell them is Wesley. The court

it was dangerous to convict of murder solely on the

held it would not pass the test because he himself was not

evidence of a dying declaration with no supporting or

corroborating evidence and that, no such direction

under a settled hopeless expectation of death.

Mirjah v R [1972] 20 WIR 537: The appellant was

having been given, the appellant's conviction was

convicted of murder of Alwyn Phillip (hereinafter

unsafe and should be quashed. Held - There was no

referred to as "the deceased") on 10 July 1972, and

rule of law or practice whereby a special warning about

sentenced to death. He has appealed against his

the absence of corroborative evidence had to be given

conviction. The case for the prosecution is that on 24

where the only evidence implicating the accused

December 1971, an accident took place between a bus

consisted of a dying declaration. A trial judge had a

owned by the appellant's brother and a motor cycle on

general duty to leave the jury with a clear

which two men were riding. Both men were injured.

consciousness of the need for care in assessing the

One of the injured men was a friend of the deceased

significance of a dying declaration, and in the

who, on hearing of the accident, went with others to the

appellant's case that duty had been discharged by the

scene where they found the appellant together with

trial judge in his summing up. Accordingly the appeal

several other persons. The deceased inquired of the

would be dismissed.
Bear in mind that the statement had not been tested by cross

persons present how the two men had received their

injuries. The appellant replied to him in an offensive

examination. They did not have a chance to observe the maker

61

Law of Evidence notes compiled by Yvette Brown 2010-2011

manner, pushed the deceased and they held on to each

raised and the trial judge dealt with it in the two

other. The appellant was seen to pull a knife from his

passages extracted from pp 64 and 71 of the record and

pocket and strike out with it at the deceased whom he

set out in the judgment. He did not, however, direct the

wounded in the region of the groin on the left side.

jury on the question of the possibility of their returning

From this wound the deceased shortly afterwards died.

a verdict of manslaughter based on provocation, or on

After receiving the blow the deceased held his stomach,

the basis of the infliction of unlawful harm causing

walked across the road and said "Oh God Dora if ah

death without the specific intent to cause death; nor did

dead you could tell anybody it's Wesley that kill me."

he tell them that if they were in reasonable doubt as to

On the question being raised as to the admissibility of

whether the killing was murder or manslaughter they

this statement the trial judge ruled that it was

should return a verdict of manslaughter. It was also

admissible as part of the res gestae and also as being a

urged that the trial judge was wrong in not putting the

statement made in the presence and hearing of the

defence of accident to the jury there being, it was said,

appellant. The correctness of this ruling and of the

material fit for consideration by the jury that the

judge's directions as to the weight to be attached to the

deceased had met his death accidentally.Held: (i) that

statement is now being challenged. There was evidence

applying the principle laid down in Ratten v R ([1971] 3

from two of the witnesses for the prosecution that there

All ER 801, 56 Cr App Rep 18), the statement made by

was a fight between the appellant and the deceased and

the deceased was properly admitted as being part of the

the appellant himself said that a hostile crowd came to

res gestae. It was "so clearly made in circumstances of

his gap some of whom were armed with sticks, they

spontaneity or involvement in the event that the

pulled him across the road and cuffed him; he held on

possibility of concoction" could be disregarded by the

to a man who was beating him with a stick and they

trial judge and he was right in admitting the statement

both fell to the ground. The plea of self-defence was

as part of the res gestae. The trial judge's directions as

62

Law of Evidence notes compiled by Yvette Brown 2010-2011

to the probative value of the statement were, however,

statement by word or conduct, action or demeanour

inadequate. It is true he told the jury that the statement

when it was made. However, even if it were admissible,

by itself was not evidence on which they could convict

the direction to use it as an accusation made in the

the appellant but in the same passage he told them that

hearing of the appellant was incorrect, for it is a rule of

it could be used to appreciate and understand the

law that an incriminating statement made in the

circumstances that existed at the time (a difficult

presence and hearing of an accused person even on an

statement to follow) and that it was for them to say how

occasion which would reasonably be expected to call

the statement helped them. He further told them that

for some explanation from him is not evidence against

they should consider the statement as supplying support

him at his trial of the facts stated therein save in so far

to the testimony of the eye witness and as an accusation

as he has accepted the statement so as to make it in

made in the hearing of the appellant. This amounted to

effect his own; (iii) that the statement was relevant, and

a misdirection as it cannot be said in what way the

so admissible under s 30 (i) of the Evidence Act, Cap

statement was used by the jury. The trial judge should

109 [Grenada], as the trial was a proceeding in which

have directed the jury that even if they believed the

the cause of the deceased's death came into question.

deceased did make the statement it was not evidence of

The statement was not, however, a dying declaration

the truth of the facts stated therein but only evidence of

but should be regarded as being analagous thereto. The

his knowledge or belief that he had been cut by the

trial judge, however, did not admit it under this section

appellant; (ii) that on the facts of the case, and applying

but had he done so it would have been incumbent on

the principle in Christie v DPP ((1914), 10 Cr App Rep

him to direct the jury as he would have done in the case

141), the statement was not admissible as being made in

of a dying declaration, that the statement was unsworn,

the presence of the appellant, as there was no evidence

had not been subjected to cross-examination and should

to show that the appellant might have accepted the

be regarded with care and caution; (iv) that on the issue

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Law of Evidence notes compiled by Yvette Brown 2010-2011

of self-defence there was evidence on which the jury

(b) if they were in doubt as to whether the offence

could have come to the conclusion that the man who the

proved amounted to murder or manslaughter they

appellant alleged was beating him with a stick was the

should in either case return a verdict of manslaughter;

deceased. The trial judge in the first passage of his

(vi) that on the facts of this case there was no obligation

summing up dealing with this matter undoubtedly

on the trial judge to put the defence of accident to the

intended to leave this issue to the jury but in the second

jury.

passage he clearly withdraw it from the jury when he

Statements admissible as part of the res gestate, as part of

told them that the accused having said "that he did

the event itself as it unfolded, are admissible in evidence as

nothing to Alwyn and that he and the man were

an exception to the rule on hearsay as proof of the truth of

separated, after which he went and sat in his gap, that

contents

the accused was not saying he was defending himself

of

those

statements.

These

statements

are

spontaneous and roughly contemporaneous with the event.

against any attack from Alwyn". The effect of thus

They are admissible as evidence of the facts stated provided it

withdrawing self defence from the jury may have been

was made in circumstances of such involvement and pressure

to deprive the appellant of the chance of an acquittal;

as to exclude the possibility of concoction/ fabrication or

(v) that the same evidence on which self-defence should

distortion to the advantage or disadvantage of the maker to

have been left to the jury was sufficient to justify the

defendant, see the case of Ratten v R [1971] 3 All ER 801.

issue of manslaughter on the basis of provocation being

Read judgment of Lord Wilberforce carefully. In the instant

left the jury for their consideration, and the trial judge

case Lord Wilberforce elucidated the distinction between

was in error in failing so to do. He also erred in failing

hearsay and original evidence thus: The mere fact that evidence

to direct the jury (a) that if they found that the deceased

of a witness includes as to words spoken by another person

met his death by the infliction of unlawful harm but that

who is not called, is no objection to its admissibility. Words

the appellant had no specific intention to cause death, or

spoken are facts just as much as any other action by a human

64

Law of Evidence notes compiled by Yvette Brown 2010-2011

being . if the speaking of the words is a relevant fact, a witness

which lasted 2.9 minutes. The conversation was

may give evidence that they were spoken . A question of

perfectly normal and his father heard the voice of the

hearsay only arises when the words spoken are relied on

deceased woman in the background making comments

testimonial evidence, i.e. as establishing some fact narrated

of a normal character. At about 1.15 pm a telephone call

by the words.

was made from the house; the telephonist at the local

exchange who answered it, stated in evidence at the

Ratten v R [1971] 3 All ER 801. The appellant was

trial: 'I plugged into a number at Echuca, 1494 [the

charged with the murder of his wife. Her death had

appellant's number] and ... I opened the speak key and I

been caused by a wound from a shotgun held by the

said to the person "Number please" and the reply I got

appellant. His explanation was that the discharge was

was "Get me the police please". I kept the speak key

accidental and had occurred while he was cleaning his

open as the person was in an hysterical state and I

gun in the kitchen of their house, 59 Mitchell Street.

connected the call to Echuca 41 which is the police

There was no one else other than their children in the

station. As I was connecting the call the person gave her

house at the time of the shooting. Two shotguns and a

address as 59 Mitchell Street'. The telephonist added

rifle with cleaning materials were found by the police

that, as she was connecting the call to the police station,

when they arrived shortly afterwards. The appellant was

the caller hung up and she (the witness) then told the

unable to explain how the gun from which the shot was

police that they were wanted at 59 Mitchell Street. At

fired had come to be loaded. His evidence was that he

about 1.20 pm a police officer telephoned the

had immediately telephoned for an ambulance and that

appellant's house from the local police station and

shortly after the police had telephoned him, on which

spoke to him. By this time the deceased had been shot.

he had asked them to come immediately. It was

The shooting, from which she had died almost

established that at 1.09 pm on the day in question the

immediately, had, therefore, taken place between 1.12

appellant's father had made a trunk call to the appellant

65

Law of Evidence notes compiled by Yvette Brown 2010-2011

pm and 1.20 pm. At the trial the prosecution sought to

there was ample evidence of the close and intimate

introduce the telephonist's evidence in order to rebut the

connection between the statement ascribed to the

appellant's account of what had occurred immediately

deceased and the shooting which occurred shortly

after the shooting. Objection was taken to this evidence

afterwards; they were closely associated in time and

on the ground that it was hearsay and that it did not

place and the way in which the statement came to be

come within any of the recognised exceptions to the

made and the tone of voice used showed intrinsically

rule against hearsay, but the objection was overruled.

that the statement was being forced from the deceased

On appeal against conviction- Held - The appeal would

by an overwhelming pressure of contemporary event; it

be dismissed for the following reasons-- (i) the

carried its own stamp of spontaneity and this was

evidence of the telephonist was not hearsay evidence

endorsed by the proved time sequence and the proved

and was admissible as evidence of fact relevant to an

proximity of the deceased to the appellant with his gun.

Per Curiam. (i) In determining whether evidence

issue, ie as evidence that, contrary to the appellant's

should be admitted of statements made as part of the

account, a call was made only some three to five

'res gestae' as an exception to the rule against hearsay

minutes before the fatal shooting by a woman who

evidence, the test to be applied should not be the

could only have been the deceased; it was also relevant

uncertain one whether the making of the statement was

as possibly showing (if the jury thought fit to draw the

in some sense part of the event or transaction; the

inference) that the deceased woman was at the time a

proper test is whether the statement was so clearly

state of emotion or fear . ; (ii) even if there was some

made in circumstances of spontaneity and involvement

hearsay element in the evidence and the jury understood

in the event that the possibility of concoction or

the words said to have been used to involve an assertion

fabrication by the maker of the statement can be

of the truth of some facts stated in them, the words were

disregarded; conversely, if the statement was made by

nonetheless admissible as part of the res gestae since

way of narrative of a detached prior event so that the

66

Law of Evidence notes compiled by Yvette Brown 2010-2011

speaker was so disengaged from it as to be able to

If the purpose of adducing the statement is to prove the

truth of the facts stated, then it is hearsay

If the purpose is not to prove the truth of the facts stated

construct or adapt his account, it should be excluded;

and the same is in principle true of statements made

but some other purpose then it is original evidence.

A statement may be adduced for variety of reasons other

before the event . (ii) It is impossible to lay down any

precise rule as to the nature of the proof required to

than proving the truth of the facts contained in it. The most

establish the involvement of the speaker in the pressure

commonly occurring types of original evidence are

of the drama or the concatenation of events leading up

statements adduced to show:

The state of mind or knowledge or belief of the maker

to the crisis; it is unlikely that there would be no

evidence of the connection between the statement and
the principal event other than the statement itself;

of the statement
The state of mind or knowledge or belief of the hearer

of the statement
The statement was made
The statement was false

whether the involvement of the speaker is sufficiently

shown must be a matter for the trial judge but in
coming to his conclusion he may, amongst other things,

Note that before the case of Ratten the statements had to be

take the statement itself into account.

virtually simultaneous after Ratten these statements are

MUST PRINT CASE OF RATTEN AND READ

JUDGMENT

DELIVERED

BY

spontaneous and roughly contemporaneous with the event. This

LORD

is an important distinction and redefinition of this exception

WILBERFORCE CASE APPROXIMATELY 9

rule.

PAGES. WILBERFORCES JUDGMENT IS THE

Ratten has been applied in a number of cases including that of

CASE.

R v Nye & Loan [1978] 66 Crim App 252 . Also see the case

General Comment/Analysis:
The key is to identify the purpose for which the statement is

of R v Turnbull [1985] 80 Cr App R 104 and R V Andrews

[1987] 1 All ER 513. Read the case of Andrews carefully.

being adduced:
67

Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Nye & Loan [1978] 66 Crim App 252 : A Mr L

prescribed limit, and L with assaulting Mr. L. At their

had to brake suddenly while driving his car. As a result

trial Mr. L was not asked to identify his assailant, the

the appellants driving in a Jaguar car immediately

Crown relying on his identification to the constable.

behind him ran into the back of it. Mr L got out to se

The identification evidence was admitted by the trial

what damage had been done. He was assaulted . Both

judge as part of the res gestae, after a trial within a

appellants had been drinking. The Crowns case was

trial as to its admissibility. N denied that he was the

that it was L who was the assailant, that N, the driver,

driver of the Jaguar at the time, and on that aspect of

had got out of the Jaguar and tried to intervene, another

the case, whether the breath test and subsequent

blow was struck at Mr. L, who returned to his own car

laboratory test was validly requested.

to recover. N then went up to him and threatened a

summing up to the jury commented that if N was not

further assault if Mr. L did not remove his car . the

the driver, it was strange that he would agree without

police were summoned. A sergeant saw N sitting in the

demur to give the aforesaid tests. Nevertheless, they,

driving seat of the Jaguar with the engine still running.

the jury, should not draw the inference from that

Mr L approached a constable who accompanied the

circumstance that N was drunk at the time and not

sergeant, told him what had happened, adding that

driving. No account should be taken of the fact that N

man [pointing to L ] hit me in the face . L denied the

supplied the breath test and blood sample when hw did

assault and was arrested . N was arrested after the

not know what was going on. The jury convicted both

sergeant noticed that he smelt of drink and had given

N and L . They appealed, L on the ground that the

him a breath test which proved positive. The statutory

identification evidence had been wrongly admitted, and

procedure followed at the police station and later N was

N on the ground that the jury had been misdirected on

charged with driving while unfit through drink and with

the drinking counts.

driving with a blood alcohol proportion above the

68

The judge in

Law of Evidence notes compiled by Yvette Brown 2010-2011

Held: that i) the evidence of identification was

minutes later. The police were called and they arrived

admissible, for on the facts it was difficult to imagine a

very soon after. The victim, who was seriously

more spontaneous

identification there was no

wounded, told the police that he had been attacked by

opportunity for concoction and no chance of error. Test

two men, and gave the name of the appellant and the

enumerated by Lord Wilberforce in Ratten v R applied;

name and address of the other man before becoming

ii)

any

unconscious. He was then taken to hospital where he

circumstances, have considered any acquiescence by N

died two months later. At the trial of the appellant for

at the police station as supporting the Crowns case ;

murder the Crown sought to have the victim's statement

thus there had been a misdirection; nevertheless there

to the police admitted in evidence. The trial judge ruled

was no reason for thinking that either the conviction of

the statement was admissible. The appellant was

N or L was unsafe or unsatisfactory both of them had

convicted of manslaughter. He appealed to the Court of

been drinking, identification was made by Mr. L within

Appeal, contending that the victim's statement was

a very short time of the incident which had happened,

inadmissible under the rule against the admission of

and as there was suggestion that he deliberately decided

hearsay evidence. The appeal was dismissed and the

to identify one appellant rather than the other;

appellant appealed to the House of Lords. Held -

accordingly, the appeals would be dismissed.

Hearsay evidence of a statement made to a witness by

Although

the

jury

ought

not,

under

the victim of an attack describing how he had received

R v Turnbull [1984] 80 Cr App R 104:

his injuries was admissible in evidence, as part of the

R v Andrews [1987] 1 All ER 513: The appellant and

res gestae, at the trial of the attacker if the statement

another man knocked on the door of the victim's flat

was made in conditions which were sufficiently

and when the victim opened it the appellant stabbed

spontaneous and sufficiently contemporaneous with the

him in the chest and stomach with a knife and the two

event to preclude the possibility of concoction or

men then robbed the flat. The victim was found some
69

Law of Evidence notes compiled by Yvette Brown 2010-2011

distortion. In order for the victim's statement to be

R v Holder [1976] 28 WIR 71 On 6th February 1975

sufficiently spontaneous to be admissible it had to be so

the appellant was convicted before a judge and jury for

closely associated with the event which excited the

the murder of his wife and sentenced to death. The

statement that the victim's mind was still dominated by

evidence showed that his wife was living apart from the

the event. If there was a special feature, eg malice,

appellant at Silver Hill, Christ Church; that on the

giving rise to the possibility of concoction or distortion

evening of 4th September 1974 the police went to her

the trial judge had to be satisfied that the circumstances

home following a report made to them and found her

were such that there was no possibility of concoction or

body on a bed in a state of decomposition; that she had

distortion. However, the possibility of error in the facts

died from shock and haemorrhage from a three-inch

narrated by the victim went to the weight to be attached

would above the left breast; and that she had been last

to the statement by the jury and not to admissibility.

seen alive shortly after 10.00 pm on 1st September. The

Since the victim's statement to the police was made by

case for the Crown was that the appellant had killed his

a seriously injured man in circumstances which were

wife and it was based on the following evidence. A

spontaneous and contemporaneous with the attack and

neighbour of his wife testified that he had seen the

there was thus no possibility of any concoction or

appellant's wife go into her home shortly after 10.00 pm

fabrication of identification, the statement had been

on 1st September, that at about 10.30 pm he had seen

rightly admitted in evidence. The appeal would

the appellant go into her house through the front door

accordingly be dismissed . Ratten v R [1971] 3 All ER

and that about 11.20 pm he had heard the wife shouting

801 applied. R v Bedingfield (1879) 14 Cox CC 341

'murder, murder, I beg you ... don't kill me, Lord have

overruled.

mercy'. A police officer testified that the appellant had

Also look at the West Indian cases of R v Holder [1976] 28

told him when he saw the appellant at the hospital 'Yes,

WIR 71 and R v Tobin [1968] 1 JLR 105.

Inspector, I am glad you come, I kill my wife and I feel

70

Law of Evidence notes compiled by Yvette Brown 2010-2011

I should dead too'. A friend of the wife testified that the

law in receiving into evidence the letter to the

appellant was at the wife's home when he (ie the friend)

appellant's wife, (c) that the evidence given by the

arrived there about 2.15 pm on 1st September and that

neighbour as to the wife's shouts was inadmissible in

when they began to speak after the friend had entered

law and ought not to have been received into evidence,

the house, the friend noticed that the appellant's hands

and (d) that the trial judge erred in law in ruling that the

were trembling. The prosecution tendered in evidence a

alleged confession was voluntary. Held - (i) There was

letter from the friend to the appellant's wife which the

substance in counsel's criticism of the directions to the

police had found open on top of a cabinet in the dining

jury on the standard of proof and merit in the first

room of the wife's home. It was in intimate terms and

ground. (ii) There was no direct evidence that the letter

the prosecution sought to connect this letter with the

had come to the knowledge of the appellant and the

friend's evidence that the appellant's hands were

circumstances did not support a clear inference to that

trembling on the afternoon of 1st September, suggesting

effect. Consequently the letter should not have been

that the appellant had read the letter, had become

admitted in evidence. (iii) The words which the

enraged and had killed his wife in anger. Objection was

neighbour said that he had heard had the character of

taken to the admissibility of the confession and the

contemporaneity. They were not reporting something

letter but both were admitted. The appellant made a

already done nor were they a report of something seen

long unsworn statement in which he set up an alibi. The

by somebody else. The evidence was properly admitted

grounds of appeal argued included (a) that the

within the principles recognised in Ratten v R , that

directions given to the jury on the standard of proof fell

hearsay evidence might be admitted if the statement

short of the high standard required by the criminal law

providing it was made in such conditions (always being

and were contradictory and inconsistent and served

those of approximate but not exact contemporaneity) of

only to confuse the jury, (b) that the trial judge erred in

involvement or pressure as to exclude the possibility of

71

Law of Evidence notes compiled by Yvette Brown 2010-2011

concoction or distortion to the advantage of the maker

gestae; i.e. if they constitute a part of the thing done under a

or the disadvantage of the accused. (iv) The trial judge

recognised exception to the hearsay rule.

did not fully direct his mind to the matters which had

There are a number of cases where the hearsay rule has caused

been raised on counsel's submission with respect to the

inconvenience and proved impracticable . See the rule in the

alleged confession. He adverted solely to the question

case of Myers v DPP [1965] AC 1001, HL. In this case the

whether the confession was voluntary and did not

accused was convicted of a conspiracy concerning stolen cars.

consider whether it should have been excluded on any

It was alleged that the conspiracy involved buying wrecked

other ground. However, in spite of this, the court was

cars together with their logbooks, stealing cars nearly identical

not disposed to say that the statement should not have

to the wrecked ones, disguising the stolen cars so that they

been admitted.

correspond with the logbooks of the wrecked ones, and then

R v Tobin [1968] 1 JLR 105

selling them. In order to show that the cars sold were the stolen
ones, the prosecution called an employee of a car manufacturer

Date: 19 November 2010

to produce microfilm of cards completed by other employees

and showing that the numbers stamped on the cylinder blocks

Statutory Exceptions and Confessions

of the cars sold were identical to those on the cylinder blocks

Read the case of Trevor Gill v Queen [2007] C A No. 15 of

of the cars stolen. The Court of Criminal Appeal upheld the

2006 (in the Court of Appeal Belize A.D. 2007) on the issue

conviction because of the probability that the information in

of res gestae :- the thing done, spontaneous exclamations or

the records were correct, i.e. it was reliable. The House of

statements so closely connected to an occurrence they are

Lords held that the records were inadmissible hearsay and

considered part of that occurrence. Declarations that are subject

should not have been admitted. The records were statements by

to the hearsay rule may be admissible if they qualify as res

unidentifiable workmen that the cars they saw bore certain

cylinder block numbers and the witness called was unable to
72

Law of Evidence notes compiled by Yvette Brown 2010-2011

give any direct evidence that the numbers in the records were

identification marks and plates and had replaced them

the numbers on the cars.

on the rebuilt cars, so that the numbers registered in

respect of those cars corresponded. In order to establish

Myers v DPP [1965] AC 1001: The appellant was

that the cars admittedly sold by the appellant were the

charged with another man upon an indictment

stolen cars disguised, the prosecution called as

containing seven counts; the first count charged both

witnesses employees of the manufacturers of the cars,

men with conspiracy to receive stolen cars, the second

who produced records compiled by various workmen as

with conspiracy to defraud the purchasers of the stolen

the cars were made purporting to show the engine,

cars and the remaining counts with resolving five cars

chassis, and cylinder block numbers which had been

knowing them to have been stolen. The prosecution

recorded on a card by employees of the manufacturers

sought to establish that, in the case of each of 22 cars,

as the car was being originally made. Of those numbers,

an identical wrecked car had been purchased by the

the cylinder block number alone was moulded into a

appellant, or the other man, and that the stolen cars had

secret part of the block and could not be obliterated or

been sold by them after each one had been given the

removed. The witnesses called were persons charged

registration number and other identification numbers of

with the keeping of those records and not with their

the wrecked car so purchased. The owner of each stolen

compilation. The defence objected to the admission of

car was asked to identify it. The appellant admitted

that evidence on the ground that it was hearsay, and that

purchasing 12 of the wrecked cars and selling 12 cars

the manufacturers' records could not be tendered as

bearing the same registration numbers as the 12

proof of the truth of the facts stated therein. The trial

wrecked cars, but he contended that the wrecked cars

judge admitted the evidence. The appellant was

had been repaired and rebuilt, and that they were not

convicted and appealed on the ground that the evidence

the stolen cars. Further he contended that in rebuilding

ought to have been excluded. The Court of Criminal

the wrecked cars he had innocently removed the

73

Law of Evidence notes compiled by Yvette Brown 2010-2011

Appeal dismissed his appeal. On appeal to the House of

Sturla v. Freccia (1880) 5 App.Cas. 623, H.L. applied.

Lords:- Held (1) (Lord Pearce and Lord Donovan

Per Lord Reid. I have never taken a narrow view of

dissenting), that it was established law that as a general

the functions of this House as an appellate tribunal.

rule hearsay evidence was not admissible, and that

The common law must be developed to meet

authority must be found to justify its reception within

changing economic conditions and habits of thought,

some established and existing exceptions to the rule, for

and I would not be deterred by expressions of opinion

to countenance new exceptions thereto would amount

in this House in old cases. But there are limits to what

to judicial legislation. These records could not be

we can do or should do. If we are to extend the law it

brought within the exception relating to public

must be by the development and application of

documents open to inspection by the public nor any

fundamental principles. We cannot introduce arbitrary

other established exception. They could not be

conditions or limitations; that must be left to

admissible as evidence except for the purpose of

legislation (2) But that the admissible evidence was

tending to prove what they recorded to be true; they

so undeniably impressive and weighty as to warrant

could not be accepted to corroborate other evidence

the application of the proviso to section 4 (1) of the

unless they could stand on their own feet. Nor were

Criminal Appeal Act, 1907, and that, accordingly, the

they admissible on the ground that a trial judge has a

appeal would be dismissed.

discretion to admit a record in a particular case if

satisfied that it was trustworthy and that justice required

Decision of the Court of Criminal Appeal, sub nom.

its admission, for that would be an innovation on the

Reg. v. Myers, post, p. 1005; [1964] 1 All E.R. 877,

existing law which decided admissibility by categories

C.C.A. reversed on the point of law.

and not by apparent trustworthiness. Accordingly, this

evidence ought not to have been admitted at the trial.
74

Law of Evidence notes compiled by Yvette Brown 2010-2011

In the UK parliament has reversed the position in the case law

Section 31B gives the definition of document

as outlined in Myers v DPP [1965] by legislation (Evidence

which is wide and includes maps, plans,

Act 2003 reforms the Criminal Evidence Act [1968] and Civil

drawings, photographs, discs, tapes, other kind

Evidence Act [1968]). The Statutory provisions for Jamaica

of data storage equipment.

Sections 31C & 31D addresses admissibility of

are to be found in the Evidence Act amended by Evidence

written statements in criminal proceedings and

Amendment Act 1995 .

and

Evidence Act: Jamaica

Kindly note the following statutory provisions in
relations to hears say
The statute

evidence :
introduced several

statutory

as

hearsay

criminal cases
Sections 31E deals with admissibility of
hearsay statements in civil cases.
Sections 31F deals with admissibility of

formerly admissible at common law, definition

admissible

first-hand

31C & 31D addresses hearsay statements in

31 A,B,C (i.e. admissibility of certain evidence

documents

of

statements in criminal proceedings. Sections

exceptions to the rule as hearsay, see sections

of

admissibility

business documents in criminal and civil cases.

evidence,

Therefore this would cover Myers v DPP

admissibility of written statements in criminal

[1965] .
Sections 31G & 31H (admissibility of computer

proceedings).
A main change is the introduction of a new

evidence constituting hearsay, admissibility of

PART 1A Hearsay and Computer Generated

computer evidence not constituting hearsay)

Evidence.
Take note that section 31A preserves the old

deals with admissibility of computer generated

common law exceptions (i.e. res gestae,

statements,

statements in public documents, statements of

computer equipment works properly and that

the deceased)
75

subject

to

evidence

that

the

Law of Evidence notes compiled by Yvette Brown 2010-2011

the programme the equipment is using was

A confession is an admission of guilt or other incriminating

designed to achieve these statments.

Section 31I (witness previous statement to be

statement by the accused; not admissible at trial unless

evidence

of

facts

stated)

deals

voluntarily made.

with

A confession may also be defined as any statement

admissibility of previous inconsistent statement

wholly or partly adverse to the person who made it,

in civil proceedings.
Section 31J (admissibility of evidence as to

whether made to a person in authority or not and

credibility of matter of statement) admissibility

whether made in words or otherwise. This is a general

of evidence re credibility of person not called as

definition but note also that it is as outlined in section

witness. Impact ? challenge witness in box to

82(1) PACE 1984 which is not applicable to Jamaica.

suggest bias, but if hearsay statement put in

But note it is a reasonable summation of the common

law rule.

there is no opportunity to confront witness.

Section 31K (offences) applies perjury

In criminal cases admissions made by defendants relevant to

legislation to hearsay statements admissible

the said defendants guilt to a person in authority is described

under the Act.

Section 31L (power of court to exclude

as a confession. There is sometimes a difficulty which arises

when one needs to make a distinction between an admission

evidence) deals with the power of the court to

and a confession. It is important to take special note that

exclude evidence if, in the opinion of the court,

statements amount to a confession when made to a person in

the prejudicial effect of that evidence outweighs

authority . Confessions are subject to the rule at common law

its probative value.

that they can only be admitted in evidence by the prosecution

TOPIC: CONFESSIONS

against the accused person if it is proved by the prosecution

beyond reasonable doubt that the confession was voluntarily
made. Note the case of Ibrahim v R [1914] AC 599 at page
76

Law of Evidence notes compiled by Yvette Brown 2010-2011

609 per Lord Sumner to which all later authorities refer. It

jurisdiction conferred by this Order extends to the persons

must be shown by the prosecution to have been voluntary in

and matters following, in so far as by treaty, grant, usage,

the sense that it has not been obtained either

by fear of

sufferance or other lawful means, His Majesty has

prejudice or hope of advantage exercised or held out by a

jurisdiction in relation to such matters and things, that is to

person in authority.

say: (1.) British subjects, as herein defined, within the

limits of this Order;.... (3.) foreigners, in the cases and
according to the conditions specified in this Order and not

Ibrahim v r [1914] AC 599 at page 609: The appellant,

otherwise; (4.) foreigners, with respect to whom any State,

who was a subject of the Ameer of Afghanistan, was

King, chief or government, whose subjects or under whose

enrolled as a private in the 126th Baluchistan Infantry and

protection they are, has, by any treaty as herein defined or

made an affirmation of allegiance. On September 4, 1912,

otherwise, agreed with His Majesty for, or consents to the

while he was serving with a detachment of that regiment on

exercise of power or authority by His Majesty." Art. III.

Shameen Island at Canton, a native officer of the regiment

provides that "British subject includes a British-protected

was murdered; the appellant was taken into custody on the

person, that is to say, a person, who either (a) is a native of

spot and charged with the murder. Under a warrant issued

any protectorate of His Majesty and is for the time being in

by a judge of His Majesty's Supreme Court for China, he

China or Corea, or (b) by virtue of the Foreign Jurisdiction

was removed to Hong Kong, where he was tried by the

Act or otherwise, enjoys sis Majesty's protection in China

Supreme Court of that Colony and a jury, and upon

or Corea." Art. L. provides that "where a British subject is

conviction was sentenced to death. The jurisdiction of the

accused of an offence the cognizance of which appertains

Supreme Court of China and Corea includes criminal

to any Court established under this Order,.... he may be sent

jurisdiction and is conferred by the Foreign Jurisdiction

for trial to Hong Kong or to Burma."

Act, 1890, and the China and Corea Order in Council,

1904. Art. V. of that Order provides as follows: "the
77

Law of Evidence notes compiled by Yvette Brown 2010-2011

At the trial uncontradicted evidence was given that the

not precluded from hearing the evidence which established

jurisdiction exercised at Canton on Shameen was the same

its jurisdiction by reason of the Foreign Jurisdiction Act,

exterritorial jurisdiction as is exercised throughout China

1890, s. 4, which provides for the decision of a Secretary

and Corea under the Order in Council, that soldiers in

of State upon the application of the Court; (4.) that the

Indian regiments enjoy the protection of His Majesty on

appellant's confession was a voluntary statement in the

Shameen, and that the Court exercises jurisdiction over

sense that it was not made either from fear of prejudice or

them. The evidence of the officer in command of the

hope of advantage, and that, even if it was inadmissible in

detachment was admitted that ten or fifteen minutes after

evidence upon the ground that it was made by him in

the murder he said to the appellant, who was then in

answer to his officer in whose custody he was (as to which

custody, "Why have you done such a senseless act?" to

the law was not settled), its admission, having regard to

which the appellant replied, "Some three or four days he

the other evidence given and to the circumstances of the

has been abusing me; without a doubt I killed him." There

case, was not such a violation of the principles of natural

was a body of other evidence which clearly established the

justice as entitled the appellant, according to the practice

guilt of the appellant, and rendered it very improbable that

of the Board, to have his conviction set aside.

a jury would have acquitted him if his confession had been

excluded:- Held, (1.) that the evidence established that "by

The question arises who is person in authority? Anyone who

usage, sufferance or other lawful means" His Majesty has

the the defendant might reasonably consider as capable of

jurisdiction at Canton, and that the appellant was a British

influencing his treatment or the conduct of the prosecution

subject within art. III. of the Order; (2.) that the

against him. See the case of Deokinanan v R 1969 1 AC 20,

jurisdiction was not prevented from extending to the

(1968) 11 WIR 482 where confession was made to a cell mate

appellant as a British subject within art. III. by the words

in prison. The cell mate was able to give evidence since he was

"and not otherwise" in art. V. (3.); (3.) that the Court was

not a person in authority. The English cases show gentle

78

Law of Evidence notes compiled by Yvette Brown 2010-2011

exhortations and inducements . In the Caribbean our cases have

this occasion he gave his friend detailed information

to do with violence . There is also a growing area of oppression

about the circumstances of the murder, together with

, this is a fuzzy area, but it excludes confessions. A man was

directions relative to the retrieving of a sum of money

charged with multiple counts of forgery. On the 25th charge he

which the appellant had hidden and which, it was

made a statement to police confessing on Christmas eve. The

alleged by the prosecution, the appellant had taken

Police assumed he had been beaten between the 14th

from the person of the deceased. The friend had

December and 24th December, however he said the police did

promised to assist in retrieving the money. Acting on

not say anything to him or beat him. The evidence was that he

the information which was conveyed to them by the

was a family man who had 6 children depending on him . For

appellant's friend, the police found the money. At the

two weeks before Christmas no one said anything to him. It is

trial, upon the prosecution attempting to lead the

suggested that he gave the confession because he wanted to go

evidence of the conversation in the lock-ups,

home. The confession was excluded. This case illustrates that it

objection was taken by the defence that the statement

is not just physical violence that is to be considered, but that

was not a voluntary one in that it had been induced by

other elements may lead to a confession being made, for e.g. a

a person in authority holding out a promise to the

dirty cell.

appellant. The statement was admitted, and the

appellant convicted. The appellant's appeal to the

Deokinanan v R 1969 1 AC 20, (1968) 11 WIR

Guyana Court of Appeal was dismissed. Held: upon

482: The appellant was charged with murder. While

appeal to the Privy Council, it was held that the

in custody, he was visited by a friend from whom he

statement was not made as a result of an inducement,

requested help in connection with the offence with

and that the friend was not a person in authority.

which he was then charged. Later a meeting was

Comrs of Customs and Excise v Harz (Comrs of

arranged to take place in the lockups by the police

Customs and Excise v Harz and Another [1967] AC

whereby the appellant again met his friend, and on

79

Law of Evidence notes compiled by Yvette Brown 2010-2011

760 [1967] 1 All ER 177) considered. Decision of

R v Zaveckas [1970] 1 All ER 413The appellant,

Guyana Court of Appeal ((1966) 9 WIR 510)

suspected by the police of having been connected

affirmed. Appeal dismissed.

with the commission of an offence, was told by a

police officer that an identification parade had been

It is clear from the case law that a promise/inducement upon

arranged; if he was not picked out he would be

which a complaint is made need not originate from the person

allowed to go. He then asked the officer whether he

in authority provided it is acquiesced in or tacitly approved by

the person in authority. See the case of

would be given bail at once if he made a statement.

Rv

The police officer said 'Yes' and the appellant made a

Munroe [1972] 56 Cr App R 373, in that case a 16 year old

statement admitting guilt. On the question whether

boy was arrested, the father was called and in the police station

the statement was admissible, Held The question

the father said in the presence of police, you had better give a

asked by the appellant together with the police

statement and then we can go home. It was held that the police

officer's answer amounted to an inducement;

tacitly approved. The confession subsequently made was held

accordingly, since the statement followed an

to be inadmissible. Even if its the defendant himself who

inducement held out by a person in authority of the

brings up the question of whether he will be allowed some

advantage of getting bail the statement was

favour, the statement may never the less be inadmissible,

inadmissible (see p 416 e, post). R v Northam (1967)

provided that person in authority does not dissociate himself

52 Cr App Rep 97 followed.

from any implied promise or inducement. See the case of R v

Zaveckas [1970] 1 All ER 413, also see decision of HoL in

DPP

v Ping Lin [1975] 3 All ER 175: Police

DPP v Ping Lin [1975] 3 All ER 175.

officers discovered the appellant smoking heroin in

his flat in the company of two friends. Substantial
quantities of Chinese heroin were found in the flat.
The appellant and his two friends were taken into
80

Law of Evidence notes compiled by Yvette Brown 2010-2011

custody. On the following day, after a caution had

of his supplier of heroin who was subsequently

been administered, the appellant was questioned by a

arrested by the police. The appellant and two others

detective superintendent. At first the appellant

were charged with conspiring with one another and

maintained that he was not a dealer but only a smoker

with other persons to contravene the Misuse of Drugs

of the drug. He admitted that he had obtained the

Act 1971. At the appellant's trial, objection was taken

heroin from 'a man in Gerrard Street'. The appellant

to the admissibility of the appellant's verbal

then said: 'You let me go, and I find you man plenty

statements to the superintendent on the ground that

heroin.' The superintendent replied: 'That can't be

they

done', and continued his interrogation of the

superintendent's remark concerning the view which a

appellant. The superintendent suggested to the

judge might take when he came to sentence the

appellant that he had habitually dealt with drugs in a

appellant. The trial judge ruled that the statements

big way. The appellant then admitted in effect that he

were voluntary and should be admitted. The appellant

was a dealer on a retail scale by saying: 'Yes. All

was convicted and appealed. Held (i) Where an

right. But I don't sell much.' He added: 'Let me out,

objection was raised in criminal proceedings to the

and I'll get you a man with a big packet.' The

admission of an alleged confession by the accused,

superintendent again said 'That can't be done'. The

the onus was on the prosecution to satisfy the judge

appellant then said: 'If I help police, can you help

beyond reasonable doubt that the statement in

me?' The superintendent replied: 'I can make no deal

question had been made voluntarily by showing that it

with you', but then added: 'If you show the judge that

had not been obtained either by fear of prejudice or

you have helped the police to trace bigger drug

hope of advantage excited or held out by a person in

people, I am sure he will bear it in mind when he

authority. The judge had to determine the issue as one

sentences you.' The appellant then disclosed the name

of fact and causation, ie whether the Crown had

81

had

been

induced

by

reason

of

the

Law of Evidence notes compiled by Yvette Brown 2010-2011

proved that the statement had not been made as a

only do so if satisfied that the judge had made a

result of something said or done by a person in

completely wrong assessment of the evidence or had

authority. It was not sufficient for the Crown to show

failed to apply the correct principle. In all the

that the person in authority had not intended to extract

circumstances of the instant case, and particularly in

a confession or that there had been no impropriety on

view of the fact that the appellant had made his

his part; what was necessary was to show, as a matter

confession to retail trading before any possible

of fact, that the statement in question had not been

inducement had been made to him, it could not be

obtained in consequence of something said or done by

said that the judge had erred in principle and the

him which amounted to an express or implicit threat

appeal would therefore be dismissed.

or promise to the accused (see p 177 a d f and j to p

Note that for a statement to be inadmissible it must be clear

178 a and g h, p 182 a and b, p 183 a to c, p 184 a to

that the inducement continued to operate at the time when it

f, p 186 b c and f, p 187 f and g and p 188 a and c to

was made. Causation is important, the point is, did the

e, post); dicta of Cave J in R v Thompson[18914] All

statement cause it, a lapse off time may have something to do

ER Rep at 378 and of Lord Sumner in Ibrahim v R

with it . See the case of R v Smith [1959] 2 QB 35 where a

[191415] All ER Rep at 877 applied; dictum of Lord

number of soldiers were involved in a fight in a parade.

Widgery CJ in R v Isequilla [1975] 1 All ER at 82

disapproved. (ii) On appeal against a judge's decision

R v Smith 1959 2 QB 35: The appellant, a private

to admit a confession as having been made

soldier, was charged with the murder by stabbing of a

voluntarily, the court should not disturb the judge's

soldier of another regiment during a barrack-room

findings merely because of difficulties in reconciling

fight. Immediately after the fight the appellant's

them with different findings of fact, on apparently

regimental sergeant-major put his company on parade

similar evidence, in other reported cases, but should

and indicated that the men would be kept there until

82

Law of Evidence notes compiled by Yvette Brown 2010-2011

he learnt who had been involved in the fighting. At

made, then that statement also was inadmissible; only

the trial the judge-advocate admitted in evidence a

if the time-limit between the two statements, the

statement made by the appellant to the sergeant-major

circumstances existing at the time and the caution

at that parade, confessing to the stabbing. Evidence

were such that it could be said that the original threat

was also given of a subsequent confession made the

or inducement had been dissipated could the second

following day to a sergeant of the Special

statement be admitted as a voluntary statement; in the

Investigation Branch after a caution had been

present case the effect of the original inducement was

administered. The deceased man had received two

spent and the second statement was admissible. (3)

bayonet wounds, one of which pierced the lung and

That, as at the time of death the original wound was

caused haemorrhage. While being carried to the

still an operating and a substantial cause, death could

medical reception station for treatment he was

properly be said to be the result of the wound, albeit

dropped twice. At the reception station he was given

that some other cause also operated.

treatment which was subsequently shown to have

In addition, a confession made in oppressive circumstances

been incorrect. The appellant was convicted and

may also be inadmissible. Oppression defined in this context

appealed on the grounds, inter alia, that the alleged

connotes some factors which tend to sap and did in fact sap the

confessions were wrongly admitted in evidence and

defendants free will. Relevant factors equal the length of

that the court was not properly directed as to

questioning, whether adequate refreshment and amenities were

causation:- Held, (1) that the confession obtained by

made available to the defendant. You will not find any

the regimental sergeant-major was tainted by threat or

objective definition of oppression in the cases and whether

inducement and was inadmissible. (2) That if the

circumstances oppressive or not depends not only on

threat or promise under which the first statement was

circumstances themselves, but on characteristics of the

made still persisted when the second statement was

individual defendant.
83

Law of Evidence notes compiled by Yvette Brown 2010-2011

or fears, or so affects the mind of the suspect that his

Look at the case of R v Prager [1972] 56 Cr App R 15, [1972]

will crumbles and he speaks when otherwise he

1 All ER 1114, 56 Cr App Rep 151.

would have remained silent.

R v Prager [1972] 56 Cr App R 15, The Judges'

Rules 1964 are not rules of law and their non-

The Judges Rules

Rules laid down by judges of English High Court in 1912.

observance will not necessarily lead to a confession

They have been subsequently revised and applied throughout

being excluded from evidence, unless it is shown that

the Commonwealth Caribbean . In some places they have been

the confession was not made voluntarily. Accordingly

adopted e.g. Belize. These rules are now

where it is alleged that a confession has been obtained

Practice Directions [1964 ]1 All ER 237.

in the course of questioning which was not introduced

reproduced in

All England Law Reports/1964/Volume 1

by a caution in accordance with r 2 of the 1964 rules

/Practice

it is open to the trial judge to admit the confession on

Note;

(Judge's

rules)

[1964] 1 All ER 237

the basis that it was made voluntarily without ruling

Practice Note; (Judge's rules)
Criminal Law - Evidence - Admissibility -

on the question whether it was obtained in breach of

the rules . In order to establish that a confession is not

Confessions, answers and statements to the

voluntary in that it was obtained by 'oppression', it

police - Judges' Rules.

must be shown that it was obtained in circumstances

Notes

which tended to sap, and did sap, the free will of the
suspect. 'Oppressive questioning' may be described as

As to the earlier Judges' Rules, see 10

questioning which by its nature, duration or other

Halsbury's Laws (3rd Edn) 470-473, para 865.

attendant circumstances (including the fact of

At the sitting of the Court Of Criminal Appeal

custody) excites hopes (such as the hope of release)

on 24 January 1964, Lord Parker CJ said:

84

Law of Evidence notes compiled by Yvette Brown 2010-2011

Before commencing the List for today, I should

been taken into custody so long as he has not

like to announce the revised editiona of the

been charged with the offence or informed that

Judges' Rules dealing with the admissibility in

he may be prosecuted for it.

[1964] 1 All ER 237 at 238

evidence at the trial of any person of answers

and statements made by him to police officers.

2. As soon as a police officer has evidence

These rules, which apply in England and Wales

which would afford reasonable grounds for

and which will come into force on Monday, 27

suspecting that a person has committed an

January 1964, are designed to secureb that only

offence, he shall caution that person or cause

answers and statements which are voluntary are

him to be cautioned before putting to him any

admitted in evidence against their makers and to

questions, or further questions, relating to that

provide guidance to police officers in the

offence.

performance of their duties. The admissibility of

The caution shall be in the following terms:

"You are not obliged to say

answers and statements obtained before 27

January 1964, will continue to be governed by

anything unless you wish to do so

the old rules.

but what you say may be put into

Judges' Rules

writing and given in evidence."

When after being cautioned a person is being

1. When a police officer is trying to discover

questioned, or elects to make a statement, a

whether, or by whom, an offence has been

record shall be kept of the time and place at

committed he is entitled to question any person,

which any such questioning or statement began

whether suspected or not, from whom he thinks

and ended and of the persons present.

a
(1) The new Judges' Rules were made

that useful information may be obtained. This is

by Her Majesty's Judges of the Queen's

so whether or not the person in question has

85

Law of Evidence notes compiled by Yvette Brown 2010-2011

Bench Division and supersede the rules

referred to in footnote (1) ante, explains

previously made by the judges. They are

that the judges control the conduct of

published by HMSO as an appendix to

trials and the admission of evidence

Home Office Circular No 31/1964, dated

against persons on trial before them, but

January 1964, in a pamphlet entitled

do not control or in any way initiate or

"Judges'

Administrative

supervise police activities or conduct. The

Directions to the Police". The rules

rules do not purport to deal with many

reproduced above are those set out in

varieties of conduct which might render

Appendix A to this circular. Appendix B

answers and statements involuntary and

contains

on

therefore inadmissible, but deal merely

interrogation and the taking of statements;

with particular aspects of the matter. The

since these are not part of the rules to

administrative directions are set out at

which the Lord Chief Justice refers in his

footnote (3), pp 239, 240, post.

Appendix A, in the introduction before

Rules

and

administrative

directions

statement reported above they are not

the terms of the Rules are set out, contains

reproduced in the text, but for the

the following statement: "These Rules do

convenience of practitioners are set out in

not affect the principles (a) that citizens

footnote (3), pp 239, 240, post. The

have a duty to help a police officer to

Publishers gratefully acknowledge the

courtesy

of

the

Controller

of

discover and apprehend offenders; (b) that

Her

police officers, otherwise than by arrest,

Majesty's Stationery Office in permitting

cannot compel any person against his will

reproduction of this material

b
(2) A note printed before the Judges'

to come to or remain in any police station;

Rules in Appendix A in the pamphlet

(c) that every person at any stage of an

86

Law of Evidence notes compiled by Yvette Brown 2010-2011

investigation

should

be

able

to

exercised or held out by a person in

communicate and to consult privately

authority, or by oppression.
"The principle set out in para. (e) above is

with a solicitor. This is so even if he is in

overriding and applicable in all cases.

custody provided that in such a case no

Within that principle the Judges' Rules are

unreasonable delay or hindrance is caused

put forward as a guide to police officers

to the processes of investigation or the

conducting

administration of justice by his doing so;

investigations.

Non-

conformity with these rules may render

(d) that when a police officer who is

answers and statements liable to be

making inquiries of any person about an

excluded from evidence in subsequent

offence has enough evidence to prefer a

criminal proceedings."

charge against that person for the offence,

he should without delay cause that person

3. (a) Where a person is charged with or

to be charged or informed that he may be

informed that he may be prosecuted for an

prosecuted for the offence; (e) that it is a

offence he shall be cautioned in the following

fundamental condition of the admissibility

terms:
"Do you wish to say anything? You

in evidence against any person, equally of

are not obliged to say anything

any oral answer given by that person to a

unless you wish to do so but

question put by a police officer and of any

whatever you say will be taken

statement made by that person, that it

down in writing and may be given

shall have been voluntary, in the sense

in evidence."

that it has not been obtained from him by

fear of prejudice or hope of advantage,
87

Law of Evidence notes compiled by Yvette Brown 2010-2011

(b) It is only in exceptional cases that questions

Any questions put and answers given relating to

relating to the offence should be put to the

the

accused person after he has been charged or

recorded in full and the record signed by that

informed that he may be prosecuted. Such

person or if he refuses by the interrogating

questions may be put where they are necessary

officer.

for the purpose of preventing or minimising

offence

must

be

contemporaneously

(c) When such a person is being questioned, or

harm or loss to some other person or to the

elects to make a statement, a record shall be

public or for clearing up an ambiguity in a

kept of the time and place at which any

previous answer or statement.

questioning or statement began and ended and

Before any such questions are put the accused

of the persons present.

should be cautioned in these terms:

"I wish to put some questions to

4. All written statements made after caution

shall be taken in the following manner: (a) If a

you about the offence with which

person says that he wants to make a statement

you have been charged (or about

he shall be told that it is intended to make a

the offence for which you may be

written record of what he says. He shall always

prosecuted). You are not obliged to

be asked whether he wishes to write down

answer any of these questions, but

himself what he wants to say; if he says that he

if you do the questions and answers

cannot write or that he would like someone to

will be taken down in writing and

write it for him, a police officer may offer to

may be given in evidence."

write the statement for him. If he accepts the

offer the police officer shall, before starting, ask

88

Law of Evidence notes compiled by Yvette Brown 2010-2011

the person making the statement to sign, or

(d) Whenever a police officer writes the

make his mark to, the following:

"I,... ... ... ; wish to make a

statement, he shall take down the exact words

spoken by the person making the statement,

statement. I want someone to write

without putting any

down what I say. I have been told

questions other than such as may be needed to

that I need not say anything unless I

make the statement coherent, intelligible and

wish to do so and that whatever I

relevant to the material matters: he shall not

say may be given in evidence."

prompt him.
(b) Any person writing his own statement shall
(e) When the writing of a statement by a police

be allowed to do so without any prompting as

officer is finished the person making it shall be

distinct from indicating to him what matters are

asked to read it and to make any corrections,

material.

alterations or additions he wishes. When he has

(c) The person making the statement, if he is

finished reading it he shall be asked to write and

going to write it himself, shall be asked to write

sign or make his mark on the following

out and sign before writing what he wants to

certificate at the end of the statement:

"I have read the above statement

say, the following:

"I make this statement of my own

and I have been told that I can

free will. I have been told that I

correct, alter or add anything I

need not say anything unless I wish

wish. This statement is true. I have

to do so and that whatever I say

made it of my own free will."

may be given in evidence."

(f) If the person who has made a statement
refuses to read it or to write the above
89

Law of Evidence notes compiled by Yvette Brown 2010-2011

mentioned certificate at the end of it or to sign

statement in reply, or starts to say something, he

it, the senior police officer present shall record

shall at once be cautioned or further cautioned

on the statement itself and in the presence of the

as prescribed by rule 3 (a).

person making it, what has happened. If the

6. Persons other than police officers charged

person making the statement cannot read, or

with the duty of investigating offences or

refuses to read it, the officer who has taken it

charging offenders shall, so far as may be

down shall read it over to him and ask him

practicable, comply with these rules.c

whether he would like to correct, alter or add

c

anything and to put his signature or make his

(3) The following "Administrative

Directions on Interrogation and the

mark at the end. The police officer shall then

Taking of Statements" are included in

certify on the statement itself what he has done.

Appendix B to Home Office Circular No

5. If at any time after a person has been charged
with, or has been informed that he may be

31/1964.
"1. Procedure generally. (a) When

prosecuted for an offence a police officer wishes

possible statements of persons under

to bring to the notice of that person any written

caution should be written on the forms

statement made by another person who in

provided for the purpose. Police officers'

respect of the same offence has also been

notebooks should be used for taking

charged or informed that he may be prosecuted,

statements only when no forms are

he shall hand to that person a true copy of such

available."
(b) When a person is being questioned or

written statement, but nothing shall be said or

elects to make a statement, a record

done to invite any reply or comment. If that

should be kept of the time or times at

person says that he would like to make a

90

Law of Evidence notes compiled by Yvette Brown 2010-2011

which during the questioning or making

and place at which any such questioning

of a statement there were intervals or

began and ended and of the persons

refreshment was taken. The nature of the

present; (b) when, after being cautioned in

refreshment should be noted. In no

accordance with rule 3 (a) or (b) a person

circumstances should alcoholic drink be

is being questioned or elects to make a

given.
(c) In writing down a statement, the words

statement--of the time and place at which

any questioning and statement began and

used should not be translated into 'official'

vocabulary; this may give a misleading

ended and of the persons present."

In addition to the records required by

impression of the genuineness of the

these rules full records of the following

statement.
(d) Care should be taken to avoid any

matters should additionally be kept: (a) of

the time or times at which cautions were

suggestion that the person's answers can

taken, and (b) of the time when a charge

only be used in evidence against him, as

was made and/or the person was arrested,

this may prevent an innocent person

and (c) of the matters referred to in para 1

making a statement which might help to

(b) above.
If two or more police officers are present

clear him of the charge.

"2. Record of interrogation. Rule 2 and

when the questions are being put or the

rule 3 (c) demand that a record should be

statement made, the records made should

kept of the following matters: (a) when,

be countersigned by the other officers

after being cautioned in accordance with

rule 2, the person is being questioned or

present.
"3.
Comfort

elects to make a statement--of the time

Reasonable arrangements should be made

91

and

refreshment.

Law of Evidence notes compiled by Yvette Brown 2010-2011

for the comfort and refreshment of

his native language: (a) the interpreter

persons

should take down the statement in the

being

practicable

questioned.

both

the

Whenever

person

being

language in which it is made. (b) An

questioned or making a statement and the

official English translation should be

officers asking the questions or taking the

made in due course and be proved as an

statement should be seated."

"4. Interrogation of children and young

exhibit with the original statement. (c)

The foreigner should sign the statement at

persons. As far as practicable children

(whether suspected of crime or not)

(a)."
Apart from the question of apparent

should only be interviewed in the

unfairness, to obtain the signature of a

presence of a parent or guardian, or, in

suspect to an English translation of what

their absence, some person who is not a

he said in a foreign language can have

police officer and is of the same sex as the

little or no value as evidence if the suspect

child. A child or young person should not

disputes the accuracy of this record of his

be arrested, nor even interviewed, at

statement.
"6. Supply to accused persons of

school if such action can possibly be

written statement of charges. (a) The

avoided. Where it is found essential to

following procedure should be adopted

conduct the interview at school, this

whenever a charge is preferred against a

should be done only with the consent, and

person arrested without warrant for any

in the presence, of the head teacher, or his

offence: As soon as a charge has been

nominee."
"5. Interrogation of foreigners. In the

accepted by the appropriate police officer

case of a foreigner making a statement in

the accused person should be given a

92

Law of Evidence notes compiled by Yvette Brown 2010-2011

written notice containing a copy of the

whatever you say will be taken down in

entry in the charge sheet or book giving

writing and may be given in evidence.'

(b) Once the accused person has appeared

particulars of the offence with which he is

before the court it is not necessary to

charged. So far as possible the particulars

serve him with a written notice of any

of the charge should be stated in simple

further charges which may be preferred.

language so that the assured person may

If, however, the police decide, before he

understand it, but they should also show

has appeared before a court, to modify the

clearly the precise offence in law with

charge or to prefer further charges, it is

which he is charged. Where the offence

desirable that the person concerned

charged is a statutory one, it should be

should be formally charged with the

sufficient for the latter purpose to quote

further offence and given a written copy

the section of the statute which created

of the charge as soon as it is possible to

the offence. The written notice should

do so having regard to the particular

include some statement on the lines of the

circumstances of the case. If the accused

caution given orally to the accused person

person has then been released on bail, it

in accordance with the Judges' Rules after

may not

a charge has been preferred. It is

always

be

practicable

or

reasonable to prefer the new charge at

suggested that the form of notice should

once, and in cases where he is due to

begin with the following words:"

'You are charged with the offence(s)

surrender to his bail within forty-eight

shown below. You are not obliged to say

hours or in other cases of difficulty it will

anything unless you wish to do so, but

be sufficient for him to be formally

charged with the further offence and
93

Law of Evidence notes compiled by Yvette Brown 2010-2011

served with a written notice of the charge

persons in custody should be drawn to

after he has surrendered to his bail and

these notices."

before he appears before the court.

"7. Facilities for defence. (a) A person in

Judges rules are not rules of law but designed to offer

guidelines

custody should be allowed to speak on the

to

police

officers

and

other

professional

investigators involved in the investigation of crime. While a

telephone to his solicitor or to his friends

breach of The

provided that no hindrance is reasonably

Judges Rules do not by itself render a

statement subsequently made, inadmissible, a court may in

likely to be caused to the processes of

exercise of its discretion refuse to admit a statement made in

investigation, or the administration of

breach of the rules. They are merely administrative guidelines.

justice by his doing so."

He should be supplied on request with

Note that while voluntariness remains the most important

writing materials and his letters should be

criteria of admissibility of a confession it is not the sole criteria

sent by post or otherwise with the least

possible delay. Additionally, telegrams

A Judge has discretion to exclude the evidence if in his view

should be sent at once, at his own

circumstances in which they are obtained were unfair and

expense.
(b) Persons in custody should not only be

oppressive, see the case of R v Sang [1980] AC 402.

R v Sang [1980] AC 402: Two defendants were

informed orally of the rights and facilities

indicted on counts of conspiracy to utter forged

available to them, but in addition notices

banknotes

describing them should be displayed at

and

unlawful

possession

of

forged

banknotes. They pleaded not guilty and counsel invited

convenient and conspicuous places at

the trial judge to allow a trial within a trial to determine

police stations and the attention of

whether the activities referred to in the indictment came

about as a result of incitement by an agent provocateur.
94

Law of Evidence notes compiled by Yvette Brown 2010-2011

Counsel hoped that having established the facts, he

discretion to exclude evidence that it was obtained as

would persuade the judge to exercise his discretion to

the result of the activities of an agent provocateur

exclude any prosecution evidence of the commission of

APPEALS against conviction. On October 13, 1977,

offences so incited. The judge, doubting the existence

the defendants, Leonard Anthony Kimyou Sang and

of any such discretion, invited counsel to argue the

Matthew Mangan, were jointly indicted at the Central

point on the assumption that the necessary facts had

Criminal Court and pleaded not guilty. Following a

been established. After argument, the judge ruled that

preliminary ruling by the trial judge, Judge Buzzard,

he had no such discretion. Thereupon the defendants

that he had no discretion to refuse to admit evidence

changed their pleas, and each pleaded guilty to one

that the activities referred to in the indictment had

count and was sentenced. The Court of Appeal upheld

allegedly been incited by the police through an

the judge's ruling. On appeal by one defendant: - Held,

informer, the defendants sought to change their pleas,

dismissing the appeal, (1) that a judge in a criminal trial

and pleas of guilty to different counts in the indictment,

always had a discretion to refuse to admit evidence if,

one relating to conspiracy to utter and the other to the

in his opinion, its prejudicial effect outweighed its

unlawful

probative value (2) That, save with regard to

accepted. The defendants were then sentenced. The trial

admissions and confessions and generally with regard

to

evidence

obtained

from

the

accused

possession of forged banknotes, were

judge certified the following point of law: "(1) Has a

after

trial judge a discretion to reject admissible evidence

commission of the offence, the judge had no discretion

unfairly obtained otherwise than in cases where its

to refuse to admit relevant admissible evidence on the

prejudicial effect outweighs its probative value? (2) If

ground that it was obtained by improper or unfair

he has a discretion, is he bound in his exercise of it to

means, the court not being concerned with how it was

reject evidence of the commission of crime where the

obtained, and it was no ground for the exercise of the

crime would not have been committed but for the

95

Law of Evidence notes compiled by Yvette Brown 2010-2011

activities of the agent provocateur?" The facts are stated

the Judges' Rules require that he should not be

in the judgment of the court.

questioned in the absence of exceptional

circumstances. The court may nevertheless

Date: 26 November 2010

admit a statement made in response to such

questioning, even if there are no exceptional

Recent JCPC cases which have dealt with the Judges Rules.

circumstances, if it regards it as right to do so,

Peart v R [2006] 68 WIR 372 (JCPC): In

but would need to be satisfied that it was fair to

advising that an appeal against conviction be

admit it. The increased vulnerability of the

allowed, the Privy Council made the following

prisoner's position after being charged and the

pronouncements on the application of the

pressure to speak, with the risk of self-

Judges' Rules (with r III(b) particularly in

incrimination or causing prejudice to his case,

mind): (i) The Judges' Rules are administrative

militate against admitting such a statement. (iv)

directions, not rules of law, but possess

The criterion for admission of a statement is

considerable importance as embodying the

fairness. The voluntary nature of the statement

standard of fairness which ought to be observed.

is the major factor in determining fairness. If it

(ii)

The judicial power is not limited or

is not voluntary, it will not be admitted. If it is

circumscribed by the Judges' Rules. A court may

voluntary, that constitutes a strong reason in

allow a prisoner's statement to be admitted,

favour of admitting it, notwithstanding a breach

notwithstanding a breach of the Judges' Rules;

of the Judges' Rules; but the court may rule that

conversely, the court may refuse to admit it even

it would be unfair to do so even if the statement

if the terms of the Judges' Rules have been

was voluntary.

followed. (iii) If a prisoner has been charged,

96

Law of Evidence notes compiled by Yvette Brown 2010-2011

Peart v R 2000 68 WIR 372 (JCPC) decision on appeal from

then it is not admissible. However even where it is

Jamaica, held that the overreaching criteria for consideration

voluntary and therefore prima facie admissible a court

by trial Judge, is fairness of trial. After considering, a number

may still exclude it if it considers it unfair to the

of authorities it laid down the following principles regarding

defendant. See the case of Ricardo Williams v R

the admissibility of statements taken in breach of the Judges

[2006] 69 WIR 348 which also covers some of this

Rules.

ground.
Procedure for determining confessions admissibility
If confession not disputed, it may be opened to by prosecution

1. Judges rules are administrative directions, not rules of

law but are of considerable importance as they embody

before a jury in the ordinary way. Where however a confession

the standard of fairness which ought to be adhered to.

2. Because they are not rules of law, judges are not

is challenged on the ground that it was not voluntary, counsel

for the defence should inform counsel for the prosecution at the

circumscribed/ bounded by them and may allow it to be

trials outset of an intention to challenge and therefore the

admitted even where there has been a breach of the

confession

judges rules, conversely he may disallow a statement

should not be opened to by prosecution or

otherwise mentioned to before admissibility is determined.

in a particular case even where the judges rules have

The object of that it is to insulate. You do not want to put it to

been complied with.

3. If a prisoner is charged with an offence, he should not

the jury , where there is a risk that the judge might rule it out.

be questioned by the police except in exceptional

You do not want a situation where the jury already heard it and

circumstances, though a statement admitted in breach of

then you are going to ask them to forget it. At the moment

this rule may nevertheless be admitted if the judge

when proposed by the prosecution to tender the confession in

considers it fair to do so.

4. The criteria for admission is fairness and in this regard

evidence the defence should ask for the jury to withdraw. The
question of voluntariness of the statement will be determined

voluntariness of the statement is the major factor in

by judge in the jurys absence in a voir dire . The burden of

determining this. If a statement is not voluntary made,

97

Law of Evidence notes compiled by Yvette Brown 2010-2011

proving voluntariness in voir dire is on the prosecution, it must

See the cases of Mitchell v R [1998] AC 695 at p 703-704 :

be proved beyond a reasonable doubt. Evidence taken from the

and Thongjaire v R [1998] AC 54 at p 59.

prosecution in the first place to describe circumstances under

Mitchell v R [1998] AC 695: The defendant

which statement taken. Evidence may also be tendered on

was charged with the murder of a married

behalf of the defence . The defendant might give evidence. The

couple who were stabbed to death. At his trial

defendant may say he was beaten, and calls a doctor to give

his counsel challenged the admissibility of

evidence to that. The Judge then is required to make a ruling on

confessions made by the defendant to police

the admissibility of the confession.

officers, revealing in the presence of the jury

If the confession is excluded by the judge at end of the voir

that the voluntariness of the confessions was

dire , the rule is that it must not be mentioned in the jurys

disputed. The jury retired and a voire dire was

presence for the rest of the trial. If held admissible it will be

held in which evidence was given by

placed before the jury. One of the features of the system which

prosecution witnesses and the defendant. The

is hard to understand is that even where admitted the defence in

judge

jurys presence may go over what they did in in the voir dire in

voluntary and admissible. After the jury had

an effort to prove it was involuntary. They will cross examine

been recalled he told them that the prosecution

the police witness again . The jury should not be told by the

was being permitted to lead the confession

judge what his reasons were for for admitting the confession

evidence, which was then given. In his

although at end of the voir dire a judge is required to indicate

evidence the defendant denied committing the

before the jury returns what his reasons are (this is just for the

murders and alleged that the confessions had

record, in case the case goes on appeal).

been induced by beatings and ill-treatment.

ruled

that

the

confessions

were

The judge in his summing up reminded the

jury
98

of

the

defence

objection

to

the

Law of Evidence notes compiled by Yvette Brown 2010-2011

voluntariness of the confessions and said that

not been cured by the summing up, the

he had ruled that the statements were

evidence

voluntary. He then directed the jury that in

compelling, and the jury would inevitably

respect of each alleged confession they had to

have convicted him if that irregularity had not

decide, taking into consideration all the

taken

circumstances, whether the defendant had

miscarriage of justice had occurred and the

actually made it and, if so, whether what he

defendant's convictions would be upheld .

said was true. The defendant was convicted of

against

place;

and

the

that,

defendant

was

accordingly, no

Thongjair v R [1998] AC 54 : In the first

both murders and his appeal against his

case police officers were called to a flat where

convictions was dismissed by the Court of

they found a body. The defendant, a Thai who

Appeal of The Bahamas. On the defendant's

spoke no Chinese, was hiding in a wardrobe.

appeal to the Judicial Committee: - Held,

He was made to sit handcuffed on the floor in

dismissing the appeal, that the judge's decision

the dark for several hours until an interpreter

on a voire dire to determine the admissibility

arrived, and the prosecution alleged that he

of a confession should not be revealed to the

then made an oral admission that he had killed

jury, since to do so might cause unfair

the deceased. He was charged with murder.

prejudice to the defendant by conveying the

The defendant in the second case was arrested

impression that the judge had reached a

carrying a brief-case found to contain packets

concluded view on the credibility of witnesses

of heroin. It was alleged that he made an oral

and of the defendant; but that, although the

admission to a police officer. The defendant

judge's disclosure to the jury of his ruling

was charged with trafficking in a dangerous

constituted a material irregularity which had

drug. Each defendant denied making the

99

Law of Evidence notes compiled by Yvette Brown 2010-2011

alleged oral admission. The trial judge in each

Appeal of Hong Kong.

case conducted a voire dire in which the

On the defendants' appeals to the Judicial

defence challenged the admissibility of the

Committee:- Held, allowing the appeals, that

oral admissions on the ground that the

where the prosecution alleged that the

prosecution had not proved that they were

defendant had made an oral admission, and

voluntary. In the first case the defence relied

the defence case was that he had not made that

on the prosecution evidence as showing

admission and also that he had been ill-treated

conduct by the police which rendered the

by the police before or at the time of the

alleged oral admission inadmissible. In the

alleged

second case an allegation of ill-treatment of

in

cross-examination

first

issue,

for

the alleged admission was inadmissible

the alleged oral admission was put to the

officer

the

determination by the trial judge, was whether

the defendant before and after the making of

police

admission,

because it was involuntary, and if the judge

and

ruled that it was admissible the second issue,

denied, but the defendant did not give

which the jury had to decide, was whether the

evidence in support of the allegation. Each

admission had been made; that in the first case

judge held that he had no jurisdiction to rule

the issue of the voluntariness of the alleged

that the alleged oral admission, if it had been

oral admission had been raised by evidence

made, was involuntary and inadmissible since

adduced by the prosecution on the voire dire,

the defendant had denied making it. The

and in the second case that issue had been

defendants were both convicted, and their

raised on the voire dire when the allegation of

applications for leave to appeal against

ill-treatment of the defendant had been put to

conviction were dismissed by the Court of

the police officer in cross-examination, and

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Law of Evidence notes compiled by Yvette Brown 2010-2011

that in each case the judge should have ruled

judicial opinion as to the proper procedure when a

whether the prosecution had proved that the

confession was challenged not on ground of voluntariness

alleged oral admission was voluntary; and

but on the ground that it was not made. One school of

that, therefore, in each case since the

thought is that in any case voir dire should be held, while

defendant had been deprived of the safeguard

others say where the challenge is on the ground of

of a ruling as to the admissibility of the

authorship then no voir dire is necessary .

alleged

oral

admission

which

was

an

Adjodhaa v State [1982] AC 204 : The defendant A

important part of the case against him, the

was tried in 1975 on charges of murder, robbery and

conviction was unsafe and would be quashed,

rape. The only prosecution evidence against him was

and the matter would be remitted to the Court

a confession statement which he had signed. His

of Appeal of Hong Kong to consider whether

defence was that he was not the author of the

to order a new .

statement and that he had been forced to sign it. He

Ajodha v. The State [1982] A.C. 204, P.C.

was convicted of murder. Similarly, at the trial of the

applied.

defendants C, F and N in 1976 for murder, the main

evidence against each of them was a signed

Per curiam. It is desirable that a trial judge

confession statement and the defence was that the

should give brief reasons for ruling that a

defendants were not the authors of the confessions,

confession is inadmissible

that and N had been forced to sign and that F had

been tricked into signing. The defendants were

What happens where the confession is denied (not

convicted. At neither trial was any objection taken to

challenged for voluntariness): Before Adjodhaa v State

the admissibility of the statements. The Court of

[1982] AC 204 PC there was a sharp division in Caribbean

Appeal dismissed the defendants' appeals against

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Law of Evidence notes compiled by Yvette Brown 2010-2011

conviction. On the defendants' appeals to the Judicial

him and gave him a blank paper to sign. JCPC in Adjodhoa

Committee:- Held, allowing the appeals, that where in

held in those circumstances the defendant in essence

a criminal trial the prosecution tendered in evidence a

challenged the statements voluntariness by asserting that his

confession statement signed by the defendant the

signature had been obtained by force. However it appears that

prosecution was relying on the signature as the

in a case where the defence is complete repudiation of the

defendant's acknowledgment of the statement as his

statement then it is a matter for the jury to determine whether

own and that since it was well established that for

statement made or not, the case of Thongjar was applied in

such a confession to be admissible the prosecution

Adjodhoa.

had to show that it had been made voluntarily, a

See article by Morrison J, Repudiated Confessions and the

defendant's allegation that his signature had been

Voire Dire a Postscript.

obtained by force or by a trick necessarily raised the

How do you treat defendants evidence and the voir dire e.g. D

issue of the voluntariness of the statement itself and

gives a statement its accepted , then when the jury comes he

that that was an issue which had to be determined by

gives a different version.

firstly Defendant may not be cross examined on voir

the trial judge; and that, accordingly, the judge ought

to have ruled on admissibility and, since each

dire as to truth of confessions because the only issue on

defendant had been wrongly deprived of the

safeguard of such a ruling the trial had been

voir dire is issue of voluntariness.

Secondly the prosecution may not be permitted once

materially defective and the convictions should be

trial resumes before jury to adduce evidence of what the

quashed .

defendant said on the voir dire regardless of whether

confession admitted or excluded. Reason? Issue on voir

In Adjohda the police presented a statement apparently signed

by the accused. The accused denies making the statement but

dire is purely voluntariness.

Thirdly prosecution will not be allowed to examine the

acknowledges his signature. The accused says the police beat

defendant as to differences / inconsistencies between

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Law of Evidence notes compiled by Yvette Brown 2010-2011

his evidence and his voir dire when he gives evidence at

to torture or inhuman or degrading treatment

the resumed trial, save where confession admitted and

while in custody. In his evidence in chief in the

the defendant gives evidence before a jury that is

voir dire he admitted in terms that he had been a

inconsistent with what he said on the voir dire. See the

member of the I.R.A. during the greater part of

case of R v Brophy [1982] AC 476 from Ireland. This

the period charged in count 49. Kelly J. held

case shows the difference between voir dire and trial .

R v Brophy [1982] AC 476 The defendant was

that he was not satisfied that the statements had

not been obtained as the defendant alleged and

charged on indictment with 49 counts, including

excluded the evidence of them from the

12 of murder, 36 of causing explosions or

substantive trial. The defendant was accordingly

possessing explosives or firearms and one,

acquitted on counts 1 to 48 of the indictment.

count 49, of belonging to a proscribed

On count 49, Kelly J. admitted as evidence the

organisation, namely the I.R.A., contrary to

defendant's admission during the voir dire and

section 19 (1) (a) of the Northern Ireland

convicted him. The Court of Appeal in Northern

(Emergency Provisions) Act 1973, as amended.

Ireland allowed an appeal by the defendant on

He was tried by Kelly J. sitting without a jury

under

the

Northern

Ireland

the ground that that evidence had been

(Emergency

inadmissible.

Provisions) Act 1978. The only evidence against

him was a number of statements, written and

On appeal by the Crown by leave of the Court

oral, that he was alleged to have made to the

of Appeal

police after his arrest. He challenged the

dismissing the appeal, that the defendant's

admissibility of those statements under section 8

evidence at the voir dire that he had been a

(2) of the Act of 1978 on the ground that he had

member of the I.R.A. had been relevant to the

been induced to make them by being subjected

issue on the voir dire and, since evidence that

103

in

Northern

Ireland:-

Held,

Law of Evidence notes compiled by Yvette Brown 2010-2011

was relevant was protected against admission

Note : Being a member of the IRA was itself a criminal

at the substantive trial, his evidence that he

offence . the defendant was charged with counts of

had been a member of the I.R.A. had been

terrorism, murder and arson, the last count he was

inadmissible. Wong Kam-ming v. The Queen

charged with was being an IRA member. In his

[1980] A.C. 247, P.C. applied.

confession he stated this. The crowns case was solely

based on it, the defendant says he was beaten . On voir

Per curiam. Where evidence is given at the

dire he answers to his own counsel to the question are

voir dire by an accused person in answer to

questions

you a member of the IRA? He said yes . The judge

by his counsel, and without

ruled the statement not admissible . This was not

objection by counsel for the Crown, his

voluntarily given. The prosecution would not get him

evidence ought to be treated as relevant to the

on others but would get him on last count. Prosecution

issue at the voir dire, unless it is clearly and

wanted to use what he said in voir dire - NOT PART OF

obviously irrelevant. The accused should be

TRIAL- HoL held where defendant gives evidence on

given the benefit of any reasonable doubt .The

voir dire relevant to voluntariness then that evidence

right of the accused to give evidence at the

not admissible at behest of prosecution when trial

voir dire without affecting his right to remain

resumes.

silent at the substantive trial is absolute and is

not to be made conditional on an exercise of

How is jury to approach statement admitted as voluntary?

judicial discretion . Reg. v. Wright [1969]

Once confession admitted weight to be attached to it is entirely

S.A.S.R. 256 disapproved. Decision of the

a matter for the jury. That is why on trials resumption defence

Court of Appeal in Northern Ireland affirmed.

entitled to examine prosecution witness and to call evidence

with view to impaling circumstances under which confession
was made . State v Gobin v Griffiths [1976] 23 WIR 256 at p
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Law of Evidence notes compiled by Yvette Brown 2010-2011

266. Read the judgment by Chancellor Haynes. It gives a good

violence, and by actual violence he was forced to sign

history of the confession rule. One goes before jury.

and write on the statement. The trial judge admitted

Involuntariness dissent disqualifies the evidence, but may

the statement without holding a voir dire telling the

qualify its weight. That is what was held for many years to

jury that as the accused was saying it was not his own

show the distinction between judge and jury. See also the case

statement, its admissibility was a matter of fact for

of R v Mushtaq [2005] 3 All ER 885 HoL.

them to decide.
In Boniface Griffith's appeal, the accused objected to

State v Gobin v Griffiths [1976] 23 WIR

the admissibility of a confession statement to the

256 :These two appeals containing as they do related

effect that he had stolen two typewriters on the

questions of law on the admissibility of confession

ground that force and violence were used in order to

statements were by consent consolidated and heard

obtain it from him. He alleged he had been pushed

together.In Oswald Gobin's appeal, the accused and

about, cuffed in the abdomen and as a result was

his uncle Harry Samsair, were drinking bush rum

induced to sign the confession. At the voire dire, it

together when there arose an altercation between

turned out that he was complaining that the statement

them over the lighting of a lamp; whereupon, the

had been prepared beforehand by the investigating

accused threw kerosene oil on Samsair and set him

officer and he was illtreated in the manner described

alight. Samsair died as a consequence and the accused

to sign it. Whereupon the trial judge halted the trial

was charged with his murder. He made a statement

within a trial and ruled that as the accused was not

confessing his misdeed and at his trial, objected to its

saying he was beaten to sign a statement of which he

admissibility on the ground that it was not made by

was the author but a statement concerning which

him nor on his instructions. He alleged that the

another person in fact was the author, it became a

signature was elicited from him by threats of

question of fact for the jury whether or not the

105

Law of Evidence notes compiled by Yvette Brown 2010-2011

statement was that of the accused. He thereupon

officer to induce him to sign it;(v) I n each case, the

refrained from ruling on voluntariness, although he

omission to rule was a fatal irregularity; (vi) in each

admitted the statement and caused it to be read to the

case, as a result, the confession was received in

jury.

evidence although not duly shown to be voluntary. In

Gobin's case it was legally impermissible to leave it

Held: (per HAYNES C, JHAPPAN JA concurring) (i) in

to the jury to determine whether or not it was

each case (abovementioned), the trial judge erred in

voluntary; (vii) the court deprived itself of the

ruling that the objection did not raise the issue of

opportunity to learn facts relevant to determining

voluntariness; and in not ruling on all the evidence

whether or not to exclude the evidence on discretion,

upon the voir dire, including the defence evidence of

even if voluntary; (viii) (per CRANE and LUCKHOO

inducement, whether the statement was voluntary or

JJA): in Gobin's case the trial judge was wrong in

not; (ii) in each case reliance was misguidedly placed

ruling that the admissibility of a confession statement

on Williams v Ramdeo and Ramdeo ((1966), 10 WIR

was a matter of fact for the jury to decide, because

397) and Herrera and Dookeran v R ((1967), 11 WIR

admissibility of evidence is always a question of law

1), which laid down law contrary to well-established

for the trial judge and not for the jury to decide on;

common law rules; (iii) in each case the majority

(ix) in most cases, if not in all cases, a trial within a

opinion in Harper v The State ((1970), 16 WIR 353)

trial should be held to decide and rule on the

was erroneously distinguished or disregarded; (iv) in

admissibility, ie, the voluntariness of confession

each case the objection raised challenged the

statements; (x) it is not the law that the accused must

voluntariness of the written statement and a ruling

raise by way of challenge objection to voluntariness

after a trial within a trial was essential upon all the

by alleging there was an inducement to him to

evidence including the evidence of the accused (if

confess, so as to entitle him to a voir dire and ruling

any) of any compulsion exercised by any police

106

Law of Evidence notes compiled by Yvette Brown 2010-2011

thereon, because no matter what the ground of

(xiii) (per BOLLERS CJ dissenting): the decisions of

challenge, the accused is entitled to a ruling on

the majority in Dhannie Ramsingh (The State v

voluntariness vel non. Voluntariness of a confession

Dhannie Ramsingh (1973), 20 WIR 138) and Fowler

statement automatically arises whenever admissibility

(The State v Terrence Fowler (1970), 16 WIR 452)

is in issue; (xi) the judgment of Harper v The State

were correctly made and ought not to be disturbed.

((1970), 16 WIR 353), on the one hand, conflicts with

The

those of The State v Fowler ((1970), 16 WIR 452)

Alternatively, even if those decisions are wrong, it is

and The State v Dhannie Ramsingh ((1973), 20 WIR

better that the law is certain rather than perfect;

138), on the other. The ratio on both the latter cases is

doctrine

of

stare

decisis

must

prevail.

(xiv) the trial judge's direction in Gobin's case was

harmful to the spirit of a fair trial and repugnant to the

clearly wrong as admissibility of evidence is never a

proper administration of justice, and must be

question for the jury, but always for the judge. The

overruled; (xii) (per HAYNES C, CRANE R H

trial judge erred when he took no preliminary

LUCKHOO and JHAPPAN JJA): the principle underlying

evidence on voluntariness in the presence of the jury

stare decisis in the Guyana Court of Appeal is not the

and gave no ruling on the matter; (xv) the trial judge's

same for criminal as for civil cases. In criminal cases

procedure was wrong in bringing the voir dire

it is less rigid. Jurisdiction of the court to overrule

prematurely to an end in Boniface Griffith's case for

previously decided cases is a continuing one. Our

the objection was based on the ground that force and

court will exercise judicial review whenever there is

violence were used to obtain the confession. All

to be determined some broad issue of justice, public

evidence should have been heard on the issue and

policy or question of legal principle; and in a

then a ruling made on the voluntariness of the

criminal cause or matter which is plainly wrong and

statement.

manifestly unjust will overrule it without hesitation.

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Practice direction in Seepersaud v Port Mourant

confession made by an accused person, it was

((1972), 19 WIR 393) applied.

represented to the court that the confession was or

might have been obtained by oppression of the person

The State v Fowler ((1970), 16 WIR 452) and The

who made it, or in consequence of anything said or

State v Dhannie Ramsingh ((1973), 20 WIR 138)

done which was likely, in the circumstances existing

overruled. Williams v Ramdeo and Ramdeo ((1966),

at the time, to render unreliable any confession which

10 WIR 397) and Herrera and Dookeran v R ((1967),

might be made by him in consequence, the court

11 WIR 1) not followed.

should not allow the confession to be given in

Appeals allowed. Decisions of the Guyana High

evidence against him except in so far as the

Court set aside.

prosecution proved to the court beyond reasonable

doubt that the confession (notwithstanding that it
might be true) had not been so obtained. The judge

R v Mushtaq [2005] 3 All ER 885: The defendant

held a voir dire and then refused the defence

was charged with conspiracy to defraud and with

application. Subsequently, in the trial itself, the police

possessing material designed or adapted for the

officers were examined and cross-examined in front

making of a false instrument. In the course of his trial,

of the jury and the same allegations were put to them

the prosecution sought to lead evidence of an

as in the voir dire. The defendant did not give

interview with the police, in which he had made

evidence. In his summing up the judge directed the

statements which amounted to a confession. The

jury, inter alia, that 'it is for you to assess what weight

defence applied to exclude the interview evidence

should be given to the confession. If you are not sure,

under s 76(2)a of the Police and Criminal Evidence

for whatever reason, that the confession is true, you

Act 1984 which provided that if, in any proceedings

must disregard it. If, on the other hand, you are sure

where the prosecution proposed to give in evidence a

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Law of Evidence notes compiled by Yvette Brown 2010-2011

that it is true, you may rely on it, even if it was, or

Held (1) (Per Lord Steyn, Lord Phillips of Worth

may have been, made as a result of oppression or

Matravers and Lord Rodger of Earlsferry) The logic

other improper circumstances'. The defendant was

of s 76(2) of the 1984 Act required that the jury

convicted. He appealed against conviction on the

should be directed that, if they considered that the

ground that the judge's summing up had contained a

confession was, or might have been, obtained by

misdirection in that he had directed the jury that they

oppression or in consequence of anything said or

could proceed in a manner that was incompatible with

done which was likely to render it unreliable, they

the

self-incrimination

should disregard it. The rule against admitting an

implied into the right to a fair trial guaranteed by art

improperly obtained confession was based upon the

6(1)b of the European Convention for the Protection

principle that a man could not be compelled to

of Human Rights and Fundamental Freedoms 1950

incriminate himself and upon the importance that

(as set out in Sch 1 to the Human Rights Act 1998).

attached in a civilised society to proper behaviour by

The Court of Appeal dismissed the appeal and the

the police towards those in their custody, as well as

defendant appealed to the House of Lords. The

upon the potential unreliability of such a confession.

question before the House was whether in view of art

Those three considerations lay behind s 76(2) and it

6 of the convention, a judge who had ruled pursuant

was inconsistent with the purpose of that provision to

to s 76(2) of the 1984 Act that evidence of the alleged

affirm that the jury were entitled to rely on a

confession had not been obtained in consequence of

confession where they considered that it was, or

anything said or done which was likely to render

might have been, obtained by oppression or other

unreliable any confession, was required to direct the

improper

jury that, if they concluded that the alleged confession

misdirected the jury.(2) (Per Lord Steyn, Lord

might have been so obtained, they had to disregard it.

Phillips of Worth Matravers, Lord Rodger of

defendant's

right

against

109

means.

Accordingly,

the

judge

had

Law of Evidence notes compiled by Yvette Brown 2010-2011

Earlsferry and Lord Carswell) The direction given in

Date: 3 December 2010

the instant case was a direction that, in reaching their

R v Mushtaq [2005] 3 All ER 885 held that even where a

verdict and so, for the purposes of art 6(1) of the

judge admitted confession as voluntary, the jury must still be

convention, determining the criminal charges against

told to disregard it, if there is evidence, which leads them to

the defendant, the jury were entitled to take into

conclude it was obtained by threat, inducement or oppression

account a confession which they considered had been,

or by any other improper means. Actually that is the opposite

or might have been, obtained by oppression or any

of what used to be the rule. R V Wizzard [2007] 70 WIR 222

other improper means in violation of his right against

JCPC from Jamaica, attempted to argue on crowns behalf that

self-incrimination. Such a direction was an invitation

Mushtaq did not apply in Jamaica because based on English

to the jury to act in a way that was incompatible with

statutory provisions. (PACE 1984) PC rejected this argument

the defendant's right against self incrimination . (3)

and stated that principle derived from common law rule against

There had been no evidence, in the instant case, of

self incrimination and that Mushtaq applied fully to Jamaica.

oppression, or of any other improper means, for the

Read Mushtaq carefully. Before it, there were no modern

prosecution to disprove or for the jury to consider.

statements of the rule. Reiterated that rationale behind

The direction to the jury as to what they might do if

confession rule has to do with states/ citizens need to make

they found that the confession had been obtained by

statement that society does not tolerate police abuse.

oppression or any other improper means had therefore

been unnecessary. Accordingly, the direction could

How to deal with a confession that implicates a co-accused.

not have affected the fairness of the defendant's trial

Eg A + B charged. A makes confession and names B as his

or the safety of his conviction. The appeal would

collaborator. B does not confess and pleads not guilty. A

therefore be dismissed .

confession admitted in evidence is only evidence against the

maker of the confession (juries are routinely told this). In so far
110

Law of Evidence notes compiled by Yvette Brown 2010-2011

as it implicates the co accused, the jury must be told that it

read out to the jury in its entirety. The unedited statement is to

cannot be used against the co-accused . Real practical

be placed before the jury see the case of R v Lobban [1995] 2

difficulty. A number of devices employed to try to get around

All ER 602 (Murder of Peter Tosh case). In this case the

this problem. Firstly one may edit the confession of a person

accused admitted being at the spot but claimed he was not

who made it, so as to remove all references to the co-accused.

involved. JCPC said he was entitled to have the confession

Secondly counsel for both the crown and the defence will

read out in its entirety before jury .

agree that those points of confession which implicate the co-

R V Lobban 1995 2 All ER 602: The appellant and a

accused will not be read out to the jury. See the case of R v

co-accused were indicted in Jamaica for three murders

Silcott [1987] Crim LR 765 regarding editing of a confession.

committed in the course of a robbery. At their trial the

Thirdly separate trials can be ordered but this would be an

appellant relied on an alibi defence while the co-

exceptional exercise by the trial judge of his discretion in this

accused, who had driven the get-away car, claimed that

regard, this situation on appeal is not lightly interfered. See the

he had been forced to take part in the robbery under

case of R v Lake [1976] 64 Cr App R 172.

duress. The prosecution in its case against the co-

Situation where confession contains exculpatory material:

accused wished to put in evidence a statement made by

e.g. I woke up and B told me to come with him to go rob a

him to the police under caution. The statement

bank. I did not want to go, but I went. This confession puts him

implicated the appellant and his counsel submitted, in

on the spot and gives him a role, but some exculpatory

the absence of the jury, that the statement should be

element, I ran away before the action started. The excuse

edited to exclude that part of the statement implicating

implicates B, the question is should that confession be edited to

the appellant; the trial judge however refused the

remove reference to the other person.

request and ruled that the statement should be admitted

in its entirety. In the event, the prosecution case

The rule is that where reference to the co-accused is

presented against the co-accused was not particularly

exculpatory, the maker of the statement is entitled to have it

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Law of Evidence notes compiled by Yvette Brown 2010-2011

strong but his counsel did not make a submission of no

Appeal of Jamaica which dismissed his appeal. He then

case when the prosecution completed the case against

appealed to the Privy Council on the grounds, inter alia,

him. Instead the prosecution then presented the case

that the trial judge should have ordered the editing of

against the appellant. Both counsel for the co-accused

the other accused's statement so as to exclude that part

and counsel for the prosecution cross-examined the

which implicated the appellant or at least that part of it

appellant to the effect that he was one of the robbers

which referred to him by name and that the resulting

and counsel for the prosecution also suggested that the

material irregularity was not cured by the directions in

part of the co-accused's statement implicating him was

the summing up, that the judge should not have

true. Immediately after the appellant's case was closed,

permitted counsel for the prosecution to cross-examine

counsel for the co-accused made a submission that there

the appellant on the content of the other accused's

was no case against his client. Having heard that

statement and that the submission on behalf of the other

submission in the presence of the jury the judge ruled,

accused that there was no case had been made at the

again in the presence of the jury, that there was no case

wrong time, namely after the appellant's case, and

to answer and directed that the jury find a verdict of not

should not have been made in the presence of the jury.

guilty against the co-accused. The judge then summed

up against the appellant and directed the jury that the
direction of not guilty against the co-accused did not

Held The appeal would be dismissed for the

affect the case against the appellant one way or the

following reasons (1) A judge in a criminal trial

other and that the jury was to disregard all the evidence

had no discretion to exclude the exculpatory part of a

against the co-accused, including his statement, when

mixed statement containing admissions as well as an

considering the case against the appellant. The jury

exculpatory explanation on which a defendant

convicted the appellant. He appealed to the Court of

wished to rely, notwithstanding that the exculpatory

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Law of Evidence notes compiled by Yvette Brown 2010-2011

material was prejudicial to a co-defendant. The

for the co-accused was entitled to insist that evidence

discretionary power to exclude relevant evidence

tending to support the co-accused's own case or that

because

its

material favourable to him in his statement should

probative value was confined only to evidence on

not be edited and since the prosecution was not

which the prosecution proposed to rely, since the

entitled to rely on any part of the statement against

purpose of the discretion was to ensure a fair trial of

the appellant the judge had no discretion to order that

the defendant or, in a joint trial, of each defendant

the statement be edited before being put in by the

without seeking to differentiate between the quality

prosecution. In any event the judge had given the

of justice afforded to each defendant. On the other

jury emphatic and repeated directions that the co-

hand, a defendant's right to deploy relevant evidence

accused's statement was irrelevant to the case against

as part of his case asserting his innocence was

the appellant .(2) Prosecuting counsel was not

absolute and not subject to any discretionary control

permitted to cross-examine a defendant on a

by the judge, notwithstanding a conflict of interest

statement which was inadmissible in the case against

with a co-defendant. Where the admission of

him. Accordingly, since the co-accused's statement

evidence

one

was inadmissible in the case against the appellant

defendant but not against his co-defendant resulted in

prosecuting counsel should not have been permitted

real risk of prejudice to the co-defendant, the judge

to cross-examine the appellant on the statement.

should ensure that the interests of the co-defendant

However, although that was a material irregularity, it

were protected by explicit directions to the jury to

had not resulted in a miscarriage of justice, having

the effect that the statement of one co-defendant was

regard to all the facts. (3) The submission by counsel

not evidence against the other or, in the last resort, by

for the co-accused of no case to answer had been

ordering separate trials. It followed that since counsel

made at the wrong time and had thereby incorrectly

its

prejudicial

which

was

effect

outweighed

admissible

against

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Law of Evidence notes compiled by Yvette Brown 2010-2011

allowed counsel to cross-examine the appellant, that

in, is one for the discretion of the trial judge on the

cross-examination had not resulted in prejudice to

particular facts and the Court of Appeal will not

the appellant. Furthermore, the jury should have been

lightly interfere with the exercise of that discretion;

asked to withdraw while the application of no case

thus, every case depends on its own facts, and it is

was made and determined but neither counsel nor the

very far from being the rule that in every case where

judge said anything to the detriment of the appellant's

there is inadvertent admission of evidence the jury

case and the irregularity caused no prejudice to the

must be discharged . R v Firth ([1938] 3 All ER 783)

appellant (see p 614 c to h and p 615 b, post).

distinguished on the facts. Per Curiam: the court

recognises that, according to current practice,
appropriate steps are taken in certain circumstances to
avoid some fact prejudicial to the accused being

A confession may also be edited to remove material

mentioned; thus a statement by the accused may be

prejudicial to the maker of the confession e.g. something

edited, viz, to avoid prejudicing him an effort is made

which reveals previous conditions or is otherwise of bad

to eliminate things which are part of the evidence but

character. The is a rule of practice not a rule of law, but

which it is thought to be better that the jury should

failure to follow practice could result in any subsequent

not know. The best way for this to be done is that the

conviction being quashed, e.g. where an accused is giving a

confession

and

says

something

about

evidence

discovering

should

appear

unvarnished

in

the

depositions taken before the magistrates; then at the

something when he was in prison R v Weaver [1968] 1 QB

trial counsel can confer and the judge can, if

353.

necessary, take his part in the matter to ensure that, if

R v Weaver [1968] 1 QB 353. The decision whether

any editing is done, it is done in the right way and to

or not to discharge the jury, where evidence

the right degree .

prejudicial to the accused has inadvertently been let

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Law of Evidence notes compiled by Yvette Brown 2010-2011

their trial the appellants objected to the admission of both

Facts discovered as a result of inadmissible confessions:

their statements and the video recordings on the grounds

Rule- evidence discovered as result of inadmissible confession

that they had been extracted by police brutality and were

may be admitted in evidence if that evidence can be proved

not voluntary and were therefore inadmissible. The judge

without any reference to the confession. Old case settled law

ruled that the appellants' statements were inadmissible but

on this Warwichshall 1783. See modern application in Lam

he admitted in evidence the second video recording without

Chi-ming v R [1991] 3 All ER 172 .

sound in which the appellants had indicated the location of

the murder weapon. Without that evidence there was

Lam Chi-ming v R [1991] 3 All ER 172 . The sister of

nothing to link the appellants to the murder weapon. The

the first and second appellants told them and the third

appellants were convicted of murder. They applied for

appellant, who was her boyfriend, that she had been raped

leave to appeal against their convictions on the ground that

by the deceased on a number of occasions. Shortly

the second video recording should not have been admitted.

afterwards, the deceased was found stabbed to death. The

The Court of Appeal of Hong Kong refused their

appellants were arrested for his murder. They all made

applications and they appealed to the Privy Council. Held

confession statements to the police and the next day re-

The rule of law applicable in Hong Kong as well as

enacted the actions described in their statements. The re-

England that a confession was not admissible in evidence

enactment was video-taped with a sound track. The

unless the prosecution established that it had been obtained

appellants then directed the police to the waterfront and

voluntarily was based not only on the possible unreliability

each in turn pointed to the place where the knife which

of the statement but also on the principle that a man could

they said they had used to kill the deceased had been

not be compelled to incriminate himself and on the

thrown into the sea. That episode was also video-taped with

importance attached to proper behaviour by the police

sound. A knife recovered at the place indicated by the

towards those in their custody. Accordingly, where a

appellants was later identified as the murder weapon. At

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Law of Evidence notes compiled by Yvette Brown 2010-2011

confession statement was not made voluntarily, the fact that

incriminating parts and the excuses or explanations must be

part of the confession was later shown to be reliable by the

considered in determining where the truth lies, although

discovery of the evidence to which it related was not

where appropriate, as it usually will be, the judge may, and

sufficient to render the statement admissible. Accordingly,

should, point out that the incriminating parts are likely to

the evidence of the police and the silent video recording

be true whereas the excuses do not carry the same . Dictum

relating to the conduct of the appellants leading to the

of Lord Lane CJ in R v Duncan (1981) 73 Cr App R at 365

discovery of the murder weapon should not have been

approved.

admitted since it was evidence of an inadmissible

confession. The appeal would therefore be allowed. Ng

TOPIC: COMPETENCE AND COMPELLABILITY

Wai-ming v R [1980] HKLR 228 overruled

Competence-

Mixed statements: these are statements which are partly

witnesss ability to give evidence (Wife

deceased).
Compellability- person compellable by subpoena or warrant

exculpatory and partly inculpatory. For example where an

accused admits being on the scene of the crime there but limits
his role. I was there but I did not have a gun. Jury told to

for contempt of court.

Look at section 2-14 Evidence Act - witness competent if he

consider statements as whole to determine truth R v Sharpe

may lawfully be called to give evidence and nowadays most

[1988] 1 All ER 65.

are competent.
Historically there was a time when a person was not considered

R v Sharpe [1988] 1 All ER 65. Where a statement made

competent (up to 1898): defendant himself, convicts, non-

out of court by a defendant in criminal proceedings is in

Christians, party to the case. All these were at one time not

part an admission and in part self-exculpatory, the whole of

competent. Nowadays those old rules have been stripped.

the statement constitutes evidence of the truth of the facts it

asserts and the judge should direct the jury that both the
116

Law of Evidence notes compiled by Yvette Brown 2010-2011

A witness is deemed compellable if he can be lawfully

Date: 7 DECEMBER 2010

obliged to give evidence. The general rule is that all

competent witnesses are also compellable. A compellable

TOPIC: COMPETENCE

witness can be enforced by subpoena or by the prosecution

AND COMPELLABILITY

CONTINUED

for contempt of court . Some exceptions are children,

If a child gives unsworn evidence and there is no corroboration

patients, accused and the accuseds spouse.

then no conviction can flow from that.

Children: the common law rule is that children are only
Child Care Protection Act section 20 the responsibility of

competent to give evidence if a judge is satisfied after

the child to give evidence on oath is that of the judge and the

questioning him that he understands the nature and duty of an

judge is to determine this by examination of the child on voir

oath, see the case of R v Brasier [1779]. This common law

dire so as to test childs understanding as to the nature of the

rule has been modified in criminal cases by statute. See section

oath and the duty to speak the truth.

5 Evidence Act where any child of tender years who is

called a s a witness does not in the courts opinion appreciate

It has been held (when a child was to give evidence) that he/

the nature of an oath his evidence may nevertheless be received

she is competent without some enquiry being directed to the

if in the opinion of the court he possesses sufficient intelligence

child by the judge see the cases of R v Whitely (1978) 27

and understands the duty of speaking the truth. See also section

WIR 247 (Jamaica), R V Cyrus (1968) 12 WIR 97 (Guyana),

20 Child Care and Protection Act Jamaica.

Nelson (1962) 5 WIR 48.

R v Whitely (Jamaica): (1978) 27 WIR 247: The

applicant was convicted for illegal possession of a firearm
and shooting with intent on the uncorroborated evidence of
a boy of twelve. No examination on the voir dire preceded
117

Law of Evidence notes compiled by Yvette Brown 2010-2011

to swearing of the boy and the taking of his evidence. The

a sin to tell a lie, that it was a bad thing to do so, and that

boy subsequently swore to an affidavit in which he stated

God would punish her were she to commit a sin. Held that

that his evidence identifying the applicant was untrue.

the witness was properly sworn. [Per Curiam: it

Held (i) Although there is no precise age above or below

should be borne in mind that the responsibility of

which a child may or may not be permitted to give

assessing the competency of a child to give evidence upon

evidence on oath, since s 3 of the Juveniles Act

oath is the judge's exclusively, and to invite the jury to

conclusively presumes a child under twelve to be

make a finding of fact on such an issue may have the

incapable of crime it ought not to be presumed that such a

effect of confusing them, and should be avoided.] Appeal

child is possessed of sufficient understanding of the nature

dismissed.

of an oath. (ii) The practice of examining on the voir dire

R v Nelson (1962) 5 WIR 48: The appellant was

all children under the age of fourteen presented as

convicted by a Resident Magistrate on a charge of

witnesses ought to continue. (iii) A new trial would not be

unlawful wounding. Apart from a medical certificate

ordered because the contents of the boy's affidavit

describing the injury sustained by the complainant, the

indicated the futility of so ordering.

only evidence against the appellant was that of the

R v Cyrus (1968) 12 WIR 97 (Guyana): Upon being

complainant, a school girl, whose age was not stated in

called to give evidence at the trial of the appellant for rape

evidence. The complainant gave sworn evidence but it did

and robbery with violence, a witness gave her age as

not appear that there was any examination by the resident

fourteen years, but she was treated as a child by the trial

magistrate before she was sworn in order to ascertain

judge for the purpose of conducting a voir dire to ascertain

whether or not she understood the nature of an oath. In

whether she appreciated the nature and obligation of an

answer to a question in cross-examination the complainant

oath. At the voir dire, the witness said that she was

stated I do not know what it means when I took the Bible

attending both school and church, that she knew that it was

and swear. Held: (i) there was a real doubt as to whether

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Law of Evidence notes compiled by Yvette Brown 2010-2011

the complainant was in fact competent to give sworn

R v Haynes [1977] 2 All ER 288: The important

evidence; (ii) the evidence could not be received as

consideration for a judge in the exercise of his

unsworn evidence under s 53 of the Juveniles Law, Cap

discretion to permit a child to give evidence on oath,

189 [J], as it did not appear that any examination was

is whether the child sufficiently appreciates the

conducted by the resident magistrate on which he could

solemnity of the occasion and is sufficiently

have been satisfied that although the complainant did not

responsible to understand that taking an oath involves

understand the nature of an oath she was possessed of

telling the truth, and the judge need not be satisfied

sufficient intelligence to justify the reception of the

that the child is aware of the divine sanction of an

evidence and understood the duty of speaking the truth. In

oath. Accordingly, where questions put by the judge

any event, the proviso to s 53 required corroboration of

to the child reveal that the child is ignorant of the

any unsworn evidence given in accordance with the

existence of God, the judge may properly permit the

section and although the resident magistrate appeared to

child to give evidence on oath if, on questioning the

have treated the medical certificate as corroboration that

child, he is satisfied that the child appreciates the

evidence could not be treated as such. Appeal allowed.

solemnity of the occasion and the duty when on oath

to tell the truth. An appellate court should hesitate
long before interfering with the exercise by a judge of

All these cases illustrate how a judge goes about testing a

his discretion.

childs competence to give evidence. Within context of the case

of R v Haynes (1977) 2 All ER 288 court emphasised that the
important consideration for the judge is whether the child

In response to a question, a little boy said to a judge no he

sufficiently appreciates the solemnity of the occasion and is

does not know about heaven and hell. The Court of Appeal said

sufficiently responsible to understand that taking an oath

it was ok although he did not exercise any divine sanction.

involves speaking the truth.

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Competence of mental objectives: is to be determined same

cross-examined the jury returned to court, and the child

way as done with a child, see the case of R v Dunning (1965)

was sworn as a witness and gave evidence on oath. The

Crim L R 372. For many years it was thought that voir dire to

appellant was found guilty. Held, that, inasmuch as in a

test competency of children should be held in jurys presence,

criminal trial it should be regarded as most exceptional that

it was thought that this would help the jury to come to the

any evidence should be given otherwise than in the

realisation of the competency of the witness. Competence of

presence of the jury, the hearing of the evidence of the

Children: More modern approach suggests that such questions

school-attendance officer when the jury were absent

should always be pursued in absence of the jury though it will

constituted such an irregularity that the conviction could

be a matter for the judges discretion to decide how to handle it

not stand.

in a prior case. See the cases of R v Reynolds [1950] 1 KB

606 and R v Deakin [1994] 4 All ER 769.
Deakin [1994] 4 All ER 769: The appellant was charged
with indecent assault upon the complainant, a 34-year-old

R v Reynolds [1950] 1 KB 606:At the trial of the appellant

woman with Downs Syndrome, who was living in a home

on a charge of indecently assaulting a girl eleven years of

for the mentally handicapped where the appellant was

age a discussion took place between the Chairman of

employed as a care assistant. Before the jury was

Sessions and counsel as to the child's capacity to give

empanelled the judge was invited to rule as to whether the

evidence on oath. During the discussion, by direction of the

complainant was competent to give evidence and adjourned

chairman, the jury left the court. In their absence, a school-

the case in order to obtain psychologists' reports. Two

attendance officer was called as a witness and gave

psychologists found that the complainant was capable of

evidence as to the class of school attended by the child, the

telling the truth and the judge decided that the jury should

quality of the home from which she came and her standard

hear their evidence. The judge directed the jury that in his

of education. After the witness had been examined and

opinion the complainant was a competent witness but that

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Law of Evidence notes compiled by Yvette Brown 2010-2011

it was for them to decide whether or not her account was

of justice had occurred. The appeal would therefore be

truthful. The appellant was convicted. He appealed,

dismissed. R v Reynolds [1950] 1 All ER 335 distinguished.

contending that the decision on the competence of the

complainant to give evidence was a question of

Competence of the defendant: Historically defendant would not

admissibility and so fell to be resolved by the judge in the

give evidence on his own behalf. However, change in 1898

absence of the jury and that the psychologists' testimony as

abolished by provisions of the Criminal Evidence Act 1898,

to the complainant's competence should not have been

see also provisions at section 9 Evidence Act (Jamaica). In so

given in the presence of the jury, since their acceptance of

far as the prosecution is concerned the accused is not

the complainant's account of events would have influenced

competent to give evidence for the prosecution in any criminal

the jury to accept it.

case . The effect of this is that one accused cannot give

evidence against another one.

Held The rule that the jury should hear all the evidence
given in a case and that questions relating to the
competence of a witness ought to be answered by the

What is the difference between nolle prosequi and offering

witness himself in the presence of the jury did not apply to

no evidence ? Nolle preosequi DPP only saying that not

expert evidence as to a witness's capacity to tell the truth,

proceeding with this prosecution at this time. The DPP may

since such evidence turned on the question of admissibility

start the matter again as against the person in another court or

and was a matter for the judge alone and would not assist

before another magistrate. Current events Kern Spencer trial.

the jury in deciding whether to accept his evidence by

There is a feeling that the DPP should enter a nolle prosequi

observing the manner of his answers to questions. In the

and start it again before another judge . Lecturer says he is not

circumstances, the calling of the psychologists in the

condoning that. Offering no evidence question: Accused man

presence of the jury was an irregularity but since the

pleaded. He pleads not guilty and is in jeopardy from that

appellant had suffered no prejudice thereby no miscarriage

moment (to be put before jury) jury must then return a formal
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Law of Evidence notes compiled by Yvette Brown 2010-2011

verdict. Where not guilty he must then be acquitted. Aurteforis

Note - the prosecution can resort to 1 of 4 devices to render

acquit threat.

a co-accused competent to give evidence:

1.
The Crown can enter a nolle prosequi against the

Note: In the common law, the peremptory pleas (pleas

2.

in bar), are pleas that set out special reasons for which

co-accused.
The Crown offers no evidence against a particular
accused person so he ceases to be a defendant and

a trial cannot go ahead. They are the plea of autrefois

convict, the plea of autrefois acquit, and the plea of

3.

pardon. A plea of autrefois convict (Law French for

becomes a witness.
The court makes an order for separate trials. The
effect of that is that they are no longer co accused

"previously convicted") is one in which the defendant

(this is cumbersome, expensive, and not usually

claims to have been previously convicted for the same

4.

offence and that hence they cannot be tried again. A

done).
One co-accused can plead guilty, eg. in a bank

plea of autrefois convict can be combined with a plea of

robbery C drove the getaway car , C pleaded guilty

not guilty. A plea of autrefois acquit (Law French for

as accessory before the fact of robbery then he turns

"previously acquitted") means the defendant claims to

evidence against the other two.

have been previously acquitted of the same offence, on

Note - the Barbados Evidence Act makes reference

substantially the same evidence, and that hence he or

to a defacto spouse but does not put any time limit

she cannot be tried again. A plea of autrefois acquit can

on it.

be combined with a plea of not guilty. The plea of

pardon is where a defendant claims they have been

Maybe better result for client that prosecutor offers

pardoned for an offence, and hence cannot be tried for

no evidence and he walks.

it.
Number 4 has an old rule and a more modern rule
old rule once pleaded guilty sentence him
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Law of Evidence notes compiled by Yvette Brown 2010-2011

immediately notion that he is giving evidence to get

but should be postponed until after the others have

lesser sentence. Modern view judge to postpone

been tried, so that the court, being by that time in

sentencing of that one until after end of trial.

possession of the facts relating to all the prisoners,

Reason? Proportionate sentences judge will have

can properly assess the respective degrees of guilt

good view of respective roles in the offence. It is to

among them. Per curiam: this direction will not

ensure some consistency in how accused are treated.

apply in the exceptional case where a man who

See the cases of R v Payne [1950] 1 All ER 102

pleads Guilty is to be called as a witness. Such a

also R v Palmer [1993] 99 Cr App R 83.

prisoner should be sentenced at once so that there

can be no suspicion that his evidence is coloured

R v Payne [1950] 1 All ER 102: The appellant

by the fact that he hopes to get a lighter sentence

and two other men were indicted at quarter

by reason of the evidence he gives.

sessions on a charge of housebreaking. On the

arraignment on the first day of the sessions the

R v Palmer [1993] 99 Cr App R 83

appellant pleaded Guilty and the other men Not

The Spouse of the Defendant : General rule at common law is

Guilty. Sentence of two years' imprisonment was

that the spouse of an accused is not a competent witness for the

passed on the appellant at once, the other men

prosecution in any proceedings against him/ her. This applies

being put back for trial, and on the following day,

not only to things happening during the marriage but to things

having been found Guilty, they were sentenced to

which happened before the marriage. Must read the case of

twelve months' and fifteen months' imprisonment

R v Powell [1963] 6 WIR 176 where a man was charged with

respectively. Held Where several persons are

an offence and his wife came to court to give evidence against

charged jointly in an indictment and one pleads

him in court of appeal. It was held that such a convictions was

Guilty and the others Not Guilty sentence should

to be quashed.

not at once be passed on him who pleads Guilty,

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Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Powell [1963] 6 WIR 176: At the trial of the

circumstances, that the most desirable course would

appellant on a charge of wounding, the wife of the

be an order for a new trial. The court therefore orders

appellant was called as a witness for the prosecution.

a new trial in this matter.

Held: the wife of the appellant was neither a

A clear exception to this general rule at common law is

competent nor a compellable witness. Appeal

where the offence for which one spouse is charged involves

allowed; new trial ordered.

a case of personal violence against the other . In such a case,

In this matter the appellant was charged with

the victim/ injured party is in essence the evidence of the of the

wounding one Daniel McLeod and was eventually

element of personal violence. As such that spouse is deemed a

convicted and sentenced to four months' hard labour.

competent witness for the prosecution . R v Mount [1934] 24

It appears that at the trial one Mavis Powell, the wife

Cr

of the appellant, was called by the prosecution as a

charged with a criminal offence . She was married to one of the

witness to support the case of the complainant; she

three . It was held all three convictions to be quashed. In the

gave evidence and she was cross-examined. It has

UK by virtue of statute - Police and Criminal Evidence Act

been submitted to us that, according to the provisions

1984 a spouse is competent and compellable in any

of s 9 of Cap 118 of the Evidence Law, such a course

proceedings after divorce. Whether a wife is made competent

was not permissible. That submission seems to us

because of a personal violence exception is also compellable .

well founded. The wife of the appellant was neither a

The rule at common law used to be that she was compellable .

App R 135, W gave evidence against three persons

competent nor a compellable witness under our Law.

Although the Resident Magistrate has stated that he

All that changed 30 years ago in Hoskyn v Com of Police

has expunged that particular evidence from the record

[1979] A.C. 474 .

and that it played no part in his final decision of the

case, nevertheless we feel, in view of the whole
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Law of Evidence notes compiled by Yvette Brown 2010-2011

Hoskyn v Com of Police [1979] A.C. 474: Where a

right not to give evidence, she becomes an ordinary witness

husband is indicted for inflicting personal injury on

and must then proceed to give her evidence in the ordinary

his wife the wife although a competent witness is not

way . Statute has intervened in UK and the rule has changed .

a compellable witness for the Crown. Where,

Hoskin reversed it now back to her being both competent and

therefore, a woman who was unwilling to give

compellable. In Barbados spouse / de facto spouse is

evidence was called as a prosecution witness, having

competent but not compellable.

married the man who was charged with wounding her

R v Pitt [1982] 3 All ER 63, [1983] Q.B. 25. The

with intent to do grievous bodily harm two days

before

his

trial:-

Held

(Lord

appellant was charged with two offences of assault

Edmund-Davies

occasioning actual bodily harm to his eight-month-old

dissenting), that the woman was not a compellable

baby. His wife made a witness statement which was

witness and his conviction could not stand.

prejudicial to him. She was called as a prosecution

witness at his trial, but during her evidence in chief

The appellant was charged with wounding his girlfriend with

she gave answers inconsistent with her statement. The

intent to do her grievous bodily harm. She gave evidence at

judge granted a prosecution application to treat her as

committal proceedings. He was committed to stand trial . By

hostile, and she was cross-examined on her witness

the time of trial she had become his wife (they got married

statement. The appellant was convicted. On appeal

two days before trial) and was reluctant to give evidence. She

against conviction:- Held, allowing the appeal, that a

spoke the truth, he was not convicted. On appeal HoL held it

wife retained her right not to give evidence against

was wrong to compel her, that she was a competent witness

her husband until, with full knowledge of that right,

but not compellable. This case was complimented and

she took the oath at the trial of her husband; that once

explained in R v Pitt [1982] 3 All ER 63, [1983] Q.B. 25. In

she had started to give evidence, she was to be treated

this case it ws held that once a Wife chooses to waive her

as an ordinary witness and, if the nature of her

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Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence warranted it, she could be treated as a

See the case of Yeow [1951] 1 All ER 864- Held charged with

hostile witness that the wife had not sufficiently

writing letters threatening to murder his wife with intent to

appreciated her right to refuse to give evidence

murder her. Held that triggered personal violence exception .

against her husband; and that, although the judge had

She was therefore a competent witness.

advised the jury to disregard her evidence and

Yeow [1951] 1 All ER 864: On 1 March 1951, at

directed them that her statement did not constitute

Manchester Assizes the prisoner, Thomas Yeo, was

evidence, it was possible that the jury were affected

indicted on a charge of maliciously sending to his

by the contents of the wife's statement and,

accordingly,

the

conviction

was

unsafe

wife, Mary Ann Yeo, knowing the contents thereof,

and

a letter or writing, threatening to murder her,

unsatisfactory . Leach v. The King [1912] A.C. 305,

H.L.(E.);

Hoskyn

v.

Metropolitan

contrary to s 16 of the Offences against the Person

Police

Act, 1861. On a question as to the competence of the

Commissioner [1979] A.C. 474, H.L.(E.) and dictum

wife as a witness for the prosecution, it was ruled

of Darling J. in Rex v. Acaster (1912) 7 Cr.App.R.

that the evidence of the wife was not admissible. The

187, 189, C.C.A. applied. Per curiam. It is desirable

wife could not be called as a witness under s 4 of the

that where a wife is called as a witness for the

Criminal Evidence Act, 1898, because s 16 of the Act

prosecution of her husband, the judge should explain

of 1861 was not an enactment mentioned in the

to her in the absence of the jury, that before she takes

schedule to the Act of 1898. Nor was the wife a

the oath she has the right to refuse to give evidence,

competent witness at common law as in a case where

but that if she chooses to give evidence she may be

the husband was indicted for personal injury to her:

treated like any other witness.

see Archbold's Criminal Pleading, Evidence, And

What kind of violence required to make spouse competent

Practice, 32nd ed, p 478; for there was no authority

at common law.

for saying that a threat to murder was a personal

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Law of Evidence notes compiled by Yvette Brown 2010-2011

injury to the wife. No other evidence having been

evidence that he had bought the gun to shoot himself,

offered by the prosecution, on the direction of the

and that it had gone off accidentally killing H. The jury

judge the jury returned a verdict of Not Guilty and

returned a verdict of murder on count 1, but were

the prisoner was discharged.

discharged from returning a verdict on count 2. On

appeal it was common ground that the wife was a
competent witness on count 2 but was not a competent

R V Deacon [1973] 2 All ER 1145 defendant killed brother

witness for the Crown on count 1 except on the

in law in presence of his wife . Answer - she was not a

application of the appellant.

competent witness . Lecturer note startling result.

R V Deacon [1973] 2 All ER 1145 : An argument took

Held Although there was a good deal of evidence

place between the appellant, his wife and the wife's

on which the jury could have convicted of murder if

brother, H. The appellant took a shot gun and levelled it

the wife had not given evidence, her evidence was of

at H's head. It went off and killed H. A further struggle

such weight and importance that it was impossible to

developed between the appellant and his wife, during

say that the verdict of the jury would have been the

which the gun went off twice, the first time missing the

same if either the wife had not been called or the jury

wife and the second wounding her in the hand. The

had been given a direction to exclude her evidence.

appellant was charged with the murder of H (count 1)

On the other hand there was no doubt that the jury, if

and with the attempted murder of his wife (count 2). No

properly instructed, would at least have convicted the

application was made to sever the indictment and no

appellant of manslaughter. However in considering

application was made to call the wife on the appellant's

whether to apply the proviso to s 2(1) of the Criminal

behalf. The wife was the sole eye-witness of what had

Appeal Act 1968 the court had no power to substitute

happened and gave evidence to the effect that the

a verdict for a different offence on the footing that no

appellant had deliberately shot H. The appellant gave

miscarriage of justice would have occurred if the jury

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had convicted of that offence. Furthermore the court

Leach v R [1912] AC 305 Under s. 4 of the Criminal

only had power to substitute a conviction of an

Evidence Act, 1898, the wife of a person charged

alternative offence under s 3(1)a of the 1968 Act when

with an offence to which the section applies is not

it appeared from the finding of the jury that the facts

compellable to give evidence against her husband.

essential to establish the alternative offence had been

APPEAL from an order of the Court of Criminal

proved. Since the wife's evidence had coloured the

Appeal.

entire findings of the jury it was impossible to say

The appellant was tried for an offence under the

that the jury had found facts appropriate to a verdict

Punishment of Incest Act, 1908, at the Stafford

of manslaughter except on the footing that they had

Assizes before Pickford J. and a jury and was

received support in their finding from the evidence of

convicted. At the trial the wife of the appellant was

the wife. It followed that there was no power to

called by the prosecution, but she raised the objection

substitute a verdict of manslaughter, and accordingly

that under s. 4 of the Criminal Evidence Act, 1898

the conviction of murder should be quashed and the

(1), she could not be compelled to give evidence

appeal allowed .

against her husband. Pickford J. ruled that the wife

All of this is common law if you look on legislation, has

was a compellable witness, and directed her to give

schedule where it states where spouse competent in respect of

evidence, which she did, and this ruling was affirmed

offenses like rape, abduction. See section 12 (1), schedule 1

by the Court of Criminal Appeal (Lord Alverstone

Evidence Act Jamaica.

C.J., Hamilton and Bankes JJ.) and the conviction

upheld.

Leach v R [1912]

AC 305 wherever spouse rendered

TOPIC: COMPETENCE AND COMPELLABILITY
CONTINUED

competent by statute , she is competent but not compellable.

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The spouse of the accused is always competent as a witness for

take it in its usual form, see the case of R v Hines and King

the accused subject to issues of credibility and weight. A

(1971) 17 WIR 326.

spouse is also competent as a witness for a co accused,

In this case one of the accused refused to take the prescribed

provided that the other spouse consents. See legislation for this

form of oath. He said he would swear by Almighty God, King

provision.

Rastafari. The court refused to allow him to be sworn. The

Oaths and Affirmations

All regional legislations have equivalent of what is provided

Court of Appeal said the judge erred. The rule is that the
legislation prescribed a permissive, not mandatory form. A

for in the English Oaths Act. The usual form prescribed in the

witness is allowed to take any form of oath he considers

Act are I swear by Almighty God that the evidence I shall

binding on his conscience. See the English case of R v Kemble

give

[1990] 3 All ER 116 CA. In the instant case the witness was a

Section 31 of the Evidence Act Jamaica outlines the power to

Muslim about to take the oath, there was no Koran available in

administer oaths . it reads:

Every court, Judge, Justice,

court. He took the oath using a New Testament Bible. This

Officer,

Commissioner,

raises the absurdity issue. The Court of Appeal held the

Arbitrator, or other person now or hereafter having by law

efficacy of the oath does not depend on the intricacies of the

or by consent of parties authority to hear, receive, and

particular religion being adhered to, but on whether in the

examine evidence, is hereby empowered to administer

courts view , the oath is binding on the witness conscience and

an oath to all such witnesses as are legally called before

whether the witness himself considers it to be so.

R v Hines and King (1971) 17 WIR 326: The

them respectively.

appellants Hines and King were tried by jury on an

Where religious beliefs or form of worship does not permit the

indictment containing three counts charging them

taking of the oath then a solemn affirmation is given. Questions

jointly with assault, robbery with aggravation and

arise as to when someone is willing to swear on oath, but not to

malicious damage to a motor bus. They were acquitted

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of robbery with aggravation but were convicted on the

Cap 264, stating that as far as he knew an oath taken in

other counts. At the close of the case for the prosecution

the form in which Hines wished to take it was not

the appellant King gave sworn testimony in his own

lawful. Hines thereupon rested his case. On appeal after

defence and closed his case. His defence was an alibi.

conviction it was submitted that the judge's refusal to

Thereupon the appellant Hines elected to give evidence

permit Hines to be sworn in the form Hines considered

on oath in his own defence but declined to be sworn in

to be binding on his conscience was wrong and resulted

the form prescribed by s 3 of the Oath Law, Cap 264

in depriving Hines of his right to testify on oath in his

[J], as repealed and re-enacted by s 2 of the Oaths

defence to the charges laid in the indictment. On behalf

(Amendment) Law, 1954 (No 43 of 1954) commencing

of King it was submitted that in wrongly depriving

"I swear by Almighty God that ". He said that his

Hines of testifying on oath in his own defence, King

reason for refusing to be so sworn was that he professed

was deprived of testimony which might have resulted in

the Rastafarian faith and would only consider himself

his acquittal.

bound by an oath in the form commencing "I swear by

Held: (i) the trial judge erred in refusing to permit

Almighty God, King Rastafari" as he and other

Hines to be sworn in a form which Hines declared to be

members of that faith regarded and worshipped the

binding on his conscience and in so doing deprived that

Emperor of Ethiopia (formerly known as Ras Tafari) as

accused of his right to give sworn testimony in his

"the true and living God that sits on the throne of

defence and his convictions therefore could not stand;

David". Members of that sect hold the belief that the

Emperor of Ethiopia is the living God, the returned

(ii) King was not deprived of any legal right to adduce

Messiah and representative on earth of God the Father.

evidence in the course of making his defence as a result

The trial judge refused to permit Hines to be sworn in a

of the trial judge's wrongful refusal to permit Hines to

form other than that prescribed by s 3 of the Oaths Law,

be sworn and King's convictions were therefore not

assailable on that ground.
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Appeal of Hines allowed.

Unsworn statements
Remember a child is not competent to give sworn evidence, he

Appeal of Kings dismissed.

may be allowed to give unsworn corroborated evidence. Now

examine the right of the defendant to make an unsworn
statement from the dock. The right to do so is a throwback to

R v Kemble [1990] 3 All ER 116 CA : Whether an

the days when there was no right to representation by counsel

oath is administered 'in a lawful manner' within s

and he had no right to give sworn evidence on his own behalf.

1(3)a of the Oaths Act 1978 to a person at a trial who is

neither a Christian nor a Jew does not depend on the

When the Criminal Evidence Act 1898 was passed, he was

intricacies of the particular religion adhered to by that

given the right to give sworn evidence in his own behalf, some

person but on whether the oath appears to the court to

persons felt the right to give an unsworn statement would

be binding on his conscience and whether it is an oath

disappear. However the view prevailing was that an unsworn

which that person himself considers to be binding on

statement is a valuable concession to the defendant and should

his conscience (see p 117 j, post).

therefore be preserved. So all evidence legislation in the

Commonwealth Caribbean reserves the right, see section 9

R v Chapman [1980] Crim LR 42 applied.

Evidence Act Jamaica. Where the British Virgin island is

concerned its abolished.

In R v Chapman [1980] Crim LR 42, it was held that

Section 9(g) Evidence Act Jamaica : Every person

failure to comply with s 1(1), Which was directory only,

called as a witness in pursuance of this Act shall,

did not necessarily invalidate the whole taking of oath .

unless otherwise ordered by the Court, give his

the oath was valid if taken in a way binding and

evidence from the witness box or other place from

intended to be binding upon the conscience of the

which the other witnesses give their evidence.

witness.
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What is the evidential value of an unsworn statement? The

appeal he raised a number of grounds on which he

standard direction to the jury is now that although it may not be

claimed his appeal should be allowed. Only one ground

evidence in the case (as it has not been tested by cross-

was, however, argued, namely, that the trial judge

examination), it is natural for jurys consideration and they

should have left self-defence to the jury. The Court of

should therefore give it such weight as they see fit, and they

Appeal accepted this argument, allowed the appeal and

should take it into account in deciding whether they feel sure

ordered a new trial. The Director of Public Prosecutions

that the defendant is guilty- see the case of DPP v Walker

appealed to the Board by leave granted by the Court of

(1974) 21 WIR 406 - Privy Council decision. Look also at the

Appeal under s 7 of the Judicature (Appellate

article - The Unsworn Statement From The Dock by Cohen

Jurisdiction) (Amendment) Act 1970 which provides

Michael 1981 Crim Law Report 224 written just before it was

that such leave may be granted where in the opinion of

abolished in England.

the Court, the decision involves a point of law of

exceptional public importance and it is desirable that a
further appeal should be brought.

Dpp v Walker (1974) 21 WIR 406 - Privy Council

decision : At the trial of the respondent for the murder

The respondent, his wife and their five year old son,

of his wife he relied on the defences of automatism,

Karyl, were in a motor car when he inflicted on her

provocation and diminished responsibility. There was

eleven stab wounds any one of three of which could

not at any time before or during his trial any suggestion

have caused her death. Karyl was not allowed to give

that he had killed his wife in self-defence. The jury

evidence. The only material before the jury were an

found him not guilty of murder but guilty of

manslaughter

on

the

ground

of

unsworn statement by the respondent and the evidence

diminished

of a witness who said he had seen the body of a woman,

responsibility. He appealed to the Court of Appeal

streaming with blood, fall from the driver's seat of a car

against his conviction and sentence, and by his notice of

into the road. This witness also said that he heard Karyl
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ask the respondent why he had done that to which the

and that therefore this was not a case in which the

respondent replied: There was nothing left for me to

Board should allow the appeal.

do. In his unsworn statement the respondent said that a

Held: that where an accused has not relied on

quarrel developed between him and his wife in the car

self-defence and the evidence before the jury is

as a result of which she stopped the car and rushed out.

consistent only with the force used being far greater

I went at her, held her and pulled her back into the car

than could conceivably have been necessary, no appeal

She fell across my lap and in the course of the

can succeed on the ground that the judge did not leave

struggle to get her inside the car she grabbed and held

self-defence to the jury; the decision of the Court of

on to my testicles, and squeezed me. I felt a severe pain,

Appeal could not, therefore, be allowed to stand

crampI felt I was going to faint or something. I

because it would follow that, in addition to the defences

remember having seen a knife in the centre tray trough

actually raised on behalf of an accused trial judges

of the car, along with a cigarette lighter. I reached for

might, in the future, feel obliged to leave to the jury not

the knife. Beyond that I don't recall anything until I

only any possible but also any impossible defence

heard Karyl say: Dada, why you kill Mummy?

which had not been raised but which human ingenuity

Before the Board it was argued on behalf of the

might devise. Otherwise, after the defences put before

respondent that even if the decision of the Court of

the jury at the trial had failed, the accused might

Appeal was wrong, (a) it did not involve a point of law

succeed in having his conviction quashed on the ground

of exceptional public importance nor was it desirable in

that the impossible defences had not also been left to

the public interest that a further appeal should be

the jury, and this would indeed divert the due

brought; and (b) it did not tend to divert the due and

administration of justice. The appeal would be allowed

orderly administration of the law into a new course,

and the conviction restored.

which may be drawn into an evil precedent in future,

Appeal allowed.
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trial review, skeleton arguments , so that the parties know what

TOPIC: COURSE OF EVIDENCE

they are about.

Introduction
In the course of evidence the order of speeches is important, as

In criminal cases the prosecution opens and indicates charges

that he asserts to prove. What you intend to prove, how you

well as the disclosure of evidence before trial. In civil cases

intend to prove it. At the end of the prosecutions case the

there is a requirement in Civil Procedure Rules that parties

defendant has a choice now to say no case to answer. Later the

disclose documents on which they intend to rely at trial. There

the defendant may exercise any of his three options. Where a

is also a requirement that parties exchange witness statements .

criminal accused calls no witness then the accused has the last

There is also a greater use in trials of affidavits sworn to by

word.

potential witnesses or depositions.

If everyone calls witnesses the prosecution has the first and the

In criminal cases there is also a requirement of disclosure on

last word. See the text Cross & Tapper on Evidence 11th

the prosecution. No comparable duty however on the defence

edition London Butterworths, 2007, page 293-315, Cross &

to disclose, save notably in some jurisdictions where the

Tapper.

defence is required to give notice of intent to rely on alibi. In

Jamaica there is no requirement for notice of alibi to be given.
Trial itself
Who has right to begin? The person who bears the burden of

Order of witnesses
The general rule is that it is counsels decision as to the order
of witnesses see Briscoe v Briscoe [1968] Probate 501. The

proof: in criminal cases - the prosecution; in civil cases - the

appeal was allowed and a rehearing ordered in matrimonial

claimant.

proceedings. where the magistrate refused to allow counsel for

Advocates speeches
Opening the case : in days gone by this often lasted for weeks.

respondent to call a certain witness until the husband himself

had given evidence, the Court of Appeal held it was wrong,

The Civil Procedure Rules introduced case management, pre-

that counsel has right to decide in civil cases.

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Briscoe v Briscoe [1968] Probate 501: On the hearing

on each side should remain out of court until they are

of matrimonial proceedings by a wife before a

required to give their evidence.

metropolitan stipendiary magistrate, the magistrate

refused to allow counsel for the husband to call a

Date: 14 January 2011- p

witness until he had first called the husband: Held the

TOPIC: COURSE OF EVIDENCE

CONTINUED

discretion lay with counsel to call what witnesses he

chose in what sequence he chose, and accordingly the
case would be remitted for rehearing before another

Power of judge to call witnesses

In civil cases pre CPR judges had no power to call witnesses

magistrate.

as to fact save with the consent of the parties. Before that in

civil cases the judge was more of an umpire . The evidence to

However in criminal proceedings the general rule is that the

be called used to be totally in the purview of the parties.

defendant if he proposes to give evidence should be called

before any of his witnesses. There are however cases where

However under the CPR it specifically provides that a judge

witnesses may be allowed to give evidence before the

may control evidence to be given in a case by making

defendant usually in case of 1) purely formal witness and 2)

appropriate orders at case management as to the :

a) Matters in which he desires to hear evidence,
b) Nature of evidence which it requires, and the
c) Way in which that evidence is to be presented

witness about whom there is no controversy see the case of R

v Joan Smith [1968] 2 All ER 115.
R v Joan Smith [1968] 2 All ER 115: At a trial of a

In exercising these powers, the court is guided by the

criminal charge the accused, if he gives evidence,

overriding objective Rule 29.1 of the CPR. This reflects great

should be called before any of his witnesses, and thus

change. Under the new rules judges are required to take steps

should give his evidence before he has heard the

to ensure that matters are dealt with more justly . Judges have a

testimony of his witnesses; it is also the general rule

more proactive role.

and practice in criminal cases that witnesses as to fact

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Law of Evidence notes compiled by Yvette Brown 2010-2011

In criminal cases the judges powers were always wider and the

evidence of the appellant's identity derived from police

trial judge has always had the power to call a witnesses not

interviews with the appellant. The appellant did not

called by either the prosecution or the defence if in his opinion,

give evidence because he thought the judge was hostile

the interests of justice required him to do so. It has been held

to him and in the absence of counsel for the prosecution

however, that this power is to be exercised with caution and

he was reluctant to be questioned by the judge. The jury

indeed should rarely be exercised see the case of R v Grafton

acquitted the appellant of causing grievous bodily harm

[1993] 96 Cr App R 156.

with intent but convicted him of the lesser offence of

causing grievous bodily harm. The appellant appealed

R v Grafton [1993] 96 Cr App R 156; [1992] 4 All

on the ground that if the prosecution decided to

ER 609 The appellant was charged with causing the

discontinue before concluding its case the judge was

complainant grievous bodily harm with intent. At his

not entitled to refuse to allow it to do so

trial his defence was self-defence. The prosecution

notwithstanding his view that the prosecution evidence

called as witnesses the complainant and then a friend of

already called could sustain a conviction nor was he

the appellant who supported the appellant's claim that

entitled to call any remaining prosecution witnesses

he had hit the complainant in self-defence when the

himself.

complainant had threatened the appellant and then hit

him with a bottle. The prosecution then decided to offer

Held Until the Crown's case was completed, the

no further evidence. After a discussion between counsel

decision whether to continue was that of the

and the judge, who made it clear that he thought the

prosecution alone. Although the trial judge had the

case should continue, counsel for the prosecution

power to call a witness, that power was to be used

declined to take any further part in the proceedings, and

sparingly and then only to achieve the ends of justice

the judge himself decided to call the one remaining

and fairness and it would not be right for the judge in

witness for the prosecution, a police officer who gave

effect to take over the prosecution merely because he

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Law of Evidence notes compiled by Yvette Brown 2010-2011

believed the evidence already called raised a prima

close of the case for the defence. Both prosecution and

facie case against the accused. It followed that the judge

defence counsel were allowed to cross-examine T, the

had been wrong to refuse to allow the prosecution to

defence then having to recall the appellant and to call

discontinue. The appeal would therefore be allowed and

two other witnesses who would not otherwise have

the conviction quashed .

been called. On appeal against conviction, Held The

conviction

There is a general rule of practice that judges should only call

matter

arises

ex

improviso

(unexpectedly)

be

quashed,

because

in

the

circumstances of this case there was no sufficient

witnesses after the close of the defence, and in cases where

some

would

ground for departing from the general rule of practice

in

that evidence should only be called after the defence

circumstances that could not have been foreseen see the cases

case has been closed where some matter arises ex

of R v Cleghorn [1967] 1 All ER 996; R v Foster (1968) 13

improviso .

WIR 514.
R v Foster (1968) 13 WIR 514. At the trial of the

R v Cleghorn [1967] 1 All ER 996: The appellant was

appellant on a charge of being in unlawful possession

charged with rape. The case for the prosecution was

of ganja, it was suggested in cross-examination of the

that a French au pair girl and her girl friend met the

witnesses for the Crown that the ganja of which it was

appellant and one T at a club. They all went to the

alleged the appellant was in possession had not in fact

appellant's flat where the appellant raped the au pair

been found in the possession of the appellant, but had

girl, while the friend was with T in another room. Early

been found in premises adjoining the appellant's

in the trial the judge said that if T was not called to give

premises into which S, a constable, had chased some

evidence for the defence or the prosecution, he, the

men. This suggestion was denied by the witnesses for

judge, would have to decide whether to call him

the Crown, but S was not called as a witness. The

himself. T was called by the court as a witness after the

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Law of Evidence notes compiled by Yvette Brown 2010-2011

appellant gave sworn evidence in support of the

Cleghorn ([1967] 1 All ER 996, [1967] 2 QB 584,

suggestion and called a witness in support thereof. At

[1967] 2 WLR 1421, CA) followed.

the close of the case for the defence, the resident

Appeal allowed.

magistrate stated that he wished S to give evidence, and

the case was then adjourned to another day, when S

Often during a criminal case i.e. while it is going on all

gave evidence in denial of the suggestion. The resident

witnesses may refer to one Mr B. the judge may enquire of

magistrate in announcing his decision stated that he

the defence or prosecution if they intend to call Mr. B, if they

accepted S as a witness of truth and therefore rejected

say no then the judge may himself call Mr. B subject to the

the evidence given by the defence. On appeal, Held: a

rule to do it with caution . Similar ex improvisio rule, where

judge had a discretion in a criminal case to call a

the defence closes its case, it is not generally open to the judge

witness not called by either party, but as a general rule

to say he will call witnesses to speak to a particular issue . This

of practice the court should call a witness at the end of

may be seen as second guessing of the defence.

the case for the defence only when no injustice or

prejudice could be caused to the defendant and some

Presence of a witness in court during proceedings

The general rule is that a witness remains out of court until he

matter arose ex improviso. Nothing had arisen ex

has been called to give evidence, (to ensure he gives

improviso in the case, and in calling S at the stage of the

independent evidence). The other side of the coin is that after

case at which he was called an injustice was done to the

giving evidence the witness should generally remain in court

appellant as at that stage it seemed clear that the

(to prevent him from warning others to watch out for particular

resident magistrate was in doubt as to whether or not

questions). What if a witness comes into court before giving

the story of the defence was true and if that was the

his evidence ? His evidence is not rendered inadmissible but

state of his mind at the end of the case for the defence,

the other side will comment on it. The rule is that even where a

then the appellant ought to have been acquitted. R v

witness has in fact been present in the court during precious

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Law of Evidence notes compiled by Yvette Brown 2010-2011

testimony the court has no power to prevent him from being

It is ethically wrong to coach witnesses. It amounts to

called , though at the appropriate time, the other side will

professional misconduct, to do so. What you should do is allow

comment on it - see the case of

the civilian witness to read over his notes if a long time has

Rv

Thompson [1967] Crim L R 62.

elapsed.

R v Thompson [1967] Crim L R 62: T was convicted of

R v Momodou [2005] 2 All ER 571, CA in England made it

shop breaking and larceny. At the trial he sought to call as a

clear that in criminal proceedings witness training/ coaching is

witnesses a person who had been sitting in court

prohibited but nothing is wrong with witness familiarization .

throughout, it not having been appreciated that she might

No harm in pre-trial visits to the locus in quo. Nothing wrong

be called on to give evidence. The judge held that he had a

with probing/ pressing a witness because that is what will

discretion to refuse to allow her to be called. Held, the fact

happen in court.

that a witness has been in court does not enable the judge to

R v Momodou [2005] 2 All ER 571: A disturbance

refuse to allow him to be called. However it would be open

took place at an immigration detention centre run by a

to the prosecution to comment on the fact that he had been

private company and prosecution of the defendants and

in court and heard the evidence. There had therefore been

other asylum seekers for violent disorder and arson

an irregularity at the trial . However the witnesss evidence

followed. It had been possible that the employees of the

did not relate to any important issue and the court was

company might be involved as witnesses in other

satisfied that even if she had been called the verdict would

criminal and civil proceedings concerning their

have been the same. Accordingly the proviso to section

employer. Accordingly, the employer had arranged for

4(1) of the Criminal Appeal Act 1907 would be applied and

witness training for certain of its employees. Following

the appeal dismissed.

advice from counsel for the Crown that such training

Witness training

was wrong and might constitute contempt of court the

programme was stopped. However, by then a number of
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Law of Evidence notes compiled by Yvette Brown 2010-2011

potential witnesses involved in trial of the defendants

against conviction and sentence. The issues before the

had received training, and two witnesses of significance

Court of Appeal included (i) the effect on the safety of

were believed to have received training. The jury were

the conviction of the witness training, particularly in

directed in robust terms as to the inappropriateness of

relation to two specific witnesses; and (ii) the judge's

the training that had taken place. At the outset of the

approach to the allegations of jury bias.

trial, in closing speeches and in the summing up, the

Held (1) The logical consequence of the well-known

jury had been addressed and directed as to the need to

principle that discussions between witnesses should not

put aside personal opinions about asylum issues. After

take place and that statements and proofs of one witness

the jury retired, an individual juror made a complaint

should not be disclosed to any other witness was that

that two jurors were not judging the case on the

training or coaching for witnesses in criminal

evidence, but were discriminatory and prejudiced. The

proceedings, whether for prosecution or defence, was

judge rejected submissions to discharge the jury and,

not

instead, invited the jury to consider whether their

permitted.

That

did

not

preclude

pre-trial

arrangements to familiarise witnesses with the layout of

collective ability to give an impartial verdict had been

the court, the likely sequence of events when the

compromised. Their response was that they took their

witness was giving evidence, and a balanced appraisal

oaths seriously and that they remained able to try the

of the different responsibilities of the various

case fairly and impartially. In due course, the individual

participants. Sensible preparation for the experience of

juror was discharged on grounds of ill-health and the

giving evidence which assisted the witness to give of

jury were further directed to put prejudice to one side.

his or her best at the forthcoming trial was permissible.

They convicted one defendant of violent disorder and

In the instant case, legitimate and powerful forensic

acquitted him of arson, and convicted the other

criticism of the witness training had been made by the

defendant of violent disorder. The defendants appealed

defence, the Crown had conceded its justification, and

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Law of Evidence notes compiled by Yvette Brown 2010-2011

the judge had indorsed it unequivocally. Moreover, the

had been impartial, conscientiously doing its duty to

way in which the issue had been left to the jury had

return true verdicts according to the evidence.

meant

the

Accordingly, the convictions were not unsafe and as the

creditworthiness of every witness who had received it.

sentences had not been manifestly excessive or wrong

Accordingly, the arrangements for training for the two

in principle, the appeals would be dismissed (see [94],

specific witnesses had not undermined the safety of the

[96], [97], [125], [126], below);R v Connor, R v

conviction (see [61], [62], [67], below). (2) The

Mirza [2004] 1 All ER 925 applied.

that

witness

training

had

damaged

exercise of a trial judge's discretion to discharge an

Examination in chief
In civil cases examination in chief has lost its a role as an art

individual juror or the entire jury for impropriety

required him to address the question whether it had in

because of the Civil Procedure Rules (i.e. exchange of

fact occurred, and if it had, whether it might be cured,

statements etc).

and if so how, or whether it was irremediable. That was

The object of examination in chief is to obtain testimony in

a case specific decision. In the instant case, the judge

support of the version of facts in issue for which the party

had directed himself to discover, as best he could,

calling the witness contends. There are four special rules to

whether the allegations made by the individual juror

consider:
1. Generally speaking, evidence may not be elicited by

had been accurate. The jury's response showed that they

appreciated the seriousness of the issue and were taking
a responsible view of their obligation to reach an

means of leading questions.

2. Witnesses may in certain circumstances be allowed to

impartial verdict. The jury had acquitted the first

refresh their memory from a document proposed by

defendant of the most serious charge against him and

him/ approved by him/ prepared under his supervision /

had acquitted other defendants who had all been asylum

subsequently approved by him (most times this relates

seekers, which sufficiently demonstrated that the jury

to expert witnesses).
141

Law of Evidence notes compiled by Yvette Brown 2010-2011

3. Witnesses cannot cannot generally be asked about his

3. Where there is no controversy, about the the

former statements to the same effect as to his present

answer you have suggested to the witness (e.g. it

statement (rule about previous consistent statement).

4. Party may only discredit his own witness if the witness

happened at the airport).

4. Where counsel wishes the witness to identify a

proves to be hostile.

person/ thing in court.

1. Leading questions
Common law rule, the general rule is that a party may

R v Simms (1966) 10 WIR 92: The appellant was

convicted of the offence of burglary and larceny on

not either in cross examination or in re-examination

an indictment the first count of which charged

elicit the facts of his case by way of leading questions

burglary and larceny, and the second count,

see the Cross & Tapper on Evidence 11th edition

London Butterworths, 2007,

receiving. The case for the Crown depended entirely

page 295, Cross &

on the doctrine of recent possession. On appeal,

Tapper.

complaint was made that the trial judge in his

R v Simms (1966) 10 WIR 92 see page 96 , in a trial

summation to the jury, although defining the

for burglary (6pm-6am), the prosecutor asked the

offence of burglary, failed entirely to give the usual

complainant did you get awakened at 4:30am?

definition of larceny. Complaint was also made that

leading question , the Court of Appeal said the question

although he gave general directions on the burden

was impermissible. Despite of this general prohibition

of proof at the commencement of his summing-up,

there are four situations where leading questions may

the trial judge when dealing with the law of recent

be asked:
1. With the courts leave/ permission
2. Where witness is being led on the introductory

possession did not tell the jury that even though

they may not have believed the explanation given
by the appellant, nonetheless if it had the effect of

part of the testimony (e.g. name, date and time)

raising a doubt in their minds they should give the

142

Law of Evidence notes compiled by Yvette Brown 2010-2011

benefit thereof to the appellant. One of the defences

carefully put to the jury. R v Cecil Gabbidon (1963),

raised by the appellant was an alibi and it was also

Gl LR 95, and R v Beach (1964), 6 WIR 377,

complained that the trial judge failed to remind the

followed. (ii) it was not enough for the judge to give

jury that even though they rejected the alibi,

general directions on the burden of proof at the

nonetheless if it had the effect of creating a doubt

commencement of his summing-up and not follow

the benefit of such doubt ought to be given to the

those directions up with more detailed directions

appellant. It was also complained that in examining

when dealing later on with such matters as the

a witness for the Crown, Crown counsel had put a

doctrine of recent possession. The jury should have

leading question to the witness as to the time when

been told that if an explanation had been offered by

the burglary was committed, and the answer

the appellant which left them in doubt as to his

admitted in evidence. Held: (i) it was most

knowledge that the property had been stolen, the

desirable that the judge should have directed the

offence had not been proved and the verdict should

jury on the necessary ingredients of the offence of

be Not Guilty. (iii) the jury should also have been

larceny for two reasons:(a) the first count of the

told, with respect to the alibi raised by the appellant,

indictment charged the composite offence of

that even though they rejected his alibi nonetheless

burglary and larceny, and (b) the second count was

if it had the effect of creating a doubt, the benefit of

for the alternative offence of receiving, and in both

such doubt ought to be given to the appellant. (iv)

cases, proof of larceny was essential. The Crown's

where it is desired to obtain evidence on some vital

case depended entirely on the doctrine of recent

ingredient of an offence, it is the duty of counsel for

possession, and it was certainly desirable that in

the Crown to see that the questions he puts to the

such a case the necessary ingredients which go to

witness are not leading, because what is desired is

make up the offence of larceny should have been

not the evidence of counsel for the Crown but the

143

Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence of the witness himself, and, put in the

R v Beckford (1966) 9 WIR 437. Always been

form in which the question was asked, counsel for

doubted that Beckford can be correct.

the Crown was putting in the mouth of the witness a

R v Richardson [1971] 2 All ER 773 : Shortly

vital ingredient of the offence of burglary.

before being called to give evidence at the

Appeal allowed. New trial ordered.

appellant's trial in respect of two offences which

had taken place some 18 months earlier, the
prosecution

2. Rule about refreshing memory

Separate two situations:
a) Refreshing memory out of court before trial
b) Refreshing memory in court
It has long been the practice for witnesses for the

witnesses,

at

the

instigation

of

prosecuting counsel, were given to read the

statements which they had made to the police some
weeks after the commission of the offences. This

prosecution in criminal cases to refresh their

fact came to light at the trial and objection to what

memory prior to trial by reference either to their

had occurred was immediately taken by defence

original statements to the police or their depositions

counsel. The trial judge was referred to Home

taken at

Office

the preliminary inquiry/

committal

Circular

No

82/1969a which

stated:

proceedings. In the case of R v Richardson [1971]

'notwithstanding that criminal proceedings may be

2 All ER 773 the trial took place some eighteen

pending or contemplated, the chief officer of police

months after the incident , it was held nothing

should normally provide a person, on request, with

improper in witnesses being allowed to refresh their

a copy of his statement to the police.' He held that

memory from their statements shortly before the

in the circumstances it was not objectionable for the

trial. The older Jamaican Court of Appeal case

prosecution witnesses to have had an opportunity of

which says there was something wrong with that

refreshing their memories and that the defence had

not been prejudiced by what had occurred.
144

Law of Evidence notes compiled by Yvette Brown 2010-2011

Supplies of Copies of Witnesses' Statements

the prosecution admitted in evidence that he had

Held (i) There could be no general rule that

refreshed the memory of a witness from the

prosecution witnesses might not before the trial see

depositions in the case, prior to the trial. On an

the

not

application for leave to appeal against conviction,

contemporaneous, they had made at some period

counsel for the applicant characterised the action of

reasonably close in time to the event which was the

the police witness as being undesirable and not in

subject of the trial, for such a rule would in many

the best interest of justice, and invited the court to

instances militate against the interests of justice and

make a pronouncement in the matter.

statements

which,

although

render the testimony of such witnesses more a test

Held: the trial judge had quite properly referred to

of memory than of truthfulness .(ii) In view of the

the matter in his directions to the jury and pointed

length of time which had elapsed before the present

out to them that it affected the credit to be attached

case came on for trial, the trial judge was correct in

to the witnesses' evidence. The matter was,

his ruling; furthermore, on the facts of this case, the

therefore, put in its proper perspective by the trial

vital evidence was that of visual identification and

judge. It was the first time that this practice had

that evidence was in no way assisted by the

come to the knowledge of the court and in the view

statements so that the defence was in no way

of the court it was an undesirable one and one

prejudiced by its admission .

which ought not to be pursued.

Lau Pak Ngam v Reginam [1966] Crim LR 443

Application refused.

approved.
Date: 4 February 2011- p

R v Beckford (1966) 9 WIR 437: At the trial of the

applicant on a charge of murder, a police witness for
145

Law of Evidence notes compiled by Yvette Brown 2010-2011

TOPIC: COURSE OF EVIDENCE

CONTINUED

person to whom it was made , see the case of R v

Osbourne (1905) 1 KB 551.

COURSE OF TESTIMONY

R v Osbourne (1905) 1 KB 551; [1904-07] All

3. Previous inconsistent statements *

i)
Complaints in sexual cases- 1st Exception To

ER Rep 54: In cases of rape, indecent assault,

and similar offences the mere fact that a

Previous Inconsistent Statement

On charges of sexual offences the terms of a complaint

complaint by the prosecutrix in the absence of

the prisoner is made in answer to a question is

made by the witness after the commission of the

not of itself sufficient to make it inadmissible. A

offence can be narrated to the court both by the witness

question of a suggestive or leading character -

and by the person to whom the complaint was made

eg, "Did So-and-so (naming the prisoner)

provided that the complaint was made at an early

assault you?", or "Did he do this or that to you?"

opportunity that reasonably presented itself after the

- or a question of an intimidating character, will

commission of the offence . The complaint is not

make evidence of the answer inadmissible, but a

admissible unless it can be shown that it was not

question put to the prosecutrix such as: "What is

obtained by the use of leading questions.

the matter?" or "Why are you crying?" will not

The complaint should not be made to the person on a

do so. In each case the decision on the character

leading question, e.g. a mother asking a child if it was

of

that man .

the

question

put,

as

well

as

other

circumstances, such as the relationship of the

It was once thought that only the fact of the complaint

questioner to the prosecutrix, must be left to the

could be proved, but now established, that the terms of

discretion of the judge. If the circumstances

the complaint may be given by the witness and the

indicate that but for the questioning there

probably would have been no voluntary
146

Law of Evidence notes compiled by Yvette Brown 2010-2011

complaint, the answer is inadmissible. If the

R v Birks [2003] 2 Crim App Rep 122 ; [2003]

question merely anticipates a statement which

All ER (D) 155 (Jan): Abstract - A judge had

the prosecutrix was about to make, it is not

erred in admitting evidence under the doctrine

rendered inadmissible by the fact that the

of recent complaint when the complaint could

questioner happened to speak first. Such a

have been made as late as six months to a year

complaint is admissible in a case where consent

after the alleged offence. Digest - The defendant

is not material and so the complaint cannot be

was charged with three counts of indecent

put forward as negativing consent - eg, indecent

assault and one count of indecency with a child.

assault on a girl under thirteen - as being

The complainant was 19 at the time of the trial,

evidence of the consistency of the conduct of

but her evidence was that the events complained

the prosecutrix with the story told by her in the

of had begun when she was about five or six

witness-box. The judge must be careful to

years old, and that they had continued about

inform the jury that the evidence of the

once a month for about a year. At the trial, the

complaint

facts

complainant gave evidence, after the judge had

complained of, and must not be regarded by

ruled it to be admissible, that she had first made

them, if believed, as other than corroborative of

a complaint to her mother about the defendant's

the credibility of the prosecutrix, and, when

behaviour about two months after the last

consent is in issue, of the absence of consent.

incident,

is

not

evidence

of

the

having

watched

television

programme about child abuse with her mother.

R v Birks [2003] 2 Crim App Rep 122- where a

In cross-examination she said that the complaint

complaint made two months after the incident was held

could have been made up to six months after the

to be inadmissible.

last incident. The complainant's mother gave

147

Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence

that

she

had

understood

the

in the past to accept that complaints had been

complainant to be referring to events which had

made as soon as reasonably possible, and within

occurred a year previously. The defendant was

a reasonable time, even though the period of

convicted, and appealed against conviction on

time between the incident and the complaint

the ground that the judge should not have ruled

extended not merely to days but even to months

that the evidence of the complainant and her

or years.

mother as to the complaint was admissible or,

The appeal would be allowed.

alternatively, that the judge should have

discharged the jury once it had emerged in

In the current state of the law the court was

evidence that the complaint might have been

unable to extend the test of a complaint being

made up to six months or even a year after the

made in reasonable time as contended for by the

defendant's conduct had ended. The defendant

Crown. It was well known that the doctrine with

contended that in order for evidence to be

which the court was concerned was referred to

admissible as evidence of recent complaint, the

as the doctrine of recent complaint. It was itself

complaint should not only have been made on

an exception to the doctrine that evidence of

the first occasion that reasonably presented

previous

itself, but also that it should have been made

permitted. In those circumstances the court was

within a reasonable time of the alleged offence.

not permitted, as a matter of authority, to

It was submitted by the Crown that in the light

understand that the test that the complaint had to

of modern understanding of the difficulties

be made within a reasonable time of the alleged

facing young people who had been subjected to

offence could be understood to mean 'had to be

sexual abuse, the courts should be readier than

made within a reasonable time of the alleged

consistent

statements

was

not

offence whether the complaint was recent or

148

Law of Evidence notes compiled by Yvette Brown 2010-2011

not'. Accordingly the court concluded, with

and as tending to corroborate his evidence:-

some reluctance, that the judge had erred in the

Held, that the evidence was rightly admitted.

instant case in admitting the evidence in the first

The terms of the complaint are not evidence of the facts

place but, a fortiori, in not discharging the jury

stated in the complainants evidence . Their only

once it had emerged that the time in question

significance is that they establish the consistency of the

was not simply two months, but up to six

complaint. In other words, it goes to her credit. So it

months or even a year.

follows from this that where the complainant gives no

R v Valentine [1996] 2 Cr App R 213

evidence, then no other evidence is admissible of a

considered.

complaint made by her (the rule operates in hard cases).

See Wallwork [1958] 42 Crim App Rep 153. If the

Camelleri v R (1922) 2 KB 122- establishes that this

complainant does not give evidence, then no evidence

rule applies to male as well as females victims of sexual

can be lead from the person to whom the complaint was

offences.

made.

Camelleri v R (1922) 2 KB 122: On the trial of

Wallwork [1958] 42 Crim App Rep 153: 1)

an indictment against a prisoner for committing

On a charge of incest with appellants daughter

an act of gross indecency with a boy of the age

aged five, the particulars of offence charged the

of fifteen, the judge admitted particulars of a

offence as having been committed in the

complaint made by the boy to his parents shortly

county of Sussex or elsewhere: Held that,

after the commission of the offence, not as

incest being an offence wherever in England it

evidence of the facts complained of but to show

was committed, the words naming the place of

consistency of conduct on the part of the boy

the offence were surplusage and did not affect

149

Law of Evidence notes compiled by Yvette Brown 2010-2011

the

validity

of

the

indictment.

could have called the step-grandfather himself,

(2) At the trial the child was placed in the

as a judge has power to call a witness who he

witness box by the prosecution, but was unable

thinks can throw light on the case even after the

to give any evidence. Evidence by the childs

close of the case for the prosecution; (b) it is

grandmother of a complaint made to her by the

undesirable that a child as young as five should

child, in which she named appellant as her

be called as a witness; (c) the basis of the

assailant, was admitted. Appellant, after being

admissibility of a recent complaint being that it

for some days with the child, had left her in her

goes to show consistency of complainants story

grandmothers house, where also the childs

and conduct, such complaint is inadmissible

step-grandfather was, and some hours later the

where complainant herself has given no

child was examined by a doctor, who found that

evidence. In the circumstances, however, the

there had been sexual interference with her. In

court would apply the proviso to Criminal

opening the case for the defence counsel

Appeal Act 1907 s 4(1) and dismiss the appeal.

referred to the possibility of the offence having

been committed by the childs step-grandfather.
The prosecution had not called the step-

White v R [1999] 1 Crim App Rep 153- makes the

grandfather as a witness, and the judge, after

same point.

expressing the view that it would have been

3. Previous inconsistent statements *

Rebuttal Of Afterthought Or Of The Suggestion Of

desirable for his evidence to be heard, decided

that he himself had no power to call the step-

Afterthought2nd exception to previous inconsistent statements

It is alleged that a witnesss testimony is a recent

grandfather as a witness at that stage of the trial.

The jury convicted appellant: Held (a) the judge

concoction, then a previous statement made by the

150

Law of Evidence notes compiled by Yvette Brown 2010-2011

witness to someone else or in a note made for his

These are the three (3) main exceptions but in practice

personal use becomes admissible.

there are 2 others

1. On the defendants side statements made by a

See Oyesiku (1971) 56 Crim App Rep 240. Wife is

person to the police upon arrest are routinely

giving evidence on behalf of husband. It was suggested

admitted , e.g. where the police said I cautioned him

to her in cross examination that she had invented part of

and the accused said not me sir . The accused can

her evidence after consultation with her husband. It was

held that this should have allowed a statement made by

say he said that to the police.

2. Evidence of a previous identification of the accused

her to her solicitor after the offence in question, to be

by a witness may also be given. If a witness

admitted in evidence.

attended an identification parade and picks out a

certain person, the witness will be asked questions

The exception only comes into play if it is distinctly

about going to the identification parade and also to

suggested to the witness that his/ her evidence is an

identify him in court.

afterthought. It is not enough to trigger the exception if

it is suggested to the witness that merely he/ she is not

Where the accused makes a mixed statement upon arrest , (a

speaking the truth.

statement that is partly exculpatory and partly inculpatory) then

in fairness to the accused, the entire statement becomes

3. Previous inconsistent statements *

Statement Forming Part Of The Res-Gestate
3rd exception to the rule against previous

admissible , e.g. the defendant said yes I chop him up, but he
was attacking me. See R v Sharp [1988] 1 All ER 65 HoL

inconsistent statements

decision.

If a statement forms part of the res-gestae it may be

R v [1988] 1 All ER 65: Where a statement made out

accepted as an exception to the general rule.

of court by a defendant in criminal proceedings is in

part an admission and in part self-exculpatory, the
151

Law of Evidence notes compiled by Yvette Brown 2010-2011

whole of the statement constitutes evidence of the truth

and (ii) his first oral statement ought not to have been

of the facts it asserts and the judge should direct the

admitted in the absence of his written statement made

jury that both the incriminating parts and the excuses or

on the same occasion. The court allowed the appeal on

explanations must be considered in determining where

the first ground, and expressly refrained from reaching

the truth lies, although where appropriate, as it usually

any decision on the second ground. A retrial was

will be, the judge may, and should, point out that the

ordered. At the retrial, the prosecution again called the

incriminating parts are likely to be true whereas the

police sergeant to give evidence concerning the

excuses do not carry the same weight .

appellant's oral statements but did not produce the

written statement. The defence did not object to the

Cedrick Gordon v R (1996) 49 WIR 300: he appellant

admission of the oral statements nor call for the

responded 'When I tell you how it go you tell me if you

production of the written statement. The appellant was

would not do the same thing'. The police officer said

convicted and appealed to the Court of Appeal. The

that he wanted to make a written record of what had

court held that it had been unfair of the prosecution not

been said. The appellant agreed and dictated a statement

to tender the written statement in evidence as it had

which was duly recorded, signed and witnessed. Later

been made in the context of the first oral statement and

on the same day, the police sergeant returned and

the trial judge ought to have directed the jury to

arrested the appellant. After he had been arrested,

disregard the first oral statement in the circumstances.

charged with the murder and cautioned the appellant

The second oral statement had not been vitiated. In the

said 'Long run short catch, a Cameron [the victim]

absence of any miscarriage of justice, the appeal was

caused it'. At his trial the appellant was convicted. He

dismissed and the appellant appealed to the Privy

appealed to the Court of Appeal on the grounds that (i)

Council. Held, advising that the appeal be dismissed,

the summing-up of the trial judge had been prejudicial,

that although the prosecution ought to have tendered the

152

Law of Evidence notes compiled by Yvette Brown 2010-2011

appellant's written statement in evidence, the defence

he has made at other times

(which must have been aware of its existence) made no

inconsistent with his present testimony;

but before such last-mentioned proof can be

attempt to insist on the production of the written

given, the circumstances

statement and did not object to the admission of the first

statement,

oral statement in the absence of the written statement;

to

the

supposed

designate the

particular occasion, must be mentioned to the

the second oral statement had no direct relationship

witness, and he must be asked whether or not

with the written statement and there was no injustice in

its

sufficient

of

a statement

he has made such statement.

admission; accordingly, there had been no

miscarriage of justice in the admission of the two oral

Generally speaking a person will not be allowed to

statements despite the absence of the written statement.

impeach his own witness but he may, should the

witness in the opinion of the judge prove adverse ,

TH

4. Examination In Chief Of Hostile Witness - 4 rule

Section 15 Evidence Act Jamaica - deals with hostile

contradict him with the leave of the judge , to show that

on a previous occasion he made a statement contrary to

witnesses.
Impeaching, credit, cross examination of

his present evidence.

witnesses
Section 15 Evidence Act Jamaica
A party producing a witness shall not be
allowed to impeach his credit by

Allows you to cross-examine your own witness.

Textbooks make distinction between an unfavourably

general

witness and a hostile witness. An unfavourable witness

evidence of bad character; but he may, in case

should not in all occasions be seen as hostile e.g. saying

the witness shall, in the opinion of the Judge,

prove

adverse,

contradict

him

5 oclock for 7 0 clock.

by other
A witness will be considered hostile if in the opinion of

evidence, or by leave of the Judge, prove that

the judge he is not desirous of speaking the truth at the

153

Law of Evidence notes compiled by Yvette Brown 2010-2011

instance of the party calling him or to put it another

since the defence had not only involved an

way he will be treated as hostile if he displays a hostile

attack on the prosecution witnesses but gone

animus towards the party calling him. An application

further and put the appellant's own character in

for leave to treat the witness as hostile must be made to

issue, it would give the jury a wholly false

the judge: see R v Powell (1985)

impression if they were not to know of the

WLR 364.

convictions. He accordingly exercised his

discretion in favour of the Crown. The appellant

R v Powell (1985) 1 WLR 1364; [1986] 1 All

was convicted. He appealed.

ER 193: The appellant was charged with

Section 1, so

far as material, is set out at p 195 a b, post

knowingly living wholly or in part on the

Held Since the appellant had made a

earnings of prostitution contrary to s 30 of the

deliberate attack on the conduct of prosecution

Sexual Offences Act 1956. His defence in

witnesses which was calculated wholly to

examination-in-chief was that the prosecution

discredit those witnesses and which raised a real

evidence was a total fabrication. The Crown

issue about the conduct of important witnesses

sought to cross-examine the appellant under s

which the jury would have to settle in order to

1(f)(ii)a of the Criminal Evidence Act 1898 on

reach their verdict, the judge had been entitled

his previous convictions on the grounds that the

to allow the jury to know about the appellant's

appellant had put his own character in issue and

previous convictions; and the fact that the

had also attacked the prosecution witnesses by

defendant's convictions were not for offences of

alleging that they had lied on oath. The

dishonesty but for offences bearing a close

appellant had previously been convicted on

resemblance to the offences charged was a

charges of allowing his premises to be used for

matter which the judge had been entitled to take

the purposes of prostitution. The judge held that,

154

Law of Evidence notes compiled by Yvette Brown 2010-2011

into

consideration

when

exercising

his

CONTINUED

discretion, and did not oblige him to disallow

the proposed cross-examination. Furthermore,

Cross-examination
This may be broken down as to cross examination as to the

the effect of the appellant's attack on the

issue and cross examination as to credit . The first one is

prosecution witnesses and of his putting his own

designed to illicit statements from the witness concerning the

character in issue was cumulative and not

facts in issue which are relevant to the issue and which are in

alternative. The appeal would therefore be

the cross-examiners favour. (Sometimes there is some

dismissed (see p 194 d e and p 198 e to h, post).

information that you need to get out).

Selvey v DPP [1968] 2 All ER 497 applied.

On the other hand, cross examination as to credit is designed to

suggest to the tribunal of fact that the witness is not the kind of

See also R v Thompson (1977) 64 Crim App Rep 96-

person whose evidence is capable of belief . (For instance

this case confirms that the statutory provision is not the

putting to the witness that he made a previous inconsistent

only authority for treating the witness as hostile because

statement).

the common law has always allowed the judge to

Generally speaking, where it is intended to challenge the

permit leading questions to be put to a recalcitrant

witness evidence on a particular point and to call evidence to

witness .

contradict what the witness has said then it is the obligation of

Note: In making the application under section 15 of the

the cross-examiner to draw the witnesses attention to the

Evidence Act, you need to make an informed decision.

contrary version for which you contend so that he may

Stop and think about the position.

comment upon it.

Up until quite recently it was considered improper for counsel

Date: 11 February 2011- Morning

to put to a witness a suggestion that he did not propose to back

TOPIC: COURSE OF EVIDENCE

155

Law of Evidence notes compiled by Yvette Brown 2010-2011

up i.e. support by calling evidence, by calling a witness to that

even though the matter had been fully discussed

effect.

with him. There was, however, no written record

of the decision of the appellant not to give

See Ebanks v R [2006] 1 WLR 1827 case from Cayman

evidence (as alleged by the attorneys), nor of his

Island , the Privy Council held that it was counsels duty to put

instructions to them. Held, advising that the

to Ps witness what his instruction from his client were on a

appeal should be dismissed (Lord Steyn and Sir

particular issue always assuming that the suggestion is on a

Swinton Thomas dissenting), that the culpable

relevant matter.

failure

of

the

contemporaneous

Ebanks v R [2006] 1 WLR 1827; (2006) 68

attorneys
written

to

make

record

of

their

instructions did not, ipso facto, entitle the

WIR 249: On an appeal to the Privy Council,

appellant to the benefit of any doubt and in

the appellant alleged that he had been denied a

consequence to have the appeal allowed, and

fair trial by reason of the conduct of his

although there was a conflict of affidavits the

attorneys who (despite his wish to give

Board had been able to satisfy itself without any

evidence) had in effect prevented him from so

further evidence being taken that the verdict of

doing and, further, who had failed to cross-

the trial court had been safe.

examine two police witnesses to the effect that

they were lying when giving evidence of a
statement which they had alleged had been

This decision caters to the usual type of case where you have

made by the appellant. The attorneys (in

nothing to support it.

affidavits in response) maintained that from the

The rule that permits a witness to be challenged by reference to

outset the appellant had insisted that he would

a previous inconsistent statement made by him.

not give evidence, and had persisted in this view

Please read Section 16 of the Evidence Act Jamaica.

156

Law of Evidence notes compiled by Yvette Brown 2010-2011

How and when witnesses evidence on cross

See R v Pottinger (1960) 2 WIR 47: The

examination may be contradicted

16. If a witness, upon cross-examination as to a

appellant was convicted of a charge under the

Motor Vehicles Insurance (Third-Party Risks)

former statement made by him relative to the

Law, Cap 257 [J], s 8 (1), of failing to produce

subject-matter of the cause, and inconsistent with his

the certificate of insurance of the vehicle she

present testimony, does not distinctly admit that he

was driving, after request by a constable to

has made such statement, proof may be given that he

produce it. He had not previously asked her

did in fact make it; but before such proof can be given,

name and address. At the trial the constable was

the circumstances of the supposed statement, sufficient

to

designate

the

particular

cross-examined as to a statement given by him

occasion, must be

at the trial of another charge against the

mentioned to the witness, and he must be asked

appellant. A copy of the evidence given by the

whether or not he has made such statement.

witness and certified by the clerk of the courts

Cross examiner must bring it to the witnesses attention where

was tendered by the defence but was rejected by

the witness said something else before, if admitted that

the resident magistrate. Held: (i) the intention of

something else was said by witness, no need to apply the

the Motor Vehicles Insurance (Third-Party

statutory provision. If denies having said something different

Risks) Law [J] is that use of a motor vehicle on

before, will need to apply statutory provision e.g no one did not

a public road shall not be permitted unless there

tell the RM that you can now beg the court leave to tender in

is in force a policy of insurance in relation to its

that portion of the statement/ deposition. See the cases of R v

user, and s 8 is directed at requiring the

Pottinger (1959) 2 WIR 247 and

production of the certificate of insurance by the

R v Isaacs and Miles

(1977) 26 WIR 4.

user. Failure therefore to give any of the

information required by s 8 to a constable or to
157

Law of Evidence notes compiled by Yvette Brown 2010-2011

produce the certificate is an offence. (ii) section

the applicant Isaacs sought to tender a sentence

17 of the Evidence Law, Cap 118 [J], permits

from the deposition of DB at the preliminary

proof of a former statement of a witness only

examination which appeared to be inconsistent

where the witness has made at the trial a

with her evidence at the trial and which she

statement which is inconsistent with that former

denied. The learned trial judge indicated that the

statement.

entire deposition and not merely one sentence

from it had to be put in evidence. The deposition

(iii) section 27 of the Judicature (Resident

contained another passage which may have been

Magistrates) Law, Cap, 179 [J], permits the

capable either of modifying or refuting the

tender of a certified copy of the notes of the

disputed sentence or of explaining her denial of

evidence given by a witness at a previous trial,

it. Held: (i) that it was the first duty of the

only at the trial or hearing of civil suits. (iv) the

learned trial judge to admit the disputed

certified copy of the notes was properly rejected

sentence in evidence and there could be no

as (a) it was not shown that the witness had

justification for putting the entire deposition in

made a statement inconsistent with his evidence,

evidence; (ii) that having admitted the disputed

and (b) the trial was not of a civil suit.

sentence the learned trial judge could thereafter

Appeal dismissed.

make such use as he thought fit of the later

statement in the deposition; (iii) that the failure
to admit the disputed sentence excluded from

R v Isaacs and Miles (1977) 26 WIR 477: The

the jury's consideration evidence which may

applicants were convicted for murder, the only

have assisted them in deciding on the credibility

eye witness called for the prosecution being DB.

of the witness.

During the cross-examination of DB counsel for

158

Law of Evidence notes compiled by Yvette Brown 2010-2011

Appeal allowed.

intent.

The

incident

out

of

which

the

proceedings arose took place at the bus stand

Collateral Questions
The general rule is that answers given by a witness to collateral

adjoining Princess Alice Highway on 19th

February 1974. According to Luther Moore, a

questions must be taken as final which does not mean that the

police corporal who was off duty at the time, the

answer must be believed but only that no evidence can be

applicant was cuffing, kicking and pushing one

called to contradict them.

Lolita Lowe who was parrying the blows by

Collateral facts will generally be facts which are relevant to

raising her hands. A crowd of about 18 persons

credit but not otherwise to the issue. E.g. defendant charged

was present, some of them shouting to the

with rape , defence is consent. Complainant is cross examined

applicant and telling him not to beat the woman

about previous sexual encounters as to whether they were

like that. He went to the applicant, told him that

consensual this will be relevant. If the question has to do with

he was a policeman in plain clothes, that his

sexual encounters with other men then this will be attacking

conduct was causing a disturbance near the

her credibility. Her answer will be final since not an issue in

highway and that it was an offence to do so. The

the case.

applicant became abusive and he then arrested

Basis of the rule is that the trial must be contained, cant call

him for causing a disturbance near the highway.

witness to prove every issue in a case .

Corporal Moore went on to say that a struggle

ensued in the course of which he called on

See R v Roach (1975) 26 WIR 63 ; R v Smith (1966) 10 WIR

Lionel Ramsay to assist him. Later a further

271

struggle ensued in the course of which the

applicant got away and wounded the corporal

R v Roach (1975) 26 WIR 63 ; The applicant

with a knife. The applicant denied kicking Lowe

was convicted of escape and wounding with

159

Law of Evidence notes compiled by Yvette Brown 2010-2011

or that there was a crowd. He said there was no

police station sometime after the incident. It had

disorderly conduct, that he was never told that

been suggested to Ramsay in cross examination

he was being arrested for causing a disturbance,

that he had shown the applicant's mother a knife

and that he did not consider he was in lawful

at the police station that night, that he had told

custody. He also denied wounding the corporal.

her that he had to handle the applicant rough

The grounds alleged that the learned trial judge:

and that he had said that if the applicant was

(a) failed to give a proper direction on the

around, he would have torn him to pieces. The

ingredients of the offence of making or causing

defence called the applicant's mother to give

a disturbance contrary to s 55 (1) of the

evidence of the words spoken by Ramsay at the

Highways Act 1900 No 5 [B], and (b) wrongly

police station but when she sought to do so, the

directed the jury on the power to arrest for

court ruled that any statement made by Ramsay

causing a disturbance when he told them 'if

to the defence witness in the absence of the

Corporal Moore was acting in a reasonable and

applicant was inadmissible. On appeal. Held

honest belief that the accused was causing a

(i) In the context of s 55 of the Highways Act

disturbance near the highway then as a

1900 No 5 [B] it is unnecessary to show that a

matter of law I direct you that he had authority

breach of the peace was committed or

to arrest.' A further ground was that the trial

anticipated. Any serious disruption of the public

judge wrongly excluded admissible evidence.

convenience, order or tranquillity is covered by

Counsel for the applicant sought at the trial to

the provision irrespective of whether violence

adduce evidence from a defence witness in

was caused or threatened or likely. The legality

regard to words spoken by a prosecution witness

of the arrest by the constable did not turn on

Lionel Ramsay to the applicant's mother at the

whether or not the conduct of the applicant

160

Law of Evidence notes compiled by Yvette Brown 2010-2011

constituted a breach of the peace at common law

7 (c) of the Dangerous Drugs Law, Cap 90 [J].

and the trial judge was not in error in telling the

At

jury to rely on the ordinary and natural meaning

cross-examination to a constable called as a

of disturbance. (ii) However, an arrest under the

witness for the Crown, that in a case previously

section is only authorised where the offender

tried in the same court in which five persons

makes a disturbance or causes a disturbance to

were charged with being in possession of ganja,

be made and not on the constable's belief that an

he had admitted having found only one parcel of

offender is so doing. The trial judge was

ganja in a car, but had divided the parcel into

therefore in error when he intimated to the jury

five separate parcels, so as to connect each

that in deciding whether or not the arrest was

accused with a separate parcel. The constable

lawful, they had to determine, not whether the

denied this suggestion. The defence called as a

applicant had caused a disturbance, but whether

witness the resident magistrate who had tried

Corporal

honestly

the case in respect of which this suggestion was

believed that he had. (iii) The statements made

made, and he was asked in examination-in-chief

by Ramsay to the applicant's mother were

a question as to what the constable was alleged

neither irrelevant nor collateral and the applicant

to have said at that trial. Objection was taken on

was entitled to have the evidence led for the

behalf of the Crown to this question on the

defence.

ground that it was irrelevant to the issue and

Moore

reasonably

and

the

trial

it

was

suggested

in

inadmissible, and the objection was upheld and

the evidence excluded. On appeal, it was
R v Smith (1966) 10 WIR 271: The appellant

submitted that the evidence sought to be

was convicted of the offence of being

adduced was relevant and would affect the

unlawfully in possession of ganja, contrary to s

161

Law of Evidence notes compiled by Yvette Brown 2010-2011

credit of the constable by showing whether he

to allow the witness to clarify issues which have arisen out of

was a person who should be believed.

cross-examination on which it is not clear what his evidence is.

Held: the evidence which it was sought to

Date: 11 February 2011- Afternoon

adduce was for the purpose of impeaching the

TOPIC: CORROBORATION

character or credit of the constable by showing

The general rule is that a courts decision may be properly

that he had acted improperly in the trial of the

based on the evidence of a single witness. However, in

previous case. The fact that the witness may

criminal proceedings the law of evidence recognises two

have acted improperly on that occasion was

exceptions to this rule:

Offences requiring corroboration; and
Suspect witnesses

quite irrelevant to the issue before the court. He

had denied the suggestion of improper conduct
which had been made to him and his answers

Definition of corroboration: The word corroboration means

were conclusive of the matter. The evidence

support / strengthen in a material/ particular way; to strengthen

which it was sought to adduce was therefore

or support with other evidence; make more certain .

irrelevant and inadmissible and was rightly

The general rule is that in both civil and criminal cases the

excluded.

court may act on the testimony of a single witness . There are

Appeal dismissed.

some special cases in which corroboration is required either by

law or by rules of practice.

Re-examination
Leading questions may not be put in re-examination just as in

In cases in former category, if there is no such corroboration,

examination in chief . In cross-examination it is better to use

then the court cannot act upon the evidence of the witness who

leading questions . The purpose of re-examination is to seek or

requires corroboration. However in the latter (rules of practice)

a judge is required to warn the jury of the dangers of acting on
162

Law of Evidence notes compiled by Yvette Brown 2010-2011

uncorroborated evidence of a particular type of witness, but

indecent assault contrary to s 14(1)a of the

having given the warning they may nevertheless act upon the

Sexual Offences Act 1956. Each of the three

evidence where they are satisfied that it is true.

counts related to a separate occasion. V, a girl

aged 12, was the complainant in each case. V

1st category : where corroboration is required by law, the case

gave evidence on oath against the appellant.

must be withdrawn from the jury if there is no corroboration

There was no evidence corroborating that of V

but where required by rules of practice , it may be left to the

in relation to the first two counts, but V's sister

jury with a warning.

J, who was aged nine, and who had been in bed

Main statutes : Treason and Felony Legislation , Perjury Act,

with V at the time of the alleged assault, gave

Road Traffic Act (speeding on opinion evidence of police must

unsworn evidence, under s 38b of the Children

be corroborated but not really used because of speed gun.

and Young Persons Act 1933, in support of V's

Main statutes is in relation to unsworn evidence of children:

evidence in relation to the third count. The trial

Section 2 of the Child Care and Protection Act allows

judge directed the jury that it would be

reception of unsworn evidence, provided that, that evidence is

dangerous for them to convict on V's evidence

corroborated by other material evidence implicating the

alone unless it was confirmed or corroborated.

accused. The general rule is that witnesses who themselves

He further directed them that the evidence of an

require corroboration can corroborate each other, however

unsworn child could, in law, amount to

where unsworn evidence is received pursuant to statute that

corroboration of evidence given on oath by

must be corroborated by other material evidence admitted other

another child. The jury acquitted the appellant

than by virtue of the statute. DPP v Hester [1972] 3 All ER

on the first two counts but convicted him on the

1056.

third. The Court of Appeal ([1972] 2 All ER

DPP v Hester [1972] 3 All ER 1056: The

1020) allowed his appeal holding that the judge

appellant was charged on three counts of

163

Law of Evidence notes compiled by Yvette Brown 2010-2011

had

misdirected

the

jury

because

the

ie evidence admitted otherwise than by virtue of

uncorroborated evidence of V could not be

s 38; accordingly unsworn evidence could not,

treated as corroborating the unsworn evidence

for the purpose of the proviso to s 38, be

of J and J's evidence was therefore inadmissible

corroborated by other unsworn evidence but

under the proviso to s 38(1) of the 1933 Act.

could be corroborated by evidence which, being

The Crown appealed.

sworn, was admissible otherwise than by virtue

of s 38. It followed that the evidence of V, being

Section 14(1), so far as material, provides:

sworn

'It is an offence for a person to make an

could

be

treated

as

corroborating the unsworn evidence of J and,

indecent assault on a woman.'

b

evidence,

therefore,

J's

unsworn

evidence,

being

Section 38(1) is set out at p 1059 b to e, post

admissible under s 38, could be treated as

Held (i) There was no general rule against

corroborating V's evidence (see p 1061 f to h, p

mutual corroboration; accordingly evidence that

1063 j to p 1064 a and g, p 1065 b, p

needed to be corroborated could be corroborated

1066 d and e,

by evidence which itself needed to be

1068 e and f, p 1069 f h and j, p 1070 c, p

corroborated so that each of two witnesses

1071 e

might corroborate the other. On the true

1077 e and j to p 1078 b to d, post).

construction of the proviso to s 38(1) of the

1933 Act, however, the unsworn evidence of

Campbell [1956] 2 All ER 272 approved.

one or more children admitted by virtue of s 38

h and j,

Coyle [1926]

1067 d and g to j,
p

1074 f to j and

NI

208

and R

p
p

R v Manser (1934) 25 Cr App Rep 18 overruled.

on behalf of the prosecution, had to be

corroborated by 'some other material evidence',
164

Law of Evidence notes compiled by Yvette Brown 2010-2011

(ii) The Crown's appeal would, however, be

b) Evidence of accomplices:- In relation to accomplices,

dismissed, since, in the circumstances of the

the term accomplices excludes persons who are actually

case, and in particular in the absence of any

participants in crime charged whether as principals or

direction on the danger of convicting on the

accessories before or after the fact.

evidence of children of the ages of V and J, it

Receivers also come under accomplices in relation to

would be unsafe and unsatisfactory to allow the

persons charged with actual stealing of goods . Parties

conviction to stand .

to other crimes alleged to have been committed by the

Decision of the Court of Appeal sub nom R v

accused where evidence of such other crimes is

Hester [1972] 2 All ER 1020 affirmed on other

admissible in relation to the current charge against him.

grounds.

Decision whether or not a particular witness to be

treated as accomplice is jurys decision . Jury to be

nd

2 category
2nd category where required by rules of practice , required in

directed that if they consider witness to in fact be an

accomplice, they should bear in mind , it is dangerous

three clear cases:

a) Sworn evidence of children
b) Evidence of accomplices
c) Matrimonial causes

to act on his evidence without corroboration. See

Davies v DPP [1954] 1 All ER 507, also see R v
Cheema [1994] 1 All ER 639.

a) Sworn evidence of children:-The jury must be warned

Davies v DPP [1954] 1 All ER 507: In July, 1953, a

of dangers of acting upon that kind of evidence without

number of youths, including the appellant, attacked

cooperation but may also be told that notwithstanding

four other youths, including B. During the attack a

the warning if they believe the evidence then they may

knife was used and subsequently B died of wounds.

act upon it (also applies to accomplices).

The appellant and five others, including L, were

indicted for the murder of B, but at the trial the
165

Law of Evidence notes compiled by Yvette Brown 2010-2011

Crown offered no evidence against L and three

of the Criminal Appeal Act, 1907; a person called as

others, and the jury returned a formal verdict of

witness for the prosecution was to be treated as an

Not Guilty of murder in respect of them. At the

accomplice if he was particeps criminis in respect of

trial of the appellant and the fifth youth the jury

the actual crime charged in the case of a felony; L,

disagreed. Later no evidence was offered against the

if he was to be an accomplice at all, had to be an

fifth youth, and he was found Not Guilty of

accomplice to the crime of murder, and, as there

murder. At the second trial of the appellant L was

was no evidence that L knew that any of his

called as a witness for the prosecution. In his

companions had a knife, he was not an accomplice

summing-up the trial judge did not warn the jury

in a crime which consisted in its felonious use; and,

that L's evidence was, or should be treated as, the

therefore, it was not necessary for the trial judge to

evidence of an accomplice. Held In a criminal

give a warning to the jury.

trial, where a person who was an accomplice gave

evidence on behalf of the prosecution, it was the

R v Cheema [1994] 1 All ER 639: The appellant

duty of the judge to warn the jury that, although

was alleged to have entered into a plot with her son,

they might convict on his evidence, it was

K, and two other men, M and N, to murder her

dangerous to do so unless it was corroborated; this

husband for his wealth. The husband was shot by N

rule, although a rule of practice, now had the force

at his shop but survived. However, he was later

of a rule of law and where the judge failed to warn

murdered by N on the day he was discharged from

the jury in accordance with it, the conviction would

hospital. M and N were tried separately from and

be quashed, even if, in fact, there was ample

before the appellant and K and either pleaded guilty

corroboration of the evidence of the accomplice,

to or were convicted of both attempted murder and

unless the appellate court could the proviso to s 4(1)

murder. At the trial of the appellant and K the

prosecution case depended primarily on M's
166

Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence, while the case against the appellant also

c j to p 649 a and p 650 j, post); R v Barnes, R v

depended on the evidence which K gave in his own

Richards [1940]

All

defence. The appellant was convicted of both

Knowlden (1981)

77

Cr

attempted murder and murder. She appealed on the

Loveridge (1982) 76 Cr App R 125 and R v

grounds that in respect of K's evidence the judge

Mills[1983]

ought to have given the jury the full corroboration

Prater [1960] 1 All ER 298, R v Stannard (1962)

warning appropriate to the evidence of an

[1964] 1 All ER 34 and R v Russell (1968) 52 Cr

accomplice and that since K was in effect an

App R 147 considered; R v Barrow (1934) 24 Cr

accomplice he could not corroborate the evidence of

App R 141, R v Garland (note) (1943) 29 Cr App R

his accomplice M. Held The appeal would be

46 and R v Rudd (1948) 32 Cr App R 138 doubted.

dismissed for the following reasons (1) There

(2) Furthermore, there was no rule of law that one

was no rule of law which required a full

accomplice could not corroborate another. On the

corroboration direction in respect of a co-

facts, K was not to be treated as an accomplice, nor

defendant's evidence. All that was required when

was he to be treated as a witness requiring the judge

one defendant implicated another in evidence was

to give a full corroboration direction because it was

simply a warning to the jury of what might very

not a case of one accomplice called by the

often be obvious, namely that the defendant witness

prosecution

may have had a purpose of his own to serve. The

corroborating another accomplice called by the

judge had given just such a direction when he

prosecution. Instead, K and M had had no motive or

warned the jury that K might have had an axe to

opportunity to concoct a story together and had

grind in giving the evidence he did against the

different interests to serve. Accordingly, the judge

appellant in his own defence (see p 647 j to p 648 a

had been entitled to direct the jury that K's evidence

167

Crim

being

LR

ER
App
210

treated

229, R
R

94, R

followed; R

as

capable

v
v
v

of

Law of Evidence notes compiled by Yvette Brown 2010-2011

was capable of corroborating M's evidence (see p

M was made its managing director. M

649 f

arranged with the appellant, who had a

j and

650 d

j,

post); DPP

Kilbourne [1973] 1 All ER 440 applied.

double glazing business, S Ltd, that C

Ltd would provide some of the finance

R v Beck [1982] 1 All ER 807 held that where

for S Ltd. Following a television

witness who is not an accomplice nevertheless has

programme, which was highly critical of

an interest to serve, theres no general rule requiring

the trading activities of S Ltd and C Ltd,

a warning on corroboration from the judge.

the American owners of F Ltd asked the

However the trial judge is under a duty to advise the

company's auditor to carry out a detailed

jury to proceed with caution , where there is

investigation which revealed that C Ltd

material to suggest that witnesses evidence might be

tainted by improper motive

was incurring a considerable loss on its

though strength of

business with S Ltd. After speaking to

warning varies from cases to cases. E.g. robbery

the directors of F Ltd, the auditor made a

first two charged. Witness calls three (3) names,

claim on F Ltd's insurers in respect of

Johnny, David and Paul . Paul was to give evidence

the loss. M and the appellant were

for crown , warning see R v Beck p13, see

charged with conspiracy to defraud C

Belizean case Tillet v R (1995) 55 WIR 104 esp

Ltd and F Ltd by falsely representing

109

that sums of money were payable by C

Ltd to S Ltd and by making false entries

R v Beck [1982] 1 All ER 807 : F Ltd,

in the accounts of C Ltd. Both pleaded

an American-owned company, set up a

not guilty but, unknown to the jury,

company in England, C Ltd, to supply

shortly after the trial began M changed

money to finance home improvements.

168

Law of Evidence notes compiled by Yvette Brown 2010-2011

his plead to guilty. He admitted that he

if any, to be attached to it. He also

and the appellant had been operating a

pointed out to the jury that M was an

dishonest system but testified that he had

accomplice and warned them of the

been too frightened to tell F Ltd's staff

danger of acting on his uncorroborated

about it. In his defence the appellant

evidence.

contended that F Ltd must have known

corroboration

that the system was being operated

evidence which he thought was capable

because it had been done quite openly.

of amounting to corroboration. The

The directors of F Ltd, when called as

appellant was convicted. He appealed,

witnesses, denied any knowledge of it.

contending (i) that although the directors

The auditor, when cross-examined, said

of F Ltd could not be regarded as

that he had understood from the directors

accomplices or potential accomplices as

of F Ltd at the time of the insurance

regards the crime charged, the judge

claim that they did not know about the

should have warned the jury of the

operation of the dishonest system. The

danger of acting on their uncorroborated

appellant alleged that they had lied to the

evidence because they had had a

auditor and were accordingly unreliable

substantial purpose of their own to serve

witnesses. In his summing up the judge

by giving false evidence, namely to

advised the jury that, in view of the

cover up false representations made or

appellant's allegation, they should pay

acceded to by them in the insurance

particular care and attention to the

claim, (ii) that evidence was only

evidence of the directors and the weight,

capable of amounting to corroboration if,

169

The
and

judge
pointed

defined
out

the

Law of Evidence notes compiled by Yvette Brown 2010-2011

and so far as, it directly corroborated the

which was the subject matter of the trial.

evidence given by an accomplice, so

It followed that, as there was no

that, if on a particular aspect of the case

suggestion that the directors of F Ltd

an

nothing

were accomplices of the appellant, the

other

judge's direction in respect of their

evidence on that aspect of the case

evidence was correct . (2) Corroborative

(particularly if it was inconsistent with

evidence need not relate to particular

what the accomplice had said) was

incidents spoken to by a 'suspect'

incapable of amounting to corroboration

witness. It was merely independent

however strongly it indicated that the

testimony which confirmed in some

accused was guilty, and (iii) that the

material particular not only the evidence

judge had misdirected the jury about

that a crime had been committed but also

what could amount to corroboration.

that the defendant had committed it.

accomplice

incriminating

the

said
accused,

Since there were no grounds for

Held (1) Although a judge was obliged

criticising the judge's direction as to the

to advise a jury to proceed with caution

matters

where there was material to suggest that

which

were

capable

of

amounting to corroboration, the appeal

a witness's evidence might be tainted by

would be dismissed.

an improper motive, he was not bound to

give an 'accomplice warning' in respect

Tillett (Dean) v R (1999) 55 WIR 104 :

of that witness's testimony unless there

Two persons entered a clothes shop. The

were grounds for believing that he was

first left the shop with some clothes

in some way involved in the crime

170

Law of Evidence notes compiled by Yvette Brown 2010-2011

which they had selected, and the second

was convicted of murder and his appeal

produced a gun and held up one of the

to the Court of Appeal was dismissed.

assistants. The second was allowed to

On further appeal to the Privy Council

leave the shop without paying. As they

on the grounds (inter alia) that the

left, they were approached by a man

witness should not have been called to

with a gun; the first dropped the clothes

give evidence as he was himself

and made his escape. In the course of an

awaiting trial for the robbery and no

incident the second person shot the man

direction as to accomplice evidence had

with the gun. The appellant was charged

been

with murder. The first person (who was

Held, advising

himself charged with robbery) was

allowed, (1) that although it was

called as a witness. He claimed that the

desirable that a prosecution witness

appellant

person

should not have an interest of his own to

involved with the robbery and that he

serve, the existence of such an interest

(the witness) knew him well; they had

did not in itself preclude the witness

gone to the shop together, but the

from giving evidence, provided that the

witness was not part of any plan to rob

trial judge gave due warning to the jury

or to kill and had not known that the

that, in view of such interest, the

second person had a gun. The appellant

evidence of the witness should be

denied that he knew the witness, denied

viewed with particular care.(2) That the

involvement with the incident and put

witness not having been charged with

forward an alibi defence. The appellant

the same offence as the appellant was

was

the

second

171

given

by
that

the
the

trial

judge,

appeal

be

Law of Evidence notes compiled by Yvette Brown 2010-2011

not an accomplice; accordingly, the trial

In matrimonial causes no longer applicable because we now

judge was not required to warn the jury

have no fault divorce. Alli v Alli [1965] 3 All ER 480 says in

as to the need for corroboration of the

matrimonial cases courts usually look for corroboration as

evidence of an accomplice (cf. section

matter of practice and will therefore be required to give

90(4) of the Evidence Ordinance), but he

warning as to dangers of acting on such without corroboration .

should nevertheless have warned the

Alli v Alli [1965]

jury that the witness had an interest to

corroborative evidence of alleged matrimonial offences

serve and that they should exercise

the authorities justify the following rules, applicable in

caution before accepting his evidence;

the

failure

to

give

such

3 All ER 480 : In regard to

proceedings in courts of summary jurisdiction and in

warning

the High Court(i) that where a matrimonial offence is

constituted a material irregularity in the

alleged, the court will look for corroboration of the

trial.

complainant's evidence; and (ii) that the court will

R v Beck (1981) 74 Cr App Rep 221

normally, before finding a matrimonial offence proved,

and R v Witts and Witts [1991] Crim LR

require such corroboration if, on the complainant's own

562 applied

evidence, it is available. These are rules of practice

only, not of law. They spring from the gravity of the

Sworn evidence of children

No fixed age at which warning becomes unnecessary, it is a

consequences of proof in a matrimonial offence; and

from the fact that experience has shown the risk of a

matter for judges discretion based on his assessment of the

miscarriage of justice in acting on the uncorroborated

particular child witness. Authorities say judge leave that to the

testimony of a spouse in this class of case. It is,

jury as well R v Morgan [1978] 3 All ER 13

nevertheless, open to a court to act on the

rd

3 exception
Matrimonial causes

uncorroborated evidence of a spouse if the court is not

172

Law of Evidence notes compiled by Yvette Brown 2010-2011

in doubt where the truth lies . In cases where sexual

evidence from the wife and the husband only, the

misconduct is alleged and those where the evidence of

justices found for the wife on both allegations. Their

adultery is that of a willing participant, an appellate

reasons did not refer to the need for, or desirability of,

court will intervene unless the trial court has expressly

corroboration. Counsel for the husband had reminded

warned itself of the danger of acting on uncorroborated

the justices before they retired that the wife's evidence

evidence; but in other classes of case the absence of an

was uncorroborated. Held In the circumstances the

express indication that the desirability of corroboration

absence of reference in the justices' reasons to the

was in mind will not of itself call for the intervention of

desirability of corroboration was not sufficient reason

the appellate court, though such absence may, together

to set aside their adjudication .

with other matters, convince the appellate court that the

Appeal dismissed.

trial court must have proceeded oblivious of the rules of

practice set out at letter c, above, and that it would not
be safe to let the decision stand .

There are now three established categories

Joseph v Joseph ([1915] P 122) explained.

Important to note that the categories are not closed and in R v

A wife brought proceedings before justices against her

Spencer [1986] 2 All ER 928 held by HL that where crowns

husband, alleging desertion and wilful neglect to

evidence consists solely of evidence of a witness who though

provide reasonable maintenance for her and for their

not within the established categories

child. At the hearing the wife applied for an

nevertheless fulfilled analogous criteria judge required to give

adjournment to enable a subpoena to be served on a

suitable warning to jury e.g. in Spencer with the prisoner from

witness who, she hoped, could give corroborative

mental institution.

evidence to support her case. The husband opposed, and

the justices refused, the application. Having heard
173

of suspect witness

Law of Evidence notes compiled by Yvette Brown 2010-2011

There was up until recently (2002-2003) a 4 th category of case ,

Next step in removal of offensive and patronizing rule to

in which corroboration was required by rules of practice that is

women (view of the 90s) was the abolition by statute in

evidence of complainant in sexual cases.

England of the mandatory requirement for a warning in sexual

cases by the Criminal , Justice and Public Order Act 1994

First sign of departure from traditional position came in R v

(English Act). 1998 amendment to Evidence Act Belize,

Chance 1988 QB 932 where court of appeal in England held

made requirement to warn discretionary section 92(3a) Belize.

question of whether or not warning should be given , and if so

In 2002 Gilbert v R (2002) 61 WIR 174 held that requirement

in what terms depended upon the issues arising from the

of mandatory warning to jury in sexual cases should no longer

evidence in the case. In case such as Chance itself, where

apply and that the question of what warning if any was

defence was one of alibi and there was clear evidence that the

required in a particular case was a matter for the judges

complainant had been raped , there was not any need for

discretion based on the facts of the particular case. The JCPC

general warning on corroboration separate from identity.

went on to say that the summing in all cases should be tailored/

Date: 18 February 2011 Morning

adapted to actual issues raised in the case, as in Gilbert itself

TOPIC: CORROBORATION CONTINUED

where the only real issue was identification . Gilbert is the law
judge not required to give two separate warnings in case where

Pivotte v R (1995) 50 WIR 114 see page 118 of judgement ,

identification is the issue.

just for the statement of the old rule. Also recall Chance case.
Pivotte (Anthony) v R - (1995) 50 WIR 114:

Gilbert v R (2002) 61 WIR 174: The long-

In all sexual cases, including those where

standing rule of practice requiring the trial judge

identification is the main issue, juries should be

to give the jury a specific direction and warning

given a warning that it is dangerous to convict

in respect of the evidence of the complainant in

on

the case of a sexual offence to the effect that it

the

uncorroborated

evidence

of

the

complainant.

would be
174

dangerous

to convict on the

Law of Evidence notes compiled by Yvette Brown 2010-2011

uncorroborated evidence of the complainant

a term of art but is ordinary word bearing dictionary meanings

alone was based on a discredited belief and led

follows from that that in directing jury judge need not use the

to inappropriate and indiscriminate directions

word at all, as long as its ordinary meaning is conveyed. See R

being given which confused juries, created

v Baskerville [1916] 2 KB 658 see Reading CJ. Independent

unfairness as between the prosecution and the

testimony tending to connect accused with the crime charged.

defence, and undermined the safety of juries'

Special cases of corroboration

Usually looking to see if other witness says something .

verdicts.

Physical condition of the complainant: where a teenage girl

Accordingly, the rule of practice which now best

goes with school group to Hope Gardens in uniform. Alleges

fulfils the needs of fairness and safety is that the

rape and comes home dishevelled with grass on uniform etc .

trial judge in a sexual case is not under a

Can the physical evidence corroborate ?... and remember

mandatory duty to warn the jury that the

evidence

of

the

complainant

corroboration is required to be independent of the person

requires

requiring corroboration. Previous complaints and other

corroboration. The judge should adapt the

statements made by that person cannot amount to corroboration

summing-up to the actual issues raised by the

however physical condition of a witness may be relevant and in

evidence given at the trial (for example, as in

exceptional circumstances may amount to corroboration in a

this case, identification of the accused) and it

particular case. See Redpath [1962] 46 Cr App R 319.

falls within the judge's discretion to determine

Evidence of the defendant himself

Can anything said by the defendant amount to corroboration of

what, if any, warning is appropriate in respect of

any witness in any kind of case.

what complainant has said . If girl says man raped her, man is
her neighbour and her parents confront him immediately if he

The word corroboration has no special legal meaning . Means

says consent, that is a previous consistent statement, but with

no more than what dictionary says to support / bolster. It is not

175

Law of Evidence notes compiled by Yvette Brown 2010-2011

regard to the girl evidence , does that amount to corroboration

It has long been established that a proven false statement by the

of what the girl said. In a sense yes. Corroborates that sex

defendant may corroborate the case against him. Leading

foreplay now we have to tool to see whether consent or not.

authority is Lucas [1981] 2 All ER 1008 , must read case.

The defendants admission in court, and outside of court , may

Discussion on old controversy about whether lie told in or out

corroborate the case against him as in case of R v Rolfe

of court. The case says it does not matter, the principle is the

[1952] 36 Cr App Report 4 held that admissible indecent

same. Similar considerations apply . held in Lucas: proved lies

exposure by accused could provide some corroboration of her

may corroborate so long as they satisfy the following criteria:

a. Must be deliberate lie (if the jury believes he made a

story that he indecently

assaulted her while they were

mistake it is not a lie).

b. Must relate to a material issue in the case (if evidence is

travelling alone together in a train compartment. If he says I

exposed myself then he is accepting that some type of
indecency occurred. In paternity cases if man says yes he had

that he is 32 and he is 38, so what ?).

c. Motive for lie must be realization of guilt and fear of

sex with her but it is not his child that, then admitting the sex

truth bearing in mind that there may be other reasons

amounts to some corroboration.

for lying.
d. Statement must be clearly shown to be a lie either by

Lies - statements untrue told by the defendant

Lies - statements untrue told by the defendant e.g. of a girl

independent evidence or by admission of the defendant

himself. Books refer to LUCAS WARNING- tell the

who says neighbour raped her . Her parents confronted the

jury there may be other motives for lying

neighbour and he denies even seeing her. He is charged. At trial

he changes and says he did have sex with her but she

Affirmation proceedings Aspects of Jamaican Law

consented. Can the fact that he lied be corroboration? Be

and Practice: 1981 West Indian Law Journal p 17,

careful! He probably was in fear when he told the lie,

see

understandably at the time. Fear maybe his parents were there,

requirement Article by Justice Morrison .

that is why you cant just tell jury his lie is corroboration.
176

22-23

of

discussion

of

corroboration

Law of Evidence notes compiled by Yvette Brown 2010-2011

e. Previous misconduct (one of large remaining areas to

Tally 70% of cases in criminal court defence is mistaken

cover ) where evidence of previous misconduct

identity, or accused persons saying it was not me . History has

admissible in accordance with rules (to be discussed)

shown that there have often been cases of mistaken identity .

then such evidence may be corroborative of the

DNA has exonerated many persons for example in the 1960s

evidence in the instant case.

in England a man executed was wrongly identified. Judges

sense that in the Caribbean the defence of mistaken identity is

Lucas [1981] 2 All ER 1008: The fact that a

overused. There is a need for special rule. Judicial experience

jury may prefer an accomplice's evidence to that

has established that certain categories of evidence which are

of the defendant does not of itself provide

unreliable by nature and in respect of which, to avoid danger of

corroboration of the accomplice's otherwise

wrong conviction, special warnings and directives have to be

uncorroborated evidence. It is only if the

given by judge to jury . Over the last 35 years evidence of

accomplice's evidence is believed that there is

identification has emerged as class of its own requiring that

any necessity to look for corroboration of it. For

special warning be given to jurors on dangers of acting on

a lie told by a defendant out of court to provide

identification evidence. See Junior Reid v R [1993] 4 All ER

corroboration against him that lie must be

95 must read case. See Acknors judgement p95-97.

deliberate, it must relate to a material issue, the

motive for it must be a realisation of guilt and a

Junior Reid v R [1993] 4 All ER 95: Identification

fear of the truth, and it must be clearly shown to

evidence: Judicial experience has established that

be a lie by evidence other than that of an

there are certain categories of evidence which are, by

accomplice to be corroborated, i.e. by admission

their very nature, potentially unreliable and in respect

or by evidence from an independent witness .

of which, in order to avoid the serious danger of

TOPIC: IDENTIFICATION EVIDENCE

wrong convictions, special warnings and directions

have to be given to juries. Such categories include the
177

Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence of children who, although old enough to

understand the nature of an oath and thus competent
to give sworn evidence, may yet be so young that
their comprehension of events and of questions put to
them, or their powers of expression, may be
imperfect. In sexual cases, the victims of the alleged
offences may have a variety of motivations, some of
which may never have occurred to a jury, for giving
false evidence. An accomplice, with a purpose of his
own to serve, such as the hope of lenient punishment,
may well tend, when giving evidence for the
prosecution, to suggest that the entirety or the
majority of the blame for the crime should fall upon
the accused rather than upon himself. Yet this
possibility may again not be apparent to a jury.
Accordingly, in such cases where the inherent
unreliability of the witness might otherwise escape
the jury, the trial judge has to give the appropriate
warning and explanation of the special caution
required when considering that type of evidence.

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Date: 18 February 2011 Afternoon

own identification and who gives impressive evidence. In that

case in particular jury to be told to exercise special caution in

TOPIC: IDENTIFICATION EVIDENCE CONTINUED

approaching evidence of
Overriding concern that was behind the development was what

identification . Shend [1996] 1

All ER 511, (on appeal from Jamaica) JCPC held : fact that

Lord Widgery described as a ghastly risk of mistaken

cases in which warning can be completely dispensed with

identification particularly in case of fleeting/ sudden

would be wholly exceptional and even in cases where primary

encounters with strangers with which large number of

focus of defence is on credibility, judge should warn jury of

identification cases involved. The point is that in the majority

dangers of identification evidence even if he does so mere

of cases it is unexpected that witnesses see things in a flash.

briefly than he would ordinarily do in a case in which

Turnbull guidelines R v Turnbull [1976] 3 All ER 549 court of

identification was the single issue. Two men work in a factory,

appeal England led by Lord Widgery special 5 member panel

both well known to each other, god father to each others kids,

of CA see p 551-552.

if one is accused of murder and his mate is to give evidence , it

would be extreme for judge to give identification warning.

Where case against defendant depends wholly or substantially

on correctness of visual identification judge must warn jury of

Turnbull says that jury should ordinarily be told that one of the

special need for caution before convicting on that evidence (tell

reasons for identification warning is that there have been

the jury why the special warning is being given, also held that a

proved cases of mistaken identification. Hume case for Jamaica

mistaken witness may nevertheless be a convincing witness).

Hume 1994 99 Cr App R 279, JCPC held that summing up in

Puts identification in a special category. Have to look to see if

Jamaica could be criticised on ground that judge omitted to tell

the witnesss identification is reliable Scott v R [1989] 2 All

jury about previous cases of mistaken identification given that

ER 305 JCPC reiterated importance of judge discussing with

no history in Jamaica as there was in England of well

jury fundamental danger in identification cases of the honest

publicised miscarriages of justice arising out of cases of

but mistaken witness who is convinced of the correctness of his

mistaken identification . It would accordingly have been of no

179

Law of Evidence notes compiled by Yvette Brown 2010-2011

value to jury to be told of statement not part of their own

supporting the identification. The judge should direct

experience. Later says he has difficulty with this because

the jury on the evidence that is capable of supporting

judges seem to think they dont have identification problem in

the identification . Where therefore the appellants had

Jamaica.

been convicted wholly or substantially on evidence of

identification:- Held, that the trial of the first two

No special form of word required from judge in giving the

appellants having correctly followed the practice

caution as long as he conveys to jury , the essence of the

necessary in cases depending on identification, their

guideline.

appeals would be dismissed, but that, the practice not

R v Turnbull [1976] 3 All ER 549 ; [1977] QB 224
R v Turnbull [1977] QB 224: whenever a case against

having been followed in the trials of the third and fourth

appellants, their appeals would be allowed.

a defendant depends wholly or substantially on the

correctness of one or more identifications of the

Per curiam. In setting out guidelines the court has not

defendant, which the defence alleges to be mistaken,

used the phrase "exceptional circumstances" to describe

the direction to the jury should include a warning of the

situations in which the risk of mistaken identity is

special need for caution before convicting the defendant

reduced because the use of such a phrase is likely to

and the reasons for that caution . Further, the quality of

result in case law as to what circumstances can properly

the identification should be considered and the jury

be so described; such case law is likely to be a fetter on

should be directed to examine closely the circumstances

the administration of justice when so much depends on

in which the identification was made. Where the quality

the quality of the evidence in each case .

of the identification is good, the jury can safely be left

to assess the value of the evidence, but, where the

Scott v R [1989] 2 All ER 305: In two separate appeals

quality is poor, the case should be withdrawn from the

from Jamaica the questions arose whether a trial judge

jury unless there is other evidence capable of

in a criminal case had a discretion to refuse to admit the

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Law of Evidence notes compiled by Yvette Brown 2010-2011

sworn deposition of a witness who had died before trial

All three appellants raised an alibi defence. In each

and, if so, in what circumstances that discretion should

case, without the evidence in the deposition, there

be exercised and what direction the judge should give

would have been insufficient evidence to put any of the

on the issue of identification. In the first case the two

appellants on trial. In each case the trial judge admitted

appellants were charged with murdering a special

the depositions in evidence. In the first case the judge in

constable in a bar. The only evidence of identification

his summing up implied to the jury that the fact that the

was that contained in the deposition of a witness who

witness had picked out the appellants to the police

deposed that he had seen the appellants' faces as they

when they were amongst others at a bingo game

ran from the bar and had subsequently pointed out the

authenticated the identification itself. In the second case

appellants to the police when they were at a bingo game

the judge gave no direction on the issue of

before they were arrested. The witness died before the

identification and did not warn the jury of the danger of

trial. The appellants both gave evidence at their trial

a mistaken identification or draw their attention to the

that they had been elsewhere on the day of the shooting

circumstances in which the identification was made or

and that at the time of their arrest they had not been

to the fact that it differed from the evidence of the other

singled out by the witness. In the second case the three

eye witness. In each case the appellants were convicted.

appellants were charged with shooting dead the driver

The Court of Appeal of Jamaica refused the appellants

of a van and stealing a factory payroll which he was

leave to appeal against their convictions and they

carrying. A witness gave evidence at the preliminary

appealed to the Privy Council. Held (1) A judge in a

but was murdered before the trial. In his deposition he

criminal trial had a discretion to exclude the admission

had stated that he saw the shooting and that it had been

of a sworn deposition of a deceased witness so as to

done by the three appellants, all of whom he knew. The

ensure a fair trial, notwithstanding that the deposition

only other eye witness was unable to recognise anyone.

was relevant and admissible evidence, but that

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Law of Evidence notes compiled by Yvette Brown 2010-2011

discretion should be exercised with great restraint.

protected in the summing up. On the facts, the evidence

Provided that (a) the jury were warned that they had not

of identification contained in the depositions was not of

had the benefit of hearing the deponent's evidence

such poor quality that it would have been unsafe to

tested in cross-examination, (b) particular features of

convict on it if the jury had received the appropriate

the evidence in the deposition which conflicted with

guidance in the summing up. There were, accordingly,

other evidence and which could have been explored in

no grounds on which the trial judges could have

cross-examination were pointed out where appropriate,

exercised their discretion to exclude the admission of

(c) the appropriate warning of the danger of

the depositions . (2) Where the sole evidence of

identification evidence was given in an identification

identification connecting the defendant to the crime was

case and (d) inadmissible matters such as hearsay or

uncorroborated, the trial judge should give the jury a

matters which were prejudicial rather than probative

clear warning of the danger of a mistaken identification

were excluded from the deposition before was read to

and only in the most exceptional circumstances should

the jury, the deposition should be admitted in evidence.

a conviction based on uncorroborated identification

Neither the inability to cross-examine nor the fact that

evidence be upheld in the absence of such a warning.

the deposition contained the only evidence against the

The fact that the defendant had been picked out at an

accused nor the fact that it was identification evidence

identification parade did not obviate the need for such a

was of itself sufficient to justify the exclusion of a

warning. In the circumstances the failure of the trial

deposition. The crucial factor was the quality of the

judge in each case to give the jury the appropriate

evidence in the deposition and if the deposition

warning vitiated the convictions. It followed therefore

contained evidence of reasonable quality, even if it was

that the appeals would be allowed and the convictions

the only evidence against the accused, the deposition

quashed .

should be admitted and the interests of the accused

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Shend [1996] 1 All ER 511: The appellant was charged

appealed to the Privy Council. Held Where the

with murder. He was identified as the murderer by two

prosecution case against a defendant depended wholly

witnesses who knew him and who had seen him at

or substantially on the correctness of visual evidence of

different stages of the incident, independently in

identification or recognition, and the principal or sole

daylight at close quarters. One witness, S, testified that

means of defence was a challenge to the credibility of

she had subsequently visited the appellant in prison and

the identifying witness, there might be exceptional

that he had told her that he knew he was wrong, which

cases where the warning required to be given was

she construed as an admission of guilt. The defence

unnecessary or could be given more briefly than in a

case was that the two witnesses were deliberately lying

case where the accuracy of identification was

for political reasons, not that they were mistaken in

challenged. The cases where the warning could be

their identifications. In his summing up the trial judge

entirely dispensed with would, however, be wholly

did not give a general warning to the jury about the

exceptional, even where credibility was the sole line of

identification evidence and, in particular, did not warn

defence, and in the latter type of case the judge should

the jury of the special need for caution before

normally (and even in the exceptional case would be

convicting on such evidence or that even honest and

wise to) tell the jury in an appropriate form to consider

convincing witnesses could be mistaken. In relation to

whether they were satisfied that the witness was not

the alleged admission, the judge directed the jury that if

mistaken as to the identification. In the present case, the

they believed the evidence of S and found that what the

circumstances in which the identification took place

appellant had said to her amounted to a confession, they

were not exceptional and accordingly a warning should

were entitled to find him guilty of murder. The

have been given. However, the identification evidence

appellant was convicted and the Court of Appeal of

was exceptionally good, there was nothing to suggest

Jamaica refused his application for leave to appeal. He

that the witnesses were mistaken and the jury could

183

Law of Evidence notes compiled by Yvette Brown 2010-2011

only have understood the appellant's words at the prison

2. Beckford v R [1993] 97 Cr App R 409 makes point that

as meaning what S had understood them to mean. It

general Turnbull warning must normally be given in

followed that there had been no miscarriage of justice

recognition cases as well as in cases of identification f a

as a result of the failure to warn because the jury acting

perfect stranger. A conviction in absence of such a warning

reasonably and properly would inevitably have returned

will almost inevitably be quashed Langford and Freeman

the same verdict if they had received the appropriate

v State of Dominica (2005) 66 WIR 194 from Jamaica

warning. The appeal would therefore be dismissed .

Garnett Edwards v R (2006) 69 WIR 360.

1. The judge should direct the jury to examine closely
circumstances of the identification in case of each witness
Beckford v R [1993] 97 Cr App R 409: A

and should include consideration of the period over which

general warning on Turnbull lines is required in

the witness had the defendant under observation, state of

all identification cases whether the witness

lightening, distance at which, from which witness observed

identifies a person he recognises or a stranger.

offence being committed / whether or not defendant

Even if the sole or main issue raised by the

previously known to the witness, whether anything

defence is the credibility of the identifying

obstructing view by witness of the commission of the

witness, that is, whether his evidence is true or

offence, what description if any given by the witness to the

false as distinct from accurate or

police of the defendant. It is not enough for judge to merely

mistaken , a

general warning is none the less required.

recite the guideline to the jury he must go further and draw

jurys attention to specific items of evidence in the case

The appellants and co accused were charged

which require their consideration . Judge also required to

with murder. The deceased was shot and killed

point out to jury specific weaknesses in identification

on a main road . Only one person witnessed the

evidence .

killing . His evidence was that he recognised the

184

Law of Evidence notes compiled by Yvette Brown 2010-2011

appellant and the co-accused, all of whom were

significant evidence against the appellants

known to him. At the trial, the main issue was

meant that the convictions must be quashed.

the credibility of the identification witness. The

judge directed the jury that the identification

Langford and Freeman v State of Dominica

evidence was critical and concentrated on the

(2005) 66 WIR 194: Where identification of

demeanour of the witness and whether his

the accused by a witness is crucial to the

evidence was true or false, but gave no general

prosecution

warning

mistaken

depends on the recognition by the witness of a

identification on Turnbull lines. The appellants

person previously known to the witness, the

and co-accused were convicted of murder. The

need for a Turnbull direction is not diminished

Court of Appeal of Jamaica dismissed their

and the jury should be reminded that there is

appeals. On appeal by special leave, it being

room for mistake in such a case as well as in

contended that the judges failure to give

cases turning on the identification of a person

general warning on identification .

hitherto unknown to the witness.

Held, allowing the appeal, that since the failure

Final comments from case : The judge

to give a general warning about the dangers of

referred briefly to the relevance of a false

mistaken identification would nearly always by

alibi, when he said:

about

the

dangers

of

itself be enough to invalidate a conviction which

was

substantially

based

on

case

and

the

identification

'And even if you conclude that the

identification

alibi was false, that does not of itself

evidence, it followed that the judges failure to

entitle you to convict the accused. The

give a general warning in the absence of other

prosecution must make you sure of

185

Law of Evidence notes compiled by Yvette Brown 2010-2011

their guilt. An alibi is sometimes

cumulatively, their lordships conclude that the

invented to bolster a genuine defence.'

convictions cannot be regarded as safe. They

do not regard it as an appropriate case in

That direction is serviceable so far as it goes,

which to apply the proviso, for they could not

but it would have been more effective if it had

be sufficiently satisfied that a jury properly

expanded to some extent on the reasons which

directed would have reached the same

may underlie a false alibi, on the lines of the

conclusion.

instruction given in R v Turnbull [1977] QB

224 at 230, quoted in para [22] above.

[30] The conviction of each appellant will

therefore be quashed. In view of the length of

[29] Their lordships accordingly have reached

time which has elapsed since the incident and

the conclusion that, notwithstanding the

the weaknesses in the identification of the

judge's conscientious efforts to comply with

appellants their lordships do not consider that

Turnbull requirements, the summing-up fell

a new trial should be ordered.

short of the standard required to ensure that

the difficulties involved in the identification of
the appellants were placed before the jury

Garnett Edwards v R (2006) 69 WIR 360:

with sufficient clarity in an ordered fashion.

A witness (an off-duty police officer) to a

They would add to this the judge's failure to

shooting (who was himself shot in the same

warn the jury that they must not take account

incident but was the only eye-witness to the

of the hearsay statements recounted by Insp

event) had a good opportunity to see the

Laudat to the appellants (set out in para [13]

perpetrator at the time at close range. The

above) as evidence of the truth of those

statements.

Taking

all

these

witness had an emergency operation and

matters
186

Law of Evidence notes compiled by Yvette Brown 2010-2011

remained in hospital for 31 days, but within a

particular care was called for on the part of the

few days of the shooting made a statement

trial judge when directing the jury; although

describing the perpetrator; but the only

there was sufficient identification evidence for

clothing worn by the perpetrator which he

the case to have been left to the jury, it was

could recall was his shirt and the witness

incumbent upon the judge to set out fully the

failed to mention a conspicuous birthmark on

strengths and weaknesses of the identification

the face of the alleged perpetrator. Some two

evidence, linking the facts to the principles of

months after the event, the witness claimed to

law

have seen the perpetrator at the place where

principles, and in particular drawing attention

the shooting had occurred and alerted the

to

police, who took the alleged perpetrator into

identifying the perpetrator at the place where

custody. The witness informally identified the

the shooting had taken place had been affected

perpetrator when he visited the police station

by an association of ideas.

where he was held. No identification parade

and
the

not

merely

possibility that

rehearsing
the

those

witness

in

R v Turnbull [1977] QB 224 applied.

was arranged. The alleged perpetrator was

charged with murder and convicted. His

3. If in the judgment/ assessment of the judge, the quality of

appeal to the Court of Appeal was dismissed.

identification evidence is poor as in case of a fleeting

On further appeal to the Privy Council,

glance or an identification made in difficult circumstances,

Held, advising that the conviction was unsafe

the case should be withdrawn from the jury and a verdict of

and that the appeal should be allowed, that

acquittal directed unless there is other evidence which tends

where the prosecution case depended on the

to confirm correctness of identification . In such a case, the

identification evidence of a single witness,

judge withdraws it from jury (i.e. allows no case

187

Law of Evidence notes compiled by Yvette Brown 2010-2011

submission or does so on his his own motion/ not because

explains interplay between Galbraith and Turnbull. See

he thinks the witnesses are lying but because he considers

also court of appeal case from Jamaica Brown and

that the evidence, even if taken to be honest has a base so

McCallum v R S.C Crim App # s 92 and 93 of 2006

slender as to make any identification founded on it entirely

judgment delivered 21st Nov 2008, see para 12-36.

unreliable. E.g. lady goes to bed with her teenage daughter

Daley v R [1993] 4 All ER 86: The appellant

in bed, the lady wakes up and find at midnight that her

and another man were alleged to have broken

daughter is not in bed, the door is flung open , a man is

into the house of a shopkeeper in Jamaica at 2

seen behind her daughter with his arm around her neck.

am with the intent of forcing him to open up

The streetlight was shining in, the man says show me

his shop so that the men could rob it. The

where the money is, then the man grabs a bag and runs .

appellant was alleged to have struck the

All this takes some seconds, the mother in identifying

shopkeeper's wife to the ground and then shot

witness, said her daughter went for water and did not see

her during the break-in. Shortly afterwards,

the mans face . The mother said she saw him in the

the shopkeeper managed to escape and hid in

moment he grabbed for the bag, and that she saw his face
because the street light streamed in.

Judge

a place from where he could see the house.

says a) a

The two men left the house half an hour later

fleeting glance b) circumstances difficult, mother just

after ransacking it. The appellant was

waking up and disoriented, the judge to withdraw case from

identified

the jury. The circumstances of identification are such, that

by

the

shopkeeper

at

an

identification parade four months later and

identification is unreliable . If no other evidence confirms

was then charged with murder. At his trial the

it, that is difficult, e.g. if his drivers ;l icence fell out of his

only issue was whether the appellant was in

pocket and he left it. See Daley v R [1993] 4 All ER 86.

fact correctly identified by the shopkeeper, his

See judgment at page 94 of Lord Mustils judgment. He

evidence to that effect being uncorroborated.

188

Law of Evidence notes compiled by Yvette Brown 2010-2011

The shopkeeper had seen the men approaching

evidence.

the house, had witnessed his wife being struck

Held Although a trial judge ought not to

and shot and had observed the men in the

withdraw a case from the jury merely because

house while he was hiding but the evidence

he considered the prosecution evidence as

did not establish whether the shopkeeper had

unworthy of credit, since it was the jury's and

had sufficient opportunity to identify and

not the judge's function to assess the

recognise the appellant on the occasion of the

credibility of witnesses, the judge ought to

crime. The trial judge rejected a submission of

withdraw the case from the jury if it was

no case to answer but directed the jury that

based on identification evidence which, even

identification was 'very, very necessary', that

there

were

serious

weaknesses

in

if taken to be honest, was so slender that it

the

was unreliable and therefore not sufficient to

prosecution case from the point of view of

found a conviction. Having regard to the

identification and that in her opinion the

prosecution's

case

had

not

made

weakness of the identification evidence, the

the

case against the appellant should have been

identification clear enough but that the issue

withdrawn from the jury. The appeal would

of identification was a matter for the jury. The

therefore be allowed and the conviction

appellant was convicted. He appealed to the

quashed (see p 88 b, p 91 f, p 92 j, p 93 b c, p

Court of Appeal of Jamaica, which dismissed

94 g to j and p 95 b, post).

the appeal. The appellant appealed to the

Privy Council, contending that the judge

R v Turnbull [1976] 3 All ER 549 and R v

should have withdrawn the case from the jury

Galbraith [1981] 2 All ER 1060 considered.

because of the weakness of the identification

189

Law of Evidence notes compiled by Yvette Brown 2010-2011

Date: 25 February 2011

TOPIC:

TOPIC:

IDENTIFICATION

EVIDENCE

CONTINUED
FALSE ALIBI
False alibi arises in a case in which a defendants alibi which
he sets up collapses during the course of trial e.g. I was at
home with my girlfriend; but when the girlfriend testifies she
says, she fell asleep she does not know if he stayed the whole
night . The girlfriend having admitted that she got up to go to
the bathroom and he was not there. All this happens in front of
the jury. So care is to be taken by the judge in directing the jury
as to what support they find in the fact that they have rejected
the defendants alibi , bearing in mind that a false alibi can be
put forward for a variety of reasons.
It is only where a jury is satisfied that the only reason for
fabrication of an alibi was to deceive the court and that there
has been no other reason put forward to explain it , that, they
can treat the false alibi as leading support to the identification
evidence. See Turnbull itself at p 553. See also the case of
Mills v R [1995] 3 All ER 65. The JCPC held that where the
defendant raised an alibi defence in unsworn statement the
190

Law of Evidence notes compiled by Yvette Brown 2010-2011

judge is not required to give the jury any special direction as

Mills, from the dismissal by the Court of

regards their rejection of the alibi. The lecturer has problems

Appeal of Jamaica of their appeals against

with Mills when Turnbull directions being given to unsworn

their convictions of murder.

statements already abolished in England. The rule can only

apply to sworn statements. Caribbean judges feel England

LORD STEYN: said that the judge did not

misunderstands us. Unsworn evidence important for us to us

use the words a mistaken witness can be a

have . To say he is not entitled to the direction because his

convincing one. Counsel suggested that it

statement is unsworn is not fair.

was always incumbent on a judge to say to a

Mills v R [1995] 3 All ER 65- this citation is

jury that a mistaken witness could be a

incorrect.

convincing one.

Mills and Others v The Queen: (1995)

Their Lordships emphatically rejected that

Times, 1 March: When directing the jury with

mechanical approach to the judge's task of

regard to identification evidence the trial

summing up. R v Turnbull ((1977) QB 224)

judge was not always required to tell them that

was not a statute.

a mistaken witness could be a convincing one.

It did not require an incantation of a formula.

The Judicial Committee of the Privy Council

The judge did not need to cast his directions

(Lord Keith of Kinkel, Lord Griffiths, Lord

on identification in a set form of words.

Browne-Wilkinson, Lord Lloyd of Berwick

On the contrary, a judge had to be accorded a

and Lord Steyn) so held on February 20, in

broad discretion to express himself in his own

dismissing an appeal by the appellants, Arthur

way when he directed a jury on identification.

Mills, Garfield Mills, Julius Mills and Balvin

191

Law of Evidence notes compiled by Yvette Brown 2010-2011

All that was required of him was that he

But what is the point, it is the accused is in the dock anyway.

should comply with the sense and spirit of the

So dock identification is frowned upon.

guidance in Turnbull as restated by the Privy

The general rule where defendant is not known to the witness

Council in Reid (Junior) v The Queen ((1990)

before is that an identification parade is to be held to allow the

1 AC 363).

witness to point him out under objective circumstances.

In the present case the judge had emphasised

Identification of the defendant in the dock by a witness for the

that a perfectly honest witness could be a

first time after an incident has taken place has always been

mistaken witness. That was entirely apt to

regarded as undesirable. It is proper practice in a case where

convey to the jury that the fact that they

the defendant previously unknown to the witness. It is almost

regarded the witness as credible was not

invariable that an identification parade should be held so that a

enough. It focused their attention on the

witnesses ability to identify the defendant objectively can be

separate issue of reliability.

tested. Goldson v Mcglashen (2000) 56 WIR 444 held that

identification parade should be held in every case in which it

Copyright Times Newspapers Ltd 1995

will serve a useful purpose especially in cases which provide

dispute/ controversy e.g. nicknames country and Blacka.

Dock Identification
In a sense in every criminal trial there is dock identification

Goldson v Mcglashen (2000) 56 WIR 444: In

because witnesses are asked do you see the the man here

cases of disputed identification, an identification

today?. Note that we are talking about situation where an

parade ought to be held where it would serve a

incident takes place , there is no identification parade, and the

useful purpose, and this is particularly so in

witness goes to trial. The witness is then asked , do u see him

capital cases (no useful purpose would be

here

served if it is accepted, or is incapable of serious

today ? and the witness points out the accused.

dispute, that the accused is known to the

192

Law of Evidence notes compiled by Yvette Brown 2010-2011

identification witness). Nevertheless where

at paragraph 9-12 judgement of Lord Rodgers. See also

following a dock identification the accused

Pipersbaugh and Robatean v R (2008) 72 WIR 108 it

makes no request for an identification parade

reiterates the point that, fact of dock identification does not

and the issue of identification turns on the

necessarily make evidence inadmissible but imposes a

credibility of the identification witness, the

special duty on the trial judge to give a special warning to

failure to hold such parade does not necessarily

the jury as to dangers of it. If the judge fails to give the

result in a serious miscarriage of justice,

warning it may provide grounds for an appeal, and the

provided that the trial judge adequately directs

court could would allow an appeal and order retrial or the

the jury.

court of appeal may acquit the man outright or where the

evidence against him is so overwhelming that the
defendant held to be properly convicted anyway.

The question is what happens if no identification parade

held when considered that one ought to have been held ?

Pop (Aurelio) v R (2003) 62 WIR 18: A

The rule is - the fact that an identification parade is held

murder was committed in July 1995 and,

and the witness identifies the defendant for the first time in

following a statement given by an eye-witness

court,

witnesses evidence

in December 1995 in which the appellant had

inadmissible, but the jury should be told that it is normal

been named as the gunman, a warrant was

and proper practice for identification parade to be held in

issued for the arrest of the appellant. The

the circumstances. The judge should warn them of dangers

appellant was taken into custody and charged

of Dock identification and should also point out potential

with the murder in August 1998. Contrary to

advantages of an inconclusive parade to the defendant (if

practice in Belize, no identification parade

he is not identified in the parade he could go free). See

was held and in consequence the identification

Pop (Aurelio) v R (2003) 62 WIR 18 and look particularly

of the appellant was a dock identification. At

does

not

render

the

193

Law of Evidence notes compiled by Yvette Brown 2010-2011

the appellant's trial the entire case turned on

between the statement of the witness and his

identification. The eye-witness gave evidence

evidence in court. The judge failed to warn the

that the incident had occurred at night and had

jury that, even though the witness claimed to

been viewed by street lighting, and the person

have recognised the appellant, they were

who had fired the shots which killed the

required to be careful as a mistaken witness

victim had been known to the witness (he said

could be a convincing witness, and failed to

in his evidence) as 'R'. In response to a leading

direct them to ask themselves the questions

question (perhaps an unfortunate slip, but one

listed in R v Turnbull. The appellant was

to which no objection was raised) by the

convicted and appealed to the Court of

prosecutor,

implication

Appeal. Although a full Turnbull warning had

acknowledged that 'R' and the appellant were

not been given to the jury, the Court of Appeal

the same person. The witness's evidence also

was satisfied that the circumstances in which

differed in certain other respects from the

the appellant was recognised by the witness

statement which he had earlier given to the

constituted 'exceptional circumstances' in

police, but he explained to the court that the

which a full Turnbull warning need not be

police had not written down what he had said

given; accordingly, the court applied the

in 1995. In the summing-up the trial judge

proviso and affirmed the conviction. On

gave the jury no direction as to the lack of an

further appeal,

the

witness

by

identification parade, nor as to the leading

Held, advising that the appeal should be

question by the prosecution resulting in the

allowed, (1) that there was nothing in the

identification of the appellant as the gunman,

circumstances of the identification evidence

and the judge minimised the differences

that marked it out as being of exceptionally

194

Law of Evidence notes compiled by Yvette Brown 2010-2011

good quality; at the time of the shooting it was

and Whylie v R (1989) 37 WIR 346, and

dark and the scene was lit by street lighting;

Shand v R (1995) 47 WIR 346, applied.

the appellant had been identified by a single

Freemantle

eye-witness, the reliability of whose account

v R

(1994) 45 WIR 312

considered.

was open to challenge by reason of the

divergences between his statement to the

(2) That although the Board was reluctant to

police and his evidence in court; there was no

differ from a local Court of Appeal on the

scientific or other material evidence to

application of the proviso, in the present case

corroborate the identification; the situation

the Court of Appeal had ruled that it would be

was aggravated by the failure to hold an

appropriate to apply the proviso, but had

identification parade and by the fact that the

failed to take into consideration the problems

dock identification (inherently undesirable in

caused by the failure to hold an identification

itself) had been compromised by an improper

parade; in view of this omission the Board

leading question by prosecuting counsel; and

could approach the application of the proviso

the trial judge had failed to direct the jury on

afresh and was satisfied that the appellant's

any of these matters and, accordingly, there

conviction should be quashed.

were no exceptional circumstances justifying

Reid, Dennis and Whylie v R (1989) 37 WIR

the omission of a full Turnbull direction.

346 applied.

R v Turnbull [1977] QB 224, Barnes,

Desquottes and Johnson v R, Scott and

Pipersbaugh and Robatean v R (2008) 72

Walters v R (1989) 37 WIR 330, Reid, Dennis

WIR 108 Having become suspects in relation

to the shooting on 18 June 2002 of four
195

Law of Evidence notes compiled by Yvette Brown 2010-2011

people, the names and photographs of the

murders and sentenced to death. The Court of

appellants, P and R, were published in a local

Appeal affirmed their convictions and the

newspaper. On 9 July, the ambassador of

appellants appealed against both conviction

Belize to Mexico saw two men in the hallway

and sentence to the Privy Council. The

of the embassy in Mexico City. They were the

appellants submitted that evidence by way of

appellants who had been detained by the

a dock identification was inadmissible where

Mexican

had

the witness had not previously attended an

apparently been trying to cross into the United

identification parade; and that, although the

States. The ambassador had recognised their

trial judge had warned the jury to exercise

photographs

The

caution in a case depending on identification

appellants were returned to Belize where they

evidence, he had erred in failing to warn the

were tried on four counts of murder and one

jury

of attempted murder. On advice of counsel, no

identification evidence without a previous

identity

dock

identification parade. The appellants also

identifications of the appellants were adduced

contended that the trial judge should have

at trial, 18 months after the incidents had

allowed a voir dire hearing to determine

occurred. Evidence was also adduced of a

whether the ambassador's evidence was

conversation between the ambassador and R

admissible. Held (1) The facts that no

in the embassy in which certain admissions

identification parade had been held and that

had been made by R. The trial judge admitted

the witness identified the appellant when he

that evidence without holding a voir dire

was in the dock did not make his identification

hearing. The appellants were convicted of the

evidence inadmissible. However, the trial

authorities,

from

parade

the

was

where

they

newspaper.

held.

Five

196

of

the

distinct

dangers

of

dock

Law of Evidence notes compiled by Yvette Brown 2010-2011

judge had not given the jury directions which

position in the dock positively increased the

the Board had previously prescribed in Pop v

risk of a wrong identification. Although the

R [2003] UKPC 40, 62 WIR 18. Further, a

trial judge might have bemoaned the fact that

judge did not discharge his duty to give proper

no identification parade had been held and

directions on the special dangers of a dock

pointed out the advantages of such a parade,

identification without a previous identification

he did not point out that the appellant had

parade by giving appropriate directions on the

thereby lost the potential advantage of an

approach to be adopted to eye-witness

inconclusive parade. Moreover, while giving

identification evidence in general. Though

directions on the care to be taken with

related, the issues were different and, where

identification evidence in general, the trial

they both arose, the judge had to address both.

judge did not warn the jury of the distinct and

It followed that, in the instant case, even

positive dangers of a dock identification

assuming that the trial judge had given

without the benefit of an identification parade.

adequate

the

In particular, he did not draw their attention to

identification

the risk that the witnesses might have been

evidence, that did not mean that, taken as a

influenced to make their identifications by

whole, the directions had been adequate where

seeing the appellants in the dock. Even if the

the identifications were dock identifications

trial judge's directions would have ensured

without a previous identification parade. A

that the jury appreciated that that type of

dock identification not only lacked the

identification evidence was undesirable in

safeguards

an

principle, he did not explain that the jury

accused's

would be required to approach that evidence

difficulties

Turnbull
inherent

identification

that

directions
in

were

parade,

all

offered
but

the

on

by

197

Law of Evidence notes compiled by Yvette Brown 2010-2011

with great care. In those circumstances the

allowed and the matter remitted to the Court

directions given to the jury on the dock

of Appeal with a direction to that court to

identifications had been inadequate in the case

quash the convictions and to consider whether

of both appellants . (2) Before ruling on

a retrial should be ordered .

admissibility, the trial judge should have held

Pipersbaugh important because it emphasises that doc

a voir dire in which the various issues

identification warning is a separate direction from general

surrounding the evidence of R's conversation

Turnbull warning. So not enough for trial judge to merely give

with the ambassador could have been fully

jury general Turnbull warning and leave it.

explored in evidence and in which the

Voice Identification
This is when a witness purports to identify the defendant by

appellant R could have given evidence, if he

wished. By not holding a voir dire, the trial

virtue of recognising his voice e.g. heard a distinct voice on

judge not only deprived himself of this

the phone. Two kinds of cases:

1. Witness speaks to someone on phone and says that is

potential assistance, but deprived R of the

opportunity to have the admissibility of the
evidence determined on a proper footing. The

Morrison
2. Witness involved in incident , has not been able to see

failure to conduct a voir dire was, accordingly,

defendant but hears his voice and wondering along one

prejudicial (see para [29], below). (3) In the

day and hears his voice then sees the defendant and tells

circumstances, it could not be said that, even

the police.

if properly directed, the jury would inevitably

The rule is in cases of voice identification the jury should be

have

The

given a Turnbull warning suitably adopted to take into account

convictions had accordingly to be regarded as

the fact that there may be special features of voice

unsafe and accordingly the appeals would be

identification which make it even more dangerous e.g. people

reached

the

same

verdicts.

198

Law of Evidence notes compiled by Yvette Brown 2010-2011

voices may be distorted over microphone. See two English

photograph showed that when arrested the defendant

cases R v Roberts (2000) Crim L.R. 183; R v Hersey (1998)

was wearing a shirt with buttons. She also said that she

Crim L.R. 281.

had travelled on a No. 2 bus . The defendants evidence

was that he had been on a bus, but said it was the same

R v Roberts (2000) Crim L.R. 183: A man overtook a

bus as the complainant. He denied assaulting M. he was

young Polish woman named M as she was walking

convicted and appealed against his conviction by leave

home, then stopped and pretended to be sick. She

of the single judge on the ground that the conviction

passed him, but he followed her and seized her from

was unsafe. Counsel relied on material from professor

behind, putting one hand over her mouth and grabbing

Bull of the University of Portsmouth, who had carried

her between the legs with his other hand . He told her to

out research into identification by voice.

shut up, and that he had a knife in his pocket. Her

boyfriend emerged from their address, and the man ran

Held, allowing the appeal, the judge should have

off . About three minutes later the police arrived, and M

acceded to the defendants request for an adjournment.

was driven around the area. The defendant was stopped

Professor

nearby and was identified by M as her assailant. At the

identification

defendants trial for indecent assault it became apparent

identification, and he concluded that the warning given

that Ms identification of the defendant rested not on

to jurors should be even more stringent than that given

her description of his appearance and clothing but

in relation to visual identification . Professor Bull also

rather on his voice, when he spoke to the police

concluded that identification of a stranger by voice was

officers.

applied

especially difficult, even where there was a good

unsuccessfully for the jury to be discharged so that

opportunity to listen to the voice . In this case, M did

defence could reassess the evidence. M said that her

not have a good opportunity. On the evidence the

assailants shirt had no buttons, whereas the police

conviction could not be regarded as safe.

Counsels

for

the

defendant

199

Bulls
was

research
more

indicated
difficult

that
than

voice
visual

Law of Evidence notes compiled by Yvette Brown 2010-2011

evidence of the effect of stress on the pitch of a mans

R v Hersey (1998) Crim L.R. 281 : H was convicted

voice. The judge ruled that the evidence of the expert

of robbery. Two men wearing balaclava helmets robbed

was not admissible before the jury.

a shop. During the course of the robbery, which lasted

On appeal, it was argued (1) that the judge was wrong

15 minutes and involved a considerable amount of

to admit the evidence of the voice identification parade,

conversation from the robbers, the shop keeper, W,

(2) that the expert evidence should have been admitted,

became convinced that the voice of one of the robbers

and (3) that the judge failed to adequately deal with the

was that of H, whom he knew as a long standing

identification evidence in his summing up.

customer.

Held, dismissing the appeal:

(1) the judge was right in his exercise of his discretion

A voice identification parade was held. Eleven

volunteers and H read a passage of text drawn from a

not to exclude the evidence. It was argued that because

previous unrelated interview with H. W picked out Hs

W already knew Hs voice, his identification of it at the

voice. Two other witnesses also took part. One picked

parade was inevitable and of no positive value, but was

out the voice of a volunteer and the other was unable to

dangerous in that the jury could place excessive

identify any of the voices.

reliance on the parade identification. One of the

At trial, it was submitted that the evidence of the voice

purposes of an identification parade was to give the

identification should have been excluded under section

witness the opportunity to test his identification, and

78 of the Police and Criminal Evidence Act 1984. The

more importantly and out of fairness to the accused (as

defence called expert evidence on the voire dire . The

has been recognised by in visual identification cases) to

expert said that 12 voices was too many, that all but one

give him the opportunity to be excluded if the original

were of significantly higher pitch, and that only H read

identification was erroneous. The danger of the jury

the passage in a way which made sense. He gave

placing undue weight on the parade identification

200

Law of Evidence notes compiled by Yvette Brown 2010-2011

which could have been merely the result of Ws

identification between the defendants voice and that

previous acquaintance with H would be obvious to the

used to make ransom demands.

jury and could be dealt with both by counsel in his

(3) There was not a great deal of authority on how a

speech and by the judge in his summing up. As for the

judge should direct a jury in respect of voice

technical criticisms of the parade, the police must do

identification. A judge should direct the jury on the

the best they can in such circumstances, and a judge

basis laid down by the court of Appeal and in the

will undoubtedly rule out the evidence of an

Judicial Studies Board specimen directions in respect of

identification parade he considers unfair.

(2) As a matter of generality, in cases of voice

visual identification, but tailored for the purpose of

voice identification or recognition. That would follow,

identification there will undoubtedly be cases calling

suitably adapted, the guidelines in Turnbull (1976) 63

for the assistance of an expert and others in which the

Cr.App.R 132. It was vital that the judge spelt out the

issues are within the competence of the jury. It was

risk of mistaken identification, and the reason why a

important that there should not be a proliferation of

witness may be mistaken, and dealt with strengths and

expert evidence. In this case, the matters put forward by

weaknesses in the case before him. In this case, the

the expert were all matters which would have been

judge dealt fully with the issues before him. In this

within the experience of the jury. Of the test laid down

case, the judge dealt fully with the issues in his

in Turner (1974) 60 Cr.App.R 80, it was said in

summing up.

Stockwell (1993) 97 Cr.App.R 260 that it was in each

case for the judge to decide if the issue was one on

Also see the Jamaican case of Donald Zeeks Phipps v R .

which the jury could be assisted by an expert . Robb

Zeeks was charged the with murder of two men . he has a

(1991) 93 Cr.App.R.161 was to be distinguished in

famous party which is held every Wednesday, he often would

that case the expert himself was making the

deejay. As a result many people knew his voice. He also owned

a block making factory . One Rodney was a fellow who
201

Law of Evidence notes compiled by Yvette Brown 2010-2011

worked worked with him, Rodney one of deceased was at

with Zeeks on the phone . In the instant case the judge was

home watching tv when he took a call on his cell, and then left

required to give a suitable warning.

and went next door to ask a friend to take him downtown. It

R v Frank Gibson teeth marks.

was alleged by the crown that neiether Rodney nor his friend
had been seen after they were reprimanded by Zeeks for
violating. They met Zeeks downtown who reprimanded them

Confrontation
This is a situation where identification of the defendant takes

for violating . They were to get the violator to come. Rodney

place via confrontation between the accused and the witness.

called a friend and told friend to tell the violator, Zeeks wants

This is undesirable . A lady on her way to work on Papine bus,

him. They met and went to Clues house (former MP). Clue

an unknown man grabs her bag , two days later police calls and

accused Zeeks of taking Rodney down there . Zeeks used

tells her to come to the station . She is taken to an open door

expletives to him . Clue heard Rodney in background saying

where she positively identifies the man. This is the classic bad

something . Zeeks said Yes listen to Rodney is the last unno

confrontation. Very suggestive to see the man already picked

going hear him . Earlier in the morning police got a call about

out.

a suspicious fire. They found two male bodies in the fire, the

On the other hand there are unavoidable confrontation . A man

were burnt by using old tyres stacked together doused with

grabs bag , she goes to police post and they take her in car to

flammable liquid . The bodies subsequently identified as

look for the man, and she sees the man on the way while she is

Rodney and the neighbour. The case against Zeeks was built on

in the car. It is generally recognised that identification by

voice identification. That is :

- Direct voice identification evidence
- Circumstantial evidence (phone calls from his phone to

confrontation is undesirable and is to be confined to rare and

exceptional cases. See R v Haughton and Rickets 1982 19
JLR 116 at p 120 -121. Also see R v Brown et al 2001 62

people )

WIR 234 at 267 per Smith, J, dont go beyond referred pages.

One of the witness said he knew Zeeks voice fromm passa

passa and Clue gave evidence he was accustomed to speaking
202

Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Haughton and Rickets 1982 19 JLR 116:

recognized the man as being one of his

The applicants were convicted in the High Court

assailants.

Division of the Gun Court on an indictment

complainant knew the man and he replied that

charging illegal possession of a firearm and

he was the man who had the gun. The applicant

robbery with aggravation. The case for the

Haughton was identified on an identification

prosecution was that on the night of January 9,

parade on March 3 by the complainant, who

1979 the home of the complainant was relieved

stated that he was the person who had removed

of a number of items, including cigarette

several items from a dresser. On January 12 the

lighters and jewellery, by two men, one of

police

whom was the applicant Ricketts, who was

recovered one of the cigarette lighters with the

armed. The complainant stated that he was able

owner's initials, which the complainant claimed

to identify the applicants, though he had never

was his. It was contended on behalf of the

seen them before, by the illumination supplied

applicants on appeal that the verdict was

by a street light outside one of the windows

unreasonable and could not be supported having

filtering through the louvers and shining in their

regard to the evidence. It was further contended

faces. A few days after this incident, he went to

on behalf of the applicant Ricketts that the trial

the Police Station to report the stealing of some

judge erred in his statement of the principle of

chairs from his verandah. When he arrived at

law which governed confrontation identification

the office there was a man whose face he was

and further failed to properly assess the

unable to see because his head was bowed. The

circumstances of the identification. During the

police officer touched the man who then lifted

complainant's testimony the trial judge asked

his head, at which point the complainant

him if, in all the circumstances, he could have

203

The

officer

enquired

if

the

visited the applicant's house and

Law of Evidence notes compiled by Yvette Brown 2010-2011

been honestly mistaken about the identity of

confrontation is not a deliberate attempt by the

either of the two men. The contention of the

police to facilitate easy identification by a

defence was that the identification of Ricketts

witness. It will always be a question of fact for

was not spontaneous.

Held: (i) that with respect to the applicant

the jury, or the judge where he sits alone, to

consider carefully all the circumstances of

Haughton, there was ample evidence of his

identification to see that there was no unfairness

identification by the complainant and further

and that the identification was obtained without

evidence of his involvement by the recovery of

prompting; in the instant case the trial judge

one of the stolen articles from his house; (ii) that

properly advised himself of the caution with

where a criminal case rests on the visual

which he should approach the question of

identification of one accused by witnesses, their

identification; however, he fell into error in

evidence should be viewed with caution and this

putting the question which he did to the

is especially so where there is no evidence of

complainant in a manner so comprehensively

prior knowledge of the accused before the

inclusive of factors which he had to determine

incident; where an identification parade is held

that he virtually abdicated his function to

as is the case where there is no prior knowledge

consider

of the accused, the conduct of the police should

all

identification

be scrutinized to ensure that the witness has

the
so

circumstances
as

to

ensure

of

the

that

the

identification was independent and cogent;

independently identified the accused on the

though the statement of the trial judge regarding

parade. Where no identification parade is held

fairness in identification was not inaccurate, but

because in the circumstances that came about,

on the evidence before him he accepted that

none was possible, again the evidence should be

there can be no gainsaying the fact that the

viewed with caution to ensure that the

204

Law of Evidence notes compiled by Yvette Brown 2010-2011

complainant did not unaided or independently

the suspect should be confronted independently

identify the applicant Ricketts.

by each witness,who should be asked 'Is this the

person?'. A failure to comply with head (i)

R v Brown et al 2001 62 WIR 234 : In an

above, however, is not necessarily fatal to a

identification case in Jamaica, where the suspect

subsequent conviction.

is well known to the identifying witness,

Next:
a)
b)
c)
d)

confrontation for the purpose of identification is

permissible, except where the suspect asks for
an identification parade. In order to ensure
fairness, any such confrontation should be
conducted

as

follows:

(i)

before

the

confrontation takes place, the identification

officer must tell the witness that the person he
saw may, or may not, be the person he is about
to confront and that if he cannot make a positive
identification he should say so; (ii) before the
confrontation takes place, the suspect or his
attorney at law must be provided with details of
the first description of the suspect given by any
witness who is to attend the confrontation; (iii)
the confrontation should take place in the
presence of the suspect's attorney at law, unless
this would cause unreasonable delay; and (iv)
205

Similar Fact Evidence

Character Evidence
Legal Professional Privilege
Opinion Evidence

Law of Evidence notes compiled by Yvette Brown 2010-2011

Date: 4 March 2011

TOPIC: SIMILAR FACT EVIDENCE
Whether and to what extent the prosecution can adduce
evidence of the accused person previous misconduct
Evidence that firstly the defendant has been guilty of
misconduct other than that for which he is charged or that he
has the disposition to commit the kind of offence charged or
crimes in general is usually inadmissible for the purpose of
showing that he is guilty of the offence for which he is charged.
If x is charged today with robbery with aggravation, the
prosecution cannot generally lead evidence outlining that he
was previously charged with robbery with aggravation last
year.
The rule is however subject to exception that such evidence
may nevertheless be accepted where particularly relevant to an
issue in the case and as such

has strong probative force

sufficient to outweigh its prejudicial effect. Ex. a serial rapist

who repeats particular aspects of behaviour in the instant case.
See the Brides in the Bath case R v Smith (1915) 11 Cr App
R 229; [1914-15] All ER 262. Defendant charged with murder
of his wife in circumstances where she was found dead in her
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Law of Evidence notes compiled by Yvette Brown 2010-2011

bath having g insured her life in the defendants favour some

committed the offence for which he is being tried. On

time before. The defendant claimed she had died as a result of

the other hand, the mere fact that the evidence adduced

an epileptic fit. Evidence admitted to show he had gone

tends to show the commission of other crimes does not

through bigamous ceremonies of marriage with two other

render it inadmissible if it be relevant to an issue before

ladies, both of whom had been found in their baths after having

the jury, and it may be so relevant if it bears upon the

insured their lives in his favour . Held that evidence was

question whether the acts alleged to constitute the crime

admissible as they had an exceptional degree of probative force

charged in the indictment were designed or accidental,

or to rebut a defence which would otherwise be open to

the accused.

See also the Privy Council case of Makin v AG of New South

Wales [1894] AC 57 p 65 Herschels judgement . A man and

On the trial of the appellants for the murder of an infant

his wife was charged with killing babies. The allegation was

the mother of the child gave evidence that the

that they adopted the babies from homes or from parents who

appellants told her that, if she would pay them 3

did not want them. They were charged with murdering a child.

pounds, they would adopt the child and bring it up as

Bodies of other young children found buried in shallow graves

their own.

in their yard.

Held: it was relevant to the issue to be tried by the jury

Makin v AG of New South Wales [1894] AC 57 : It is

that several other infants had been received by the

undoubtedly not competent for the prosecution in a

appellants from their mothers on like representations

criminal case to adduce evidence tending to show that

and on payment of a sum inadequate for the support of

the accused has been guilty of criminal acts other than

the child for more than a very limited period, and that

those covered by the indictment for the purpose of

the bodies of infants had been found buried in a manner

leading to the conclusion that the accused is a person

similar to that in which the body of the child the subject

likely from his criminal conduct or character to have

of the charge had been found in the gardens of houses

207

Law of Evidence notes compiled by Yvette Brown 2010-2011

occupied by the appellants, and, therefore, evidence of

Settlement made by M and whether the trustees could

those matters was rightly admitted at the trial.

buy an annuity without M's permission. The trial judge

in the course of his summing-up to the jury put forward

Makin v AG of New South Wales [1894] AC 57:

a new theory as to how the deceased was drowned

Under the similar fact doctrine, the prosecution was not

which had not been previously suggested by either the

permitted to adduce evidence tending to show that the

prosecution or the defence. Held: (i) as there was prim

defendant had been guilty of criminal acts other than

facie evidence that the appellant had committed the act

those covered by the indictment, for the purpose of

charged, evidence of similar acts was admissible,

leading to the conclusion that the defendant was a

including evidence of the circumstances relating to the

person who was likely from his criminal conduct or

deaths of the two women; (ii) evidence was rightly

character to have committed the offence for which he

admitted of the consultation between the appellant and

was being tried.

a solicitor, as such evidence was admissible when an,

R v Smith (1915) 11 Cr App R 229; [1914-15] All ER

accused person asked his solicitor for information

262.
The appellant was indicted for the murder of M who

which would. Show him how he could commit the

had been discovered dead in her bath after having gone

commit it: R v Cox and Railton (1) (1884) 14 QBD 153,

through a ceremony of marriage with him. At the trial

applied; (iii) it would have been better if the judge had

evidence was given that subsequently to the death of M

not put forward a new theory, but he was right in telling

two other women had died in their bathe in similar

the jury that they must come to their own conclusions

circumstances after having gone through marriage

on that theory.

offence or whether it was necessary or desirable to

ceremonies with the appellant. Evidence was also given

One of problem in this area : what is the true test of

of a consultation between the appellant and a solicitor

admissibility ? what does judge look for to decide which side

concerning, inter alia, the effect in law of a voluntary

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Law of Evidence notes compiled by Yvette Brown 2010-2011

of line it falls Boardman v DPP [1975] AC 421. Attempt

the case must point so strongly to defendants guilt that only an

made to establish systematic basis for admissibility of similar

ultra cautious jury would acquit in the face of it p 453.

fact evidence . The defendant headmaster of a boys boarding

school charged on indictment having two counts 1) attempted

Boardman v DPP [1975] AC 421: The appellant was

buggery of 16 years old boy, 2) inciting a 17 years old to

the headmaster of a school which largely catered for

commit buggery on him. Both boys in foreign language

boys up to the age of 19 from foreign countries who

school , both boys alleged they were awaken while sleeping in

wished to learn English. He was charged on two counts

the dorm and invited to the defendants quarters where they

with offences involving a 16 year old boy, S, and a 17

were invited to commit the offences . Each boy being requested

year old boy, H, both of whom were pupils at the

to play the active role. Defence was that both boys were lying.

school. Count 1 charged the appellant with buggery

Trial judge held each boys evidence in relation to offence

with S and count 2 charged him with inciting H to

concerning the other was admissible. Defendant convicted. On

commit buggery with him. The counts were tried

appeal the conviction was upheld by CA and HL . In the HL

together and both S and H gave evidence. There was no

each of the judges described the test of admissibility in various

suggestion that S and H had collaborated together to

ways , common themes? Evidence carried strong degree of

concoct a similar story. Each boy gave evidence that the

probative force derived from striking similarity between

appellant had visited the boy's dormitory in the early

evidence of each of boys. In order to be admissible therefore

hours of the morning and invited the boy to go with him

similar fact evidence must bear such striking similarity or have

to his sitting room and that the appellant had asked each

such unusual common features as to make coincidence an

boy to take the active part, while the appellant took the

affront to common sense per Lord Hailsham or per Lord Cross

passive part, in acts of buggery. In his summing-up the

evidence of similar fact taken together with other evidence in

judge pointed out to the jury that the kind of criminal

behaviour alleged against the appellant in the two
209

Law of Evidence notes compiled by Yvette Brown 2010-2011

counts was in each case of a particular, unusual kind;

the offence which was the subject of the charge

that it was not merely a straightforward case of a

common features of such an unusual nature and striking

schoolmaster indecently assaulting a pupil but that there

similarity that it would be an affront to common sense

was an 'unusual feature' in that a grown man had

to assert that the similarity was explicable on the basis

attempted to get an adolescent boy to take the male part

of coincidence. In such cases the judge had a discretion

while he himself played the passive part in acts of

to admit the evidence if he was satisfied (a) that its

buggery. On that basis the judge directed the jury that it

probative force in relation to an issue in the trial

was open to them to find in H's evidence on count 2

outweighed its prejudicial effect and (b) that there was

corroboration of S's evidence on count 1 and vice versa.

no possibility of collaboration between the witnesses

The appellant was convicted on both counts. The Court

(see

of Appeala dismissed an appeal by the appellant but

894 a to d and fto p 895 a, p 896 c to e and h, p 897 e to

certified that a question of law of general public

p 898 a, p 904 d and e, p 905 a to d, p 906 a

importance was involved, ie where on a charge

b and e to g, p 908 f, p 909 a to c, p 910 d to g, p

involving an allegation of homosexual conduct there

912 f and p 913 b d to and j, post); Makin v Attorney

was evidence that the accused was a man whose

General for New South Wales [189194] All ER Rep

homosexual proclivities took a particular form, whether

24, R v Sims [1946] 1 All ER 697 andDirector of Public

that evidence was thereby admissible even though it

Prosecutions v Killbourne [1973] 1 All ER 440 applied.

tended to show that the accused had been guilty of

(ii) The general principle relating to the admissibility of

criminal acts other than those charged. On appeal,

'similar fact' evidence was applicable to all offences.

Held (i) In exceptional cases evidence that the

Homosexual offences were not to be treated as forming

accused had been guilty of other offences was

some separate category distinct from other offences and

admissible if it showed that those offences shared with

calling for the application of special rules. In particular

210

892 g and h,

893 b to d and g,

Law of Evidence notes compiled by Yvette Brown 2010-2011

the fact that there was evidence that a person accused of

wish to adduce 'similar fact' evidence which the defence

a homosexual offence was a man whose homosexual

says is inadmissible, the question whether it is

activities took a particular form was not by itself

admissible ought, if possible, to be decided in the

sufficient automatically to render that evidence

absence of the jury at the outset of the trial and if it is

admissible (see pp 895 a to c, p 896 c, p 897 b to c, p

decided that the evidence is inadmissible and the

907 h to p 908 b, p 909 g to j, p 911 cand p 912 h, post);

accused is being charged in the same indictment with

dicta of Lord Sumner in Thompson v R [1918] AC at

offences against the other men, the charges relating to

235 and of Lord Goddard CJ in R v Sims [1946] 1 All

the different persons ought to be tried separately (see p

ER at 701 disapproved. (iii) It was doubtful whether the

910 g and h, post).

fact that a grown man had attempted to get an

Decision of the Court of Appeal, Criminal Division, sub

adolescent boy to play the active part, while he played

nom R v Boardman [1974] 2 All ER 958 affirmed.

the passive part, in acts of buggery was a sufficiently

unusual feature to justify the admission of H's evidence

Problem with Boardman is striking similarity forces you to

in relation to count 1 and S's evidence in relation to

do checklist looking or similarity hard to operate in practice .

count 2, but since there were other similarities in the

That was the situation in leading case of

two stories, in particular the appellant's nocturnal visits

ER 337, read case carefully.

R v P [1991] 3 All

to the dormitories, it could not be said that the similar

fact evidence was inadmissible or that the judge had

R v

P [1991] 3 All ER 337: The defendant was

exercised his discretion wrongly in admitting it.

charged with rape of and incest with his two daughters.

Accordingly the appeal would be dismissed .

There was evidence that he had engaged in incest over a

long period, that he had used force and threatened both

Per Lord Cross of Chelsea. Where in cases involving

girls unless they observed silence and that he had paid

accusations of homosexual offences the prosecution

for abortions for both of them. At his trial he applied for

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Law of Evidence notes compiled by Yvette Brown 2010-2011

the counts relating to each daughter to be tried

circumstances in which there was sufficient probative

separately. The trial judge refused the application and

force to overcome prejudice of evidence relating to

all charges were heard together. The defendant was

another crime to cases where there was some striking

convicted of rape and incest. He appealed to the Court

similarity between the crimes, since what had to be

of Appeal, which allowed his appeal on the ground that

assessed was both the probative force of the evidence in

there were not such striking similarities between the

question and whether the evidence of one victim was

girls' accounts of their father's behaviour towards them

sufficiently related, either by striking similarities or in

to permit the evidence of one girl properly to be

time and circumstances, to the evidence of another

admitted on the trial of the counts relating to the other.

victim about what happened to that other victim that the

The Crown appealed to the House of Lords. Held

evidence of the first victim provided strong enough

Evidence of an offence against one victim could be

support for the evidence of the second victim to make it

admitted at the trial of an allegation that the accused

just to admit it, notwithstanding the prejudicial effect of

person had committed a crime against another victim if

admitting the evidence. Since there was strong

the essential feature of the evidence which was to be

probative force to the evidence of each of the girls in

admitted was that its probative force in support of the

relation to the incidents involving the other which was

allegations was sufficiently great to make it just to

sufficient to make it just to admit that evidence, it was

admit the evidence, notwithstanding that it was

unnecessary for the charges to be tried separately. It

prejudicial to the accused in tending to show that he

followed that the appeal would be allowed and the

was guilty of another crime. Although such probative

conviction restored

force could be derived from striking similarities in the

Boardman v DPP [1974] 3 All ER 887 applied.

evidence about the manner in which the crime had been

committed, there was no justification in restricting the
212

Law of Evidence notes compiled by Yvette Brown 2010-2011

R v Inder (1977) 67 Cr App R 143, R v Clarke (1977)

gives too much effect to what is essentially only one way of

67 Cr App R 398 and R v Brooks (1990) 92 Cr App R

stating the rule. What is to be decided in every case is probative

36 overruled.

force of evidence in P and thus no single manner in which this

can be achieved.

The accused was charged with incest of his two daughters from

In civil cases, test of admissibility of similar fact evidence is

they were aged 10 and 11. There was evidence that one aborted

whether the evidence is relevant to the issues before the court .

a child for him. Charge brought when when they were adults.

More straight forward OBrien v Chief Constable of South

Bore striking similarity . Courts dilemma Boardmans test was

Wales [2005] 2 All ER 931, see judgement of Lord Phillips

striking similarity, none here. The courts below did not want to

936-949.

admit , no striking similarity HL held that the similar fact

OBrien v Chief Constable of South Wales [2005] 2 All ER

evidence to be admissible must carry strong probative force

931: The claimant was convicted of murder. Eleven years later

which it may derive from the striking similarities in the unusual

his case was referred to the Court of Appeal who allowed his

features in the evidence. In R v P although evidence did not

appeal and quashed his conviction. He began proceedings

show any striking similarities or unusual characteristics,

against the defendant chief constable for misfeasance in public

evidence held to be admissible because of strong probative

office and malicious prosecution, alleging that the police had

force. P therefore decided that the essential feature of the

acted with deliberate and flagrant impropriety in 'framing' him

evidence which makes it admissible is that its strong probative

for murder. He gave notice of his intention to adduce evidence

force in support of the allegation that must be sufficiently great

designed to demonstrate that named police officers had acted

to make it just to admit the evidence not withstanding its

with similar impropriety on other occasions. The defendant

prejudicial effect . Strong probative force may be manifested

challenged the admissibility of that evidence. The judge ruled

by striking similarity , but to restrict the principle, the cases of

that it was admissible, but that he had a discretion to exclude it

strong similarity only is to restrict its operation in ways which

as a matter of case management. He declined to exclude the

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Law of Evidence notes compiled by Yvette Brown 2010-2011

majority of the evidence. On appeal, the Court of Appeal held

rule of law in a civil suit would build into civil

that the judge's ruling on admissibility had been correct, as had

procedure an inappropriate and undesirable inflexibility.

the exercise of his discretion in not excluding the evidence, but

However, the policy considerations which had given

that he should also have admitted the evidence of the incident

rise to the complex rules of criminal evidence were

that he had excluded. The defendant appealed, contending that

considerations which a judge with the management of

similar fact evidence was only admissible in a civil suit if it

litigation would wish to keep well in mind. Similar fact

was likely to be reasonably conclusive of a primary issue in the

evidence would not necessarily, but could, carry the risk

proceedings or if it had enhanced relevance so as to have

of causing unfair prejudice; evidence of impropriety

substantial probative value.

which reflected adversely on the character of a party

could

Held The test of admissibility of similar fact evidence

risk

causing

prejudice

which

was

disproportionate to its relevance. The judge would be

in a civil suit was the test of relevance; such evidence

astute to see that the probative cogency of the evidence

was admissible if it was potentially probative of an

justified the risk of prejudice in the interests of a fair

issue in the action. The test of admissibility of similar

trial, and when considering whether to admit evidence

facts in criminal proceedings required enhanced

or permit cross examination on collateral matters, he

relevance or substantial probative value because, if the

would have regard to the need for proportionality and

evidence was not cogent, the prejudice that it would

expedition. In the instant case the evidence was

cause to the defendant could render the proceedings

potentially probative. There was no ground to interfere

unfair. The test of admissibility of evidence of bad

with the conclusions of the judge or the Court of

character that a defendant wished to adduce against a

Appeal, both of whom had expressed the principles

police witness required enhanced relevance in order to

correctly and given proper consideration to the issues.

ensure that the ambit of the trial remained manageable.

The appeal would therefore be dismissed .

The automatic application of either of those tests as a

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Law of Evidence notes compiled by Yvette Brown 2010-2011

GOOD CHARACTER EVIDENCE OF ACCUSED AS

EVIDENCE OF GUILT OR INNOCENCE
A defendant is allowed to give evidence of his good character

TOPIC: CHARACTER EVIDENCE

Four different contexts
1. The extent to which a defendant in criminal case can

as part of his defence, although the precise purpose and effect

of this has remained ill defined .

adduce evidence of his good character as part of his

Prosecution for rape, a defendant might call evidence to

defence and not merely as a matter affecting sentence

establish his reputation with ladies i.e. that he is well behaved .

after conviction . Where such evidence is admissible,

Similarly where a defendant is under a charge of theft , that

what is its potential effect?

2. The extent to which cross examination of a defendant

defendant might call evidence to show he is the treasurer of a

as to his character may be permitted and in what

church committee.

circumstances may it be permitted . Remember you can

Whatever evidence is called, what was clear was that the

cross examine an ordinary witness about previous bad

character evidence

conduct but there is a different with defendant. Covered

was required to relate to the accused

general reputation and not the witnesses view of him R v

by provision of the evidence act section 9E and F of the

Rowton (1865) [18661873] All E R 549. In the instant case a

evidence Act Jamaica.

3. Relates to relevance of defendants previous misconduct

headmaster was accused of sexual impropriety . He gave good

character evidence. The Crown called an ex student as a

when such misconduct is admissible in evidence due to

witness who stated that in my opinion he is a man capable of

rule of similar fact evidence.

4. Relevance of character of witness . e.g. on a rape charge

flagrant impropriety. The court held that the evidence ought

what is relevance of character of the complainant.

Date: 15 April 201

not to have been given .

TOPIC: CHARACTER EVIDENCE

R v Rowton (1865) [18661873] All E R 549: The

defendant in a criminal trial is entitled to give evidence
215

Law of Evidence notes compiled by Yvette Brown 2010-2011

of his good character, and when such evidence has been

prisoner's character, because he was only a boy at

given the prosecution is entitled to call rebutting

school when he knew the prisoner; but his own opinion

evidence of bad character. In both cases the evidence

and that of his brothers who were also pupils of the

must be confined to evidence of the general reputation

prisoner was that his character was that of a man

of the defendant, and evidence of particular facts to

capable of the grossest indecency.

establish his disposition or the tendency of his mind, to

Held: the answer was inadmissible, as it was in the

show his capability or incapability to commit the

nature of a statement of a particular fact.

offence charged, is inadmissible.

Per SIR ALEXANDER COCKBURN, CJ: The

Before Court the of Appeal in Queen v Vye; R v Wise, R v

negative experience of a witness to character is not to

Stephenson [1993]

be excluded. When a witness says: "I have known the

was not clear what direction a judge should give a jury in a

prisoner for a number of years and never heard

criminal case, where a defendant asserts his good character.

anything against him," that is cogent evidence of a

The case of Queen v Vye; R v Wise, R v Stephenson (1993)

man's character.

settled that question by holding two (2) things:

1. A direction as to the relevance of a defendants good

3 All E R 241 said it

Per ERLE, CJ, and WILLES, J: A witness to character

character to his credibility is to be given wherever he

is entitled to give evidence founded on his personal

has testified or made pre trial answers or statements,

experience of the prisoner's character.

and a
2. Direction as to the relevance of good character as to the

A witness called to rebut evidence of general good

likelihood of having committed an offence for which he

character of the prisoner, who was charged with

is charged is to be given whether he has testified or

committing an indecent assault, said that he knew

given a pre trial answer or statements

nothing of the opinion of the neighbourhood as to the

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Law of Evidence notes compiled by Yvette Brown 2010-2011

One is a credibility direction, the other is a propensity

tried with a co-accused of bad character. In relation to

direction.

the co-accused of bad character the judge may,

depending on the circumstances, eg how great an issue

Queen v Vye; R v Wise, R v Stephenson [1993] 3 All

has been made of character during the evidence and

E R 241: Where the credibility or propensity to commit

speeches, think it best to direct the jury that they must

an offence of a defendant of good character, ie with no

try the case on the evidence, that there was no evidence

previous convictions, is in issue in a criminal trial the

about the co-accused's character, and that they must not

trial judge should give a direction as to the relevance of

speculate and must not take the absence of information

his good character to his credibility or likelihood of

as to the co-accused's character as any evidence against

having committed the offence charged, whether or not

him. Alternatively, the judge may think it best to say

he has testified or made pre-trial answers or statements

nothing about the absence of evidence as to the co-

at trial which he relies on. It is for the trial judge in each

accused's character (see p 248 c to e h, post); R v

case to decide how directions as to character are to be

Gibson (1991) 93 Cr App R 9 not followed.

tailored to the particular circumstances. The judge may

for example, as is commonly done, indicate to the jury

Queen v Vye; R v Wise, R v Stephenson (1993) was

that good character cannot amount to a defence and,

approved by the HOL in Queen v Assizes [1995] 3 All ER

provided that he indicates the two respects in which

149 pg 156, Lord Steyns judgement - in which he explained

good character might be relevant, ie going to credibility

the rationale for character evidence. Queen v Assizes (1995)

and propensity to commit an offence, the Court of

confirm that despite ruling that good character evidence should

Appeal will be slow to criticise any qualifying remarks

be given in these cases, the judge had a residual discretion to

based on the facts of the case .

give such direction in a case where he considers it an insult to

A defendant of good character is entitled to have the

commonsense to give such a direction.

judge direct the jury on character where he is jointly

217

Law of Evidence notes compiled by Yvette Brown 2010-2011

It is clear that this is a narrowly circumscribed discretion and a

gave a propensity direction as to the relevance of the

prima facie good character direction should be given in every

first respondent's good character to his lack of

case in which defendant asserts his good character .

propensity to have committed the offence charged and

in the case of the second and third respondents gave a

Queen v Assizes [1995] 3 All ER 149 pg 156, The

credibility direction as to the relevance of their good

three respondents were charged with fraudulent evasion

character to their credibility. On appeal, the Court of

of income tax and value added tax. At their trial the first

Appeal quashed the convictions on the ground that the

respondent's defence was that he had been misled by

judge had misdirected the jury by failing to give a

one of his co-defendants. He did not give evidence but

credibility direction in the case of the first respondent

relied on his exculpatory statements in the course of

and a propensity direction in the case of the second and

interviews conducted by officers of the Customs and

third respondents. The Crown appealed to the House of

Excise in which he had made significant admissions.

Lords, contending that (i) the rule that if a defendant

The second and third respondents gave evidence in

made a mixed statement both admissions against

which they accepted that they had made false mortgage

interest and exculpatory assertions were admissible as

applications and in the case of the second respondent

evidence of the facts stated which should be left to the

that he had lied to customs officers during interview

jury to determine, was wrong, (ii) a person with no

and in the case of the third respondent that he had not

previous convictions may nevertheless lose his right to

declared his full earnings for Revenue purposes, and

a good character direction if he made admissions of

that he had allowed employees to declare substantially

other criminal behaviour, and (iii) a defendant who did

less income than they were in fact earning. All three

not testify but relied on the exculpatory parts of a mixed

respondents relied on the absence of relevant previous

statement was not entitled to a good character direction.

convictions. In the case of the first respondent the judge

Held (1) Both the inculpatory and exculpatory parts

218

Law of Evidence notes compiled by Yvette Brown 2010-2011

of a mixed statement made by a defendant were

doubt to have been guilty of serious criminal behaviour

admissible as evidence of their truth in a criminal trial.

similar to the offence charged (see p 151 b to e, p

That principle applied to all mixed statements tendered

157 c to h and p 158 c to g, post); R v Vye [1993] 3 All

by the Crown and not just to mixed statements made to

ER 241 explained. (3) On the facts, the first respondent

the police, but did not apply to whollyexculpatory and

was entitled to character directions both as to credibility

self-serving statements by a defendant, which were not

and propensity, notwithstanding that he did not testify

evidence of any fact asserted. However, where the

and had mounted a cut-throat defence against a co-

defendant did not testify, but relied on the exculpatory

defendant. The second and third respondents were also

parts of a mixed statement, the judge was entitled to

entitled to character directions both as to credibility and

comment adversely on the quality of those parts of the

propensity, notwithstanding their admissions under

statement which had not been tested by cross-

cross-examination as to misconduct. The convictions

examination R v Sharp [1988] 1 All ER 65 followed.

had therefore rightly been quashed. The appeal would

(2) A defendant of good character was prima facie

accordingly be dismissed .

entitled to character directions as to both credibility and

See the following cases:

The Jamaica Court of Appeal case of Michael Reid v Queen

lack of propensity to commit the offence charged

(unreported Supreme Court, Court of Appeal judgement Justice

irrespective of whether he testified or made pre-trial

Morrison #30 of 2007 3 April 2009)

Teeluck and John v Trinidad and Tobago (2006) 66 WIR

answers. However, the trial judge had a residual

discretion to decline to give any character directions in

319 (p329) where Lord Carswell summarised the relevant

the case of a defendant without previous convictions if

principles.
Bhola v State (2006) 66 WIR 456.
Jagdeo Singh v State (2005) 68 WIR 424.

the judge considered it an insult to common sense to

give such directions, eg where the defendant, although
he had no previous convictions, was shown beyond
219

Law of Evidence notes compiled by Yvette Brown 2010-2011

Teeluck and John v Trinidad and Tobago (2005) 66

Bhola v State (2006) 68 WIR 449: The omission of a

WIR 319 : Only in exceptional circumstances can the

'good character' direction in a summing-up in a case in

conduct of defence counsel afford a basis for a

which the accused was entitled to such is not

successful appeal against conviction. Where, however,

necessarily fatal to the fairness of a trial nor to the

at a trial for murder (involving a mandatory death

safety of a conviction (it is not true to state that such a

sentence) the prosecution case depended entirely on

direction will have value in every case in which it is

oral and written confessions, the authenticity and

appropriate to give it, and that if it is omitted in such a

reliability of which the accused strongly contested, the

case it will rarely be possible for an appellate court to

accused's credibility in making allegations against the

say that the giving of the direction could not have

police in the context of those confessions was a crucial

affected the outcome of the trial). Each case must

issue in the trial and the failure of defence counsel to

depend on its circumstances, the criterion being

bring out the accused's good character and ensure that

whether a properly directed jury would inevitably have

the judge gave a 'good character' direction constituted

convicted the accused.

such exceptional circumstances as to necessitate the

Jagdeo Singh v The State (2005) 68 WIR 424 applied.

quashing of the conviction, even though the issue of the

Bally Sheng Balson v The State of Dominica (2005) 65

conduct of defence counsel had only been raised for the

WIR

first time before the Privy Council. Thompson v

128 and Brown

R (2005)

66

WIR

238 considered. Dictum at p 329, para [33(ii)],

R (1998) 52 WIR 203, Barrow v The State (1998) 52

in Teeluck and John v The State (2005) 66 WIR

WIR 493 and dictum in Sealey and Headley v The

319 doubted.

State (2002) 61 WIR 491 at p 503, para [30] applied.

Jagdeo Singh v State (2005) 68 WIR 424: The

Prevention of Corruption Act 1987, s 3(1), provides as
220

Law of Evidence notes compiled by Yvette Brown 2010-2011

follows: 'Every person who, by himself or by or in

Smith [1960]

All

ER

256 and R

conjunction with any other person, corruptly solicits or

Harrington (2000) (unreported) 28 September, England

receives, or agrees to receive, for himself or for any

CA (Criminal Division) transcript 00/1780/X2, applied.

other person, any gift, loan, fee, reward, or advantage

In advising that the appeal against conviction should be

whatsoever, as an inducement to, or reward for, or

allowed in a case where, although the appellant had

otherwise on account of, an agent doing or forbearing to

been entitled to a conventional 'good character'

do anything in respect of any matter or transaction

direction, the trial judge had failed to give one the

whatsoever, actual or proposed, in which the State or a

Board stated that the omission of a 'good character'

public body is concerned, is guilty of an offence.'

direction on credibility is not necessarily fatal to the

fairness of the trial nor to the safety of a conviction.

In s 2 of the Act, 'agent' is defined to include 'any

Much may turn on the nature of and issues in a case,

person serving under the State or other public body or

and on the other available evidence. The ends of justice

holding a public office'; the term may therefore include

are not on the whole well served by the laying down of

a magistrate or a person acting as prosecutor.

hard, inflexible rules from which no departure may ever

On a charge of an offence under s 3(1) it is not

be tolerated. In a case where, depending on the

necessary for the prosecution to establish that the agent

circumstances, the proviso to s 44(1) of the Supreme

(or public officer) was involved in the transaction in

Court of Judicature Act might have been applicable an

question since such person did not need to be aware of

appellate tribunal should consider (by reference to

what was going on when the improper offer was made,

established authorities) whether, properly directed, the

provided that the apparent purpose of the transaction

jury would 'inevitably' or 'without doubt' have

was to affect the conduct of such a person corruptly.

convicted; unless the tribunal is so satisfied it should

quash the conviction. Woolmington v Director of Public
221

Law of Evidence notes compiled by Yvette Brown 2010-2011

Prosecutions [1935] AC 462, Stirland v Director of

open to cross examination on previous record , generally not

Public Prosecutions [1944] 2 All ER 13, R v Vye [1993]

allowed to examine as to good character but if the accused :

1. Raised it
2. Cast imputation against character of prosecutions

3 All ER 241, R v Aziz [1996] AC 41, Sealey and

Headley v The State (2002) 61 WIR 491, Teeluck and

witness
3. Give evidence against co-accused
Then the defendant is open to cross examination.

John v The State (2005) 66 WIR 319, andBrown v

R (2005) 66 WIR 238 applied.

The general rule is that all witness must speak about facts
Does it inevitably follow from a failure by the judge to give the

directly observed by them and not about inferences to be drawn

good character evidence in a case where it ought to have done

from those facts. There are also recognised exception to the

so that conviction will be quashed.

It is not in every case that the conviction will be quashed, what

rule:
1. Expert opinion evidence (The main one )
2. Character evidence of a man ( opinion evidence)
3. Non technical matter

the CA is required to do is to assess the impact that a good

Date: 15 April 2011 afternoon

character direction might have had on a jurys verdict and

TOPIC: OPINION EVIDENCE

CONTINUED

whether there is evidence in the case which suggests such a

direction would have had no impact on the verdict on appeal or

Generally a witness is to give fact of evidence perceived by

is unlikely to be sustained .
GOOD

CHARACTER

him or representation. The rule in expert witness a qualified

EVIDENCE

AND

CROSS

expert witness is permitted to state an opinion on a matter

EXAMINATION
Before 1898 the accused did not have the right to give sworn

falling within his expertise , ex scientific, medical.

evidence . The question was are you going to allow him to be

222

Law of Evidence notes compiled by Yvette Brown 2010-2011

It is clear that the experts qualification to give evidence need

professor in charge of the hospital maternity unit

not necessarily be a professional or expert, it may be expertise

identified the pregnancy as likely to be difficult and

obtained as an amateur - Queen v Silverlock [1894] 2 QB 766.

noted that a 'trial of forceps' delivery would have to be

tried before proceeding to delivery by Caesarian

Queen v Silverlock [1894] 2 QB 766.A count in an

section. Trial of forceps was a tentative procedure

indictment for obtaining a cheque by false pretences

requiring delicate handling of the baby with forceps and

charged that the defendant, by causing to be inserted in

a continuous review of the baby's progress down the

a newspaper a fraudulent advertisement [setting it out],

birth canal, with the obligation to stop traction if it

did falsely pretend to the subjects of Her Majesty the

appeared that the delivery could not proceed without

Queen that [setting out the false pretence], by means of

risk. Having examined the mother and read the

which last-mentioned false pretence he obtained from

professor's notes, the defendant embarked on a trial of

A. a cheque:- Held, that the count was good, although it

forceps delivery. He pulled on the baby six times with

did not allege that the false pretence was made to a

the forceps coincident with the mother's contractions,

particular person.

but when there was no movement on the fifth and sixth

DUTY OF AN EXPERT WITNESS

The duty of an expert witness is a duty owed to the court

pulls he decided, some 25 minutes after the

irrespective of which party has called him to give evidence .

procedure and to proceed to a Caesarian section. He

commencement of the trial of forceps, to abandon that

Whitehouse v Jordan (1981) 1 WLR 246 p256-257;

then quickly and competently delivered the plaintiff by

[1981] 1 All ER 267: The defendant, a senior hospital

Caesarian section. The plaintiff was found soon after

registrar, took charge of the plaintiff's delivery as a

the delivery to have sustained severe brain damage due

baby after the mother had been in labour for a

to asphyxia. Acting by his mother as next friend he

considerable time. The notes made by the consultant

claimed damages for negligence against the defendant

223

Law of Evidence notes compiled by Yvette Brown 2010-2011

alleging that he had pulled too long and too hard on the

report made by the consultant professor shortly after the

plaintiff's head in carrying out the trial of forceps and

delivery, from clinical notes and after discussion with

thereby caused the brain damage. At the trial the mother

the defendant, the tenor of which was that the mother

gave evidence that she was 'lifted off' the bed by the

had received correct and skilled treatment and that no

application of the forceps and although that description

blame attached to anyone for the plaintiff's condition.

of what happened was rejected by the judge as being

However, in the report the professor referred three

clinically impossible, on the suggestion of an expert

times to 'disimpaction' of the head prior to the

witness he interpreted it to mean that the forceps were

Caesarian section. At the trial the professor gave

applied with such force that she was pulled towards the

evidence that he had used that term as meaning no more

bottom of the bed in a manner inconsistent with a

than that a gentle push of the head up the birth canal

properly carried out trial of forceps. The defendant gave

was needed before proceeding to the Caesarian section.

evidence that when there was no progress on the fifth

There was no unanimity of opinion among the other

pull of the forceps he pulled once more to see if he

medical experts as to the meaning of the term 'impacted'

could ease the head past what might have been only a

or whether it meant that there had been excessive or

minimal obstruction but as there was no further

unprofessional traction with the forceps. The evidence

progress he decided to proceed to Caesarian section and

of the medical experts made it clear, however, that the

he had easily pushed the head slightly upwards to effect

amount of force to be properly used in a trial of forceps

the Caesarian section. He denied that the head was

was a matter of clinical judgment, although there

wedged or stuck prior to the Caesarian section. The

should be no attempt to pull the fetus past a bony

judge interpreted his evidence to mean that he had

obstruction, and if the head became so stuck as to cause

pulled too long and too hard, causing the head to

asphyxia excessive force had been used. The judge

become wedged or stuck. There was also in evidence a

inferred from the professor's use of the term

224

Law of Evidence notes compiled by Yvette Brown 2010-2011

'disimpacted' that the plaintiff's head had become so

negligence in law, and (ii) in any event the court was

firmly wedged or stuck in the birth canal as to indicate

entitled to, and would, reverse that finding because it

that excessive force had been used in the trial of

was based on an unjustified interpretation of the

forceps. The judge found that the brain damage

evidence. The plaintiff appealed to the House of Lords.

probably occurred during the trial of forceps. From his

Held Although the view of the trial judge (who had

interpretation of the mother's evidence, the defendant's

seen and heard the witnesses) as to the weight to be

evidence and the professor's report the judge concluded

given to their evidence was always entitled to great

that in carrying out the trial of forceps the defendant

respect, where his decision on an issue of fact was an

had pulled too long and too hard with the forceps so

inference drawn from the primary facts and depended

that the plaintiff's head had become wedged or stuck,

on the evidentiary value he gave to the witnesses'

that in so doing or in getting the head unwedged or

evidence and not on their credibility and demeanour, an

unstuck he had caused the plaintiff's asphyxia, and that

appellate court was just as well placed as the trial judge

in so using the forceps he had fallen below the standard

to determine the proper inference to be drawn and was

of skill expected from the ordinary competent specialist

and

had

therefore

been

negligent.

The

entitled to form its own opinion thereon. Since the

judge

judge's conclusion of fact that the defendant had pulled

accordingly awarded the plaintiff substantial damages.

too long and too hard with the forceps was primarily an

The defendant appealed. The Court of Appeal ([1980] 1

inference from the primary facts, no issue of credibility

All ER 650) reversed the judge's decision on the

was involved. Accordingly, his conclusion was open to

grounds that (i) if the judge's finding that the defendant

reassessment by the appellate court and it was entitled

pulled too long and too hard with the forceps during the

to find that the evidence did not justify the inference

trial of forceps was accepted, that amounted only to an

that the defendant negligently pulled too hard and too

error of clinical judgment and as such was not

long with the forceps. It followed that the Court of

225

Law of Evidence notes compiled by Yvette Brown 2010-2011

Appeal was entitled to reject the judge's finding of

professing to have the special skill of a surgeon (see p

negligence. The appeal would therefore be dismissed

276 h to p 277 c, p 281 b c and p 284 j, post); dictum of

(see p 270 g h, p 273 e to g, p 274g, p 275 a h j, p 276

McNair J in Bolam v Friern Hospita Management

a b, p 278 j, p 280 f to h, p 28 1 d to f, p 282 f to h, p

Committee[1957] 2 All ER 118 at 121 approved.

283 d to g, p 284 g h, p 285 a to e, p 286 c to e, p

Per Lord Wilbertorce and Lord Fraser. While some

287 j and p 288 f h, post).

The

Hontestroom [1927]

degree of consultation between experts and legal

AC

37 and Powell

advisers is entirely proper, it is necessary that expert

Streatham Manor Nursing Home [1935] All ER Rep

evidence presented to the court should be, and should

58 applied.

be seen to be, the independent product of the expert,

uninfluenced as to form or content by the exigencies of

Per Lord Edmund-Davies, Lord Fraser and Lord

litigation (see p 276 a b and p 284 h, post).

Russell. To say that a surgeon has committed an error of

clinical judgment is wholly ambiguous and does not

Decision of the Court of Appeal [1980] 1 All ER

indicate whether he had been negligent, for while some

650 affirmed.

errors of clinical judgment may be completely

An expert witness is competent and compellable see the cases

consistent with the due exercise of professional skill,

of Harmony Shipping v Saudi Europe Line Company

other acts or omissions in the course of exercising

[1979] 1 WLR 1380; [1979] 3 All ER 177- no property in an

clinical judgment may be so glaringly below proper

expert witness, Ikarian Reefer case [1993] 2 Lloyds Report

standards as to make a finding of negligence inevitable.

68 (p 81-82).

The test whether a surgeon has been negligent is

whether he has failed to measure up in any respect,

Harmony Shipping v Saudi Europe Line Company

whether in clinical judgment or otherwise, to the

[1979] 1 WLR 1380; [1979] 3 All ER 177: A

standard of the ordinary skilled surgeon exercising and

handwriting expert, one of only a few such experts, was

226

Law of Evidence notes compiled by Yvette Brown 2010-2011

approached by the plaintiffs in an action to advise on

voluntarily assist the defendants on matters on which he

the authenticity of a document, the genuineness of

had advised them and would use his best endeavours

which was crucial to their case. The expert advised that

not to appear for both sides.

the document was not genuine. In discussing his fee for

Held The appeal would be dismissed for the

the advice the expert stated that it was a rule of his not

following reasons

to give advice to both sides in an action. Subsequently

the expert was approached by the defendants to the

(i) The principle that no party had any property in the

action to advise them of the document's authenticity.

evidence of a witness of fact and that he could be

Not realising that he had already advised the plaintiffs

compelled by the court to give evidence applied to an

on the matter, he advised the defendants that the

expert witness. The court was therefore entitled to

document was not genuine. He later realised that he had

compel an expert witness to give evidence both of the

advised both sides and told the defendants that he could

facts he had observed and of his opinion on those facts,

accept no further instructions from them. The

subject only to any claim to legal professional privilege

defendants, who wished the expert to give evidence on

by the expert in respect of communications between

their behalf, issued a subpoena ad testificandum

him and a party's lawyers. Accordingly, on principle the

requiring him to attend and give such evidence. The

court was entitled to have before it the document in

plaintiffs applied to the trial judge to set aside the

question and the expert's opinion on it and the

subpoena but the judge ruled that the expert was a

defendants were therefore entitled to subpoena the

compellable witness and ought to give evidence as to

expert to give evidence of his opinion on the

his opinion of the document. The plaintiffs appealed,

genuineness of the document. It followed that the judge

contending that there was a contract, express or

had been right not to set aside the subpoena (see p

implied, between them and the expert that he would not

180 h j, p 181 b c e to g and j, p 182 f to h and p 184 c

d and j, post).
227

Law of Evidence notes compiled by Yvette Brown 2010-2011

(ii) Furthermore, the plaintiffs had failed to establish an

succeeded in the Court of Appeal and was awarded its

express contract in the terms alleged, for the expert's

costs both on appeal and in the court below. It

statement that it was his practice when consulted by one

recovered some of those costs under orders for security

side in a case not to assist the other side, did not amount

made before the trial, and sought to recover the

to an express contract to that effect. Nor had the

remainder from C, a person domiciled in Greece who

plaintiffs established that it was an implied term of the

was

contract to advise to them that the expert would not

Accordingly, P Ltd served a summons on C in Greece,

assist the defendants (see p 182b d and g, p 183 j, p

seeking an order pursuant to s 51a of the Supreme Court

184 a d and h j, post).

Act 1981 requiring him to pay those costs as a person

the

sole

shareholder

of

the

shipowners.

who had been involved in the direction of the action

Per Curiam. A contract by which a witness binds

and who had instituted, controlled and financed the

himself not to give evidence before the court on a

litigation. C challenged the English court's jurisdiction,

matter on which the judge could compel him to give

contending, inter alia, that such proceedings were

evidence is contrary to public policy and unenforceable

distinct and separate from the main action, and that they

(see p 182 c d and g and p 184 d, post).

could be brought against him only in Greece by virtue

of art 2b of the Convention on Jurisdiction and the

Ikarian Reefer case [1993] 2 Lloyds Report 68 (p

Enforcement of Judgments in Civil and Commercial

81-82): P Ltd was the lead hull and machine

Matters 1968 (as set out in Sch 1 to the Civil

underwriter of a vessel owned by a Panamanian

Jurisdiction and Judgments Act 1982) (the Brussels

company. The vessel grounded and caught fire, and the

Convention). The judge rejected that contention, and

owners brought a claim against the underwriters.

dismissed C's challenge to the court's jurisdiction. C

Judgment was given for the owners, but P Ltd

appealed.
228

Law of Evidence notes compiled by Yvette Brown 2010-2011

proceedings within the meaning of art 6(2) c of the

Section 51, so far as material, is set out at p 40 a to

c, post

Brussels Convention. Furthermore, the position was all

the more clear where it was alleged that the non-party

Article 2, so far as material, provides: 'Subject to

was the alter-ego of the party which had brought

the provisions of this Convention, persons domiciled in

proceedings, since in such a case the non-party would,

a Contracting State shall, whatever their nationality, be

if the allegation was proved, have submitted to the

sued in the courts of that State '

jurisdiction.

Accordingly,

the

appeal

would

be

Held The court had jurisdiction under s 51 of the

dismissed (see p 43 h j, p 44 g h, p 45 j, p 46 d to f, p

1981 Act to determine whether a non-party should be

48 e to h and p 49d to h, post).

liable to pay the costs of proceedings, even though such

a person was outside the court's territorial jurisdiction

Article 6, so far as material, provides: 'A person

domiciled in a Contracting State may also be sued

or was domiciled in another contracting state of the

(2) as a third party in an action on a warranty or

Brussels Convention. In such a case, the court would be

guarantee or in any other third party proceedings, in the

exercising its powers in the context of substantive

court seised of the original proceedings '

proceedings over which the court had jurisdiction.

Moreover, on an application against a non-party under s

Mansour v Mansour [1989] 1 FLR 418 considered.

51, that person was not being 'sued' within the meaning

Per curiam. CPR 48.2(1), which deals with the

of art 2 of the Brussels Convention since 'suing'

procedure when the court is considering exercising its

contemplated the pursuit of a substantive cause of

power to make a costs order in favour of or against a

action, not the making of orders ancillary to

non-party, may contain a lacuna where the non-party is

proceedings pending before a particular court. Even if

outside the jurisdiction. It is not clear whether the

that was wrong, the English court had jurisdiction since

appropriate course is to serve the application to join the

such an application would constitute third-party

229

Law of Evidence notes compiled by Yvette Brown 2010-2011

non-party only on the other named parties, and then

TOPIC: PRIVILEGE

serve the amended proceedings on the non-party, or

whether the application to join itself should be served

Privilege is said to exist where a witness is not obliged to

on the non-party. If, as is probable, the latter position is

answer a particular questions or to produce particular

correct, RSC Ord 11, r 9(4) and (5) will apply as they

documents. The concept of Privilege is to be distinguished

would apply to a summons under the procedure

from that of Competence and Compellability. Privilege relates

applicable

to the question of confidentiality.

before

the

CPR

came

into

effect.

Furthermore, there must at present be an inherent power

The law of privilege recognises no privilege of communication

to give leave to join a party and to give leave to serve

between between the following parties:

1. Priest and penitent
2. Physician and patient
3. Journalist and source.

him out of the jurisdiction once the hearing of the

application to join has resulted in an order for joinder .
Non expert evidence has always been subject to what is known

LEGAL PROFESSIONAL PRIVILEGE

The general rule is that communication between a lawyer and

as an ultimate witness.

his client is protected for the purposes of pending litigation,

A witness should not be asked to state an opinion. Despite the

litigation, advise to defendants . Information gained in the

old textbook rule, there is a modern tendency to relax the rule.

foregoing circumstances are not to be disclosed without

consent of client . However communication between lawyer or

See the case of DPP v ADC Chewing Gum Ltd. [1968] 1 QB

client or third party are only privilege if made for the purpose

164 Lord Parkers judgement.

of pending or contemplated litigation. There is an important

General discussion held on : Expert Evidence and the CPR.

ethical dimension.

Collect handout in the Registry.

Important to note:
230

Law of Evidence notes compiled by Yvette Brown 2010-2011

1st category lawyer and client (always privileged)

2nd category lawyer-clientsthird party ex doctor (only

more immediate than the second, they were described

privilege if made for purpose of pending or

contained statements by witnesses and was probably the

contemplated litigation)

best evidence available as to the cause of the accident.

in the affidavit as being of equal importance. The report

See the cases of : Waugh v British Railway Board [1979] 2

The plaintiff commenced an action against the board

All ER 1169, Queen v Darby Magistrate [1995] 4 All ER

under the Fatal Accidents Acts 1846 to 1959 and

526.

applied for discovery of the report to assist in preparing

and conducting her case. The board resisted discovery

Waugh v British Railway Board [1979] 2 All ER

on the ground that the report was protected by legal

1169, [1980] AC 521: The plaintiff's husband, an

professional privilege. The master ordered disclosure

employee of the British Railways Board, was killed in

but on appeal the judge reversed the order. The plaintiff

an accident while working on the railways. In

appealed to the Court of Appeal which held, on

accordance with the board's usual practice a report on

authoritya, that a report which came into existence or

the accident, called an internal enquiry report, was

was obtained for the purpose of anticipated litigation

prepared by two of the board's officers two days after

was privileged from production even though it might

the accident. The report was headed 'For the

serve some other even more important purpose, and

information of the Board's solicitor'. However, it

dismissed her appeal. The plaintiff appealed to the

appeared from an affidavit produced on behalf of the

House of Lords.

board that the report was prepared for two purposes: to

establish the cause of the accident so that appropriate

Birmingham and Midland Motor Omnibus Co Ltd v

safety measures could be taken and to enable the

London and North Western Railway Co [1913] 3 KB

board's solicitor to advise in the litigation that was

850 and Ogden v London Electric Railway Co [1933]

almost certain to ensue. Although the first purpose was

All ER Rep 896

231

Law of Evidence notes compiled by Yvette Brown 2010-2011

Held The court was faced with two competing

Co [1913] 3 KB 850, Ankin v London and North

principles, namely that all relevant evidence should be

Eastern Railway Co [1929] All ER Rep 65 and Ogden v

made available for the court and that communications

London Electric Railway Co [1933] All ER Rep

between lawyer and client should be allowed to remain

896 overruled; Grant v Downs (1976) 135 CLR 674 not

confidential and privileged. In reconciling those two

followed.

principles the public interest was, on balance, best

served by rigidly confining within narrow limits the

Queen v Darby Magistrate [1995] 4 All ER 526: On 9

privilege of lawfully withholding material or evidence

April 1978 the appellant was arrested on suspicion of

relevant to litigation. Accordingly, a document was only

murdering a 16-year-old girl. The next day he admitted

to be accorded privilege from production on the ground

being responsible for the murder and was charged. In

of legal professional privilege if the dominant purpose

October, before his trial commenced, he changed his

for which it was prepared was that of submitting it to a

story and made a statement alleging that he and his

legal advisor for advice and use in litigation. Since the

stepfather had been present when the girl was killed,

purpose of preparing the internal enquiry report for

that his stepfather had carried out the murder and that

advice and use in anticipated litigation was merely one

he had taken some part but only under duress. At his

of the purposes and not the dominant purpose for which

trial in November he was acquitted but when

it was prepared, the board's claim of privilege failed

subsequently interviewed by the police he stated that he

and the report would have to be disclosed. The appeal

alone had killed the girl. He later retracted that

would therefore be allowed .

statement and made a further statement that his

Dictum of Barwick CJ in Grant v Downs (1976) 135

stepfather had carried out the murder. In 1992 the

CLR at 677 adopted; Birmingham and Midland Motor

stepfather was arrested and charged with the murder of

Omnibus Co Ltd v London and North Western Railway

the girl. At the stepfather's committal proceedings the

232

Law of Evidence notes compiled by Yvette Brown 2010-2011

appellant was called as a witness by the Crown.

documents were 'likely to be material evidence' for the

Counsel for the stepfather attempted to cross-examine

purposes of s 97 and that the public interest in securing

him about instructions he had given to his solicitors in

that all relevant and admissible evidence was made

1978 between his initial confession that he alone was

available to the defence outweighed the public interest

responsible and his subsequent statement implicating

which protected confidential communications between

his stepfather because the instructions were clearly

a solicitor and client. The appellant applied for judicial

inconsistent with the subsequent statement implicating

review of the magistrate's decisions on the grounds that

his stepfather. When the appellant declined to waive his

the documents sought were privileged. The Divisional

privilege, counsel for the stepfather, relying on ss

Court refused the application. The appellant appealed to

4a and 5b of the Criminal Procedure Act 1865, which

the House of Lords.

provided for proof of, and cross-examination on,

Section 4 is set out at p 532 h, post

Section 5 is set out at p 532 j to p 533 a, post

Section 97, so far as material, is set out at p 531 f to

previous inconsistent statements, applied to the

stipendiary

magistrate

conducting

the

committal

proceedings for witness summonses directed to the

appellant and his solicitor, requiring them to produce all

p 532 a, post

attendance notes and proofs of evidence disclosing the

Held The appeals would be allowed for the following

factual instructions of the appellant in relation to his

reasons

defence to the murder charge which came into existence

prior to October 1978 but excluding advice given by

(1) It was clear that ss 4 and 5 of the 1865 Act did not

solicitors

issued

apply in the instant case, because the appellant had been

summonses under s 97c of the Magistrates' Courts Act

entitled to assert his privilege and thereby render the

1980 in the terms sought on the grounds that the

instructions given to his solicitors in 1978 inadmissible

and

counsel.

The

magistrate

233

Law of Evidence notes compiled by Yvette Brown 2010-2011

before counsel for the stepfather could cross-examine

evidence but a fundamental condition on which the

him about those instructions. In those circumstances,

administration of justice as a whole rested, since it was

counsel for the stepfather was unable to get the

based on the principle that a client should be able to

documents into his hands, which was a prerequisite to

consult his lawyer in confidence and without fear that

cross-examining the appellant on any inconsistency

his communications would be revealed without his

with his evidence, and since he was unable to overcome

consent, because otherwise he might hold back half the

that procedural impasse, the documents sought were not

truth. It followed that a magistrate ought not to issue a

'likely to be material evidence' for the purposes of s 97

witness summons under s 97 of the 1980 Act in

of the 1980 Act (see p 529 j, p 534 c d f, p 535 f, p

committal proceedings to compel production by a

542 f and p 543 d f, post); R v Greenwich Juvenile

prosecution witness of proofs of evidence and

Court, ex p Greenwich London BC (1977) 76 LGR 99

attendance notes giving factual instructions to his

at 105 and R v Cheltenham Justices, ex p Secretary of

solicitor which might contain or record previous

State for Trade [1977] 1 All ER 460 applied; R v Ward

inconsistent statements by the witness and/or which

[1993] 2 All ER 577 and R v Keane [1994] 2 All ER

were the subject of legal professional privilege which

478distinguished.

had not been waived, since the inadmissiblity of such

evidence by virtue of the privilege meant that it was not

(2) Having regard to the absolute and permanent nature

'likely to be material evidence' for the purposes of s 97

of the privilege attaching to communications between a

(see p 529 j, p 537 e toh, p 538 g, p 540 j to p 541 a

solicitor or counsel and a client seeking professional

f to h, p 542 a to h, p 543 d and p 544 j to p 545 a f g,

legal advice, the documents covered by the witness

post); R v Barton [1972] 2 All ER 1192 and R v

summons were protected by legal professional privilege

Ataou[1988] 2 All ER 321 overruled.

and were therefore immune from production. Legal

professional privilege was not just an ordinary rule of
234

Law of Evidence notes compiled by Yvette Brown 2010-2011

Per curiam. Sections 4 and 5 of the 1865 Act do not

You can contact Justice Morrison at the above numbers and

distinguish between oral and written statements.

email address.
Family and office is used to students calling at this time,

Although s 5 clearly refers only to written statements, s

4 covers both oral and written statements. Section 4

There are two situations in which everything that is said is

allows proof that a previous inconsistent statement was

privileged. The usual labels are :

a) Legal advice privilege;
b) Litigation privilege (i) attaches to communication

made if that is not distinctly admitted. Section 5

additionally permits (a) cross-examination of a witness

between attorneys and clients

as to a previous inconsistent written statement without

and (ii) attaches to

communication between attorneys and clients and third

showing him or her the statement and (b) contradiction

parties in contemplation of litigation.

of the witness's testimony by putting the previous

statement to him. If he denies making it, the statement

can be proved under s 4. Even if he admits making the

Privilege may only be waived by the client.

Privilege may be abrogated by statute, but only by
express terms or necessary implications.

statement but adheres to evidence inconsistent with it,

the statement, or such part of it as the judge thinks

Three Rivers District Council v Bank of England No. 5

proper, may be put before the jury under s 5 .

[2005] 4 All ER 948, 970 see for the statement of the rule by
Baroness Hayle/ Hope.

Date: 20 April 2011

TOPIC: PRIVILEGE
CONTINUED

Three Rivers District Council v Bank of England

No. 5 [2005] 4 All ER 948: The claimants, who were

CONTACT DETAILS JUSTICE MORRISON

383-8073 CELL; 927-8215 HOME; 922-8215 OFFICE
[email protected] EMAIL ADDRESS

creditors of the Bank of Credit and Commerce

International SA (BCCI) and the BCCI liquidators, had
brought proceedings against the Bank of England (the
235

Law of Evidence notes compiled by Yvette Brown 2010-2011

bank) for loss caused them by the bank in relation to the

Held The rationale underlying legal advice privilege

exercise of its statutory functions in supervising BCCI

was that it was necessary in a society in which the

before BCCI had collapsed with a huge excess of

restraining and controlling framework was built upon a

liabilities over assets. In the course of those

belief in the rule of law, that communications between

proceedings

of

clients and lawyers by which the clients were hoping

communications between the bank and its solicitors and

for the assistance of the lawyers' legal skills in the

counsel relating to the content and preparation of a

management of the clients' affairs should be secure

statement submitted on behalf of the bank to an

against the possibility of any scrutiny from others. That

independent inquiry which had been set up to inquire

rationale

into the bank's supervision of BCCI. The bank resisted

notwithstanding that as a result cases could sometimes

disclosure on the basis that all the advice and assistance

have to be decided in ignorance of relevant probative

from lawyers which related to the evidence to be

material. Legal advice included advice as to what

submitted to the inquiry and the submissions to be

should prudently and sensibly be done in the relevant

made on behalf of the bank were covered by legal

legal context. In the instant case the preparation of the

advice privilege. The judge granted the claimants'

evidence to be submitted and the submissions to be

application. On the bank's appeal against that decision,

made to the inquiry on behalf of the bank had been for

the Court of Appeal held that for legal advice privilege

the purpose of enhancing the bank's prospects of

purposes, the advice being sought had to be advice as to

persuading the inquiry that its discharge of its public

legal rights or liabilities, and that advice as to how the

law obligations had not been deserving of criticism and

bank should present its case to the inquiry so as to lead

had been reasonable in the circumstances. The

to a conclusion as favourable to the bank as possible did

presentational advice given by the lawyers in that

not qualify for privilege. The bank appealed.

context was advice as to what should prudently and

the

claimants

sought

disclosure

236

justified

legal

advice

privilege

Law of Evidence notes compiled by Yvette Brown 2010-2011

sensibly be done in the relevant legal context.

The privilege belongs to the client, but it attaches both

Accordingly, the appeal would be allowed .

to what the client tells his lawyer and to what the

lawyer advises his client to do. It is in the interests of
the whole community that lawyers give their clients

Three Rivers District Council v Bank of England

sound advice, accurate as to the law and sensible as to

No. 5 [2005] 4 All ER 948, 970 see for the statement

their conduct. The client may not always act upon that

of the rule by Baroness Hayle of Richmond :

advice (which will sometimes place the lawyer in

BARONESS HALE OF RICHMOND. [61] My

professional difficulty, but that is a separate matter) but

Lords, I agree, for the reasons given by each of you,

there is always a chance that he will. And there is little

that this appeal should be allowed. I do sympathise with

or no chance of the client taking the right or sensible

the Court of Appeal's anxiety to set boundaries to the

course if the lawyer's advice is inaccurate or unsound

scope of legal advice privilege. Legal advice privilege

because the lawyer has been given an incomplete or

restricts the power of a court to compel the production

inaccurate picture of the client's position.

of what would otherwise be relevant evidence. It may

thus impede the proper administration of justice in the

[62] This rationale extends much more broadly than to

individual case. This makes the communications

advice about legal rights and obligations strictly so-

covered different from most other types of confidential

called. I understand that we all indorse the approach of

communication, where the need to encourage candour

the Court of Appeal in Balabel v Air-India, and in

may be just as great. But the privilege is too well

particular the observation of Taylor LJ ([1988] 2 All ER

established in the common law for its existence to be

246 at 254, [1988] Ch 317 at 330), that 'legal advice is

doubted now. And there is a clear policy justification

not confined to telling the client the law; it must include

for singling out communications between lawyers and

advice as to what should prudently and sensibly be

their clients from other professional communications.

done in the relevant legal context'. There will always be

237

Law of Evidence notes compiled by Yvette Brown 2010-2011

borderline cases in which it is difficult to decide

in the firm. The law society established a complaints

whether there is or is not a 'legal' context. But much

committee and sought disclosure of documents in the

will depend upon whether it is one in which it is

firm's

reasonable for the client to consult the special

professional privilege. The firm agreed to the disclosure

professional knowledge and skills of a lawyer, so that

of the documents to counsel appointed by the law

the lawyer will be able to give the client sound advice

society, subject to their use being restricted and

as to what he should do, and just as importantly what he

privilege not being waived. Subsequently, the law

should not do, and how to do it. We want people to

society appointed a new counsel, but he was not

obey the law, enter into valid and effective transactions,

informed of the arrangements relating to the privileged

settle their affairs responsibly when they separate or

documents, and some of them were disclosed to the law

divorce, make wills which will withstand the challenge

society. The firm called for the return of the documents

of the disappointed, and present their best case before

but the law society refused and served notices

all kinds of court, tribunal and inquiry in an honest and

requisitioning the documents in its possession and other

responsible manner.

documents under s 101(3)a of the Law Practitioners Act

possession which were subject to legal

(New Zealand) 1982 which provided that in the

Jamaica Bar Association v AGG unreported (2007)- Held

investigation of a complaint the complaints committee

searches of an attorneys office was illegal and breached the

could require the production for inspection of any

rules relating to legal professional privilege.

books, documents, papers, accounts, or records in the

B v Auckland District Law Society [2004] 4 All ER

possession or control of the person complained against

269: A complaint was made to the defendant law

that related to the subject matter of the inquiry. The firm

society against the second claimant law firm and the

refused to comply on the basis that the documents were

first claimants, who were partners and former partners

privileged and the claimants commenced proceedings,

238

Law of Evidence notes compiled by Yvette Brown 2010-2011

seeking an order for their return. The law society

countervailing public interest in having the information

counterclaimed for a declaration that the firm was

made available.

obliged to comply with the requisitions. In the High

Court the judge held that the 1982 Act did not abrogate

Section 101, so far as material, is set out at [25],

below

legal professional privilege and dismissed the law

society's counterclaim. However, he held that counsel

Held (1) Legal professional privilege was a

for the law society was entitled to retain the documents

fundamental condition on which the administration of

for the limited purpose for which they had been

justice as a whole rested. At common law it was not to

supplied and on the terms originally agreed. On appeal

be balanced against competing public interests. In the

the Court of Appeal of New Zealand held that privilege

instant case the right to compel production of

was not a good answer to a requisition under s 101 of

documents was statutory and therefore the balance

the 1982 Act. They accepted the high importance of

between the public interest in the maintenance of the

privilege but considered that it was overridden by the

integrity of the legal profession and the public interest

even higher public interest in maintaining the integrity

in the administration of justice had been struck by

of the legal profession. The claimants appealed to the

Parliament. Section 101(3)(d) of the 1982 Act did not

Privy Council. The law society contended, inter alia,

expressly exclude legal professional privilege, nor did it

that once disclosure had been made the question of

do so by necessary implication, and accordingly, legal

privilege was no longer relevant, that it could only be

professional privilege was a good answer to a

restrained from making use of the information disclosed

requisition under the 1982 Act (see [46], [47], [54],

on the ground that it was confidential, and that the

[56], [58], [65], below); R (on the application of R v

claimants'

of

Derby Magistrates' Court, ex p B [1995] 4 All ER

confidential information was outweighed by the

526 and Morgan Grenfell & Co Ltd) v Special Comr of

equitable

right

to

the

protection

Income Tax [2002] 3 All ER 1 applied. (2) Legal

239

Law of Evidence notes compiled by Yvette Brown 2010-2011

professional privilege was not waived generally

General Points:
Privilege is confined to the obtaining of proper legal advice and

because a privileged document was disclosed for a

it is therefore inapplicable where the advice is sought as to the

limited purpose only. In the instant case the claim to

best way to commit a crime or to perpetrate fraud - Queen v

recover the documents was made on equitable grounds

Cox and Railton (1884) 14 QB 153.

but that did not mean that it had to yield to an

overriding

countervailing

public

interest.

The

Queen v Cox and Railton (1884) 14 QB 153: All

documents were both confidential and privileged.

communications between a solicitor and his client are

Whether a claim to the return of such documents was

not privileged from disclosure, but only those passing

based on a common law right or an equitable one, the

between them in professional confidence and in the

policy considerations which gave rise to the privilege

legitimate course of professional employment of the

precluded the court from conducting a balancing

solicitor. Communications made to a solicitor by his

exercise. A lawyer had to be able to give his client an

client before the commission of a crime for the purpose

unqualified assurance, not only that what passed

of being guided or helped in the commission of it, are

between them would never be revealed without his

not privileged from disclosure. C. and R. were partners

consent in any circumstances, but that should he

under a deed of partnership. M. brought an action

consent in future to disclosure for a limited purpose

against R. & Co., and obtained judgment therein, and

those limits would be respected. In the instant case,

issued execution against the goods of R. The goods

save in respect of the agreed use of the documents,

seized in execution were then claimed by C. as his

privilege had been expressly reserved. Accordingly, the

absolute property under a bill of sale executed in his

appeal would be allowed (see [68][71], [73], [75],

favour by R. at a date subsequent to the above-

below).

mentioned judgment. An interpleader issue was ordered

to determine the validity of the bill of sale, and upon the
240

Law of Evidence notes compiled by Yvette Brown 2010-2011

trial of this issue, the partnership deed was produced on

communication was one between solicitor and client,

C.'s behalf, bearing an indorsement purporting to be a

and privileged, the evidence was received, but the

memorandum of dissolution of the said partnership,

question of whether it was properly received was

prior to the commencement of the action by M.

reserved for this Court:-Held, by the Court (Grove, J.,

Subsequently C. and R. were tried and convicted upon a

Pollock and Huddleston, BB., Hawkins, Lopes,

charge of conspiring to defraud M., and upon that trial

Stephen, Watkin Williams, Mathew, Day, and Smith,

the case for the prosecution was, that the bill of sale

JJ.), that the evidence was properly received.

was fraudulent, that the partnership between R. and C.

The rules as to privilege must be distinguished from the rules

was in truth subsisting when it was given, and that the

of admissibility generally. What privilege protects are

memorandum of dissolution indorsed on the deed was

communications between lawyer and client in the sense that

put there after M. had obtained judgment, and

neither can be forced to disclose.

fraudulently ante-dated, the whole transaction being, it

Privilege does not determine the admissibility of those

was alleged, a fraud intended td cheat M. of the fruits of

communications if they can be proven otherwise than them

his execution. Upon the trial a solicitor was called on

being disclosed by lawyer or client - Queen v Tompkins

behalf of the prosecution to prove that after M. had

(1978) .

obtained the judgment C. and R. together consulted him

as to how they could defeat M's judgment, and as to

Without prejudice statements arises in the context of litigation

whether a bill of sale could legally be executed by R. in

where one lawyer writes a letter to another lawyer and uses

favour of C. so as to defeat such judgment, and that no

without prejudice clauses this means that

suggestion was then made of any dissolution of

breaks down you cannot rely on it for litigation .

partnership having taken place. The reception of this

if negotiation

If a party to litigation has previously made an offer to

evidence being objected to, on the ground that the

compromise there may be circumstances in which the offer

241

Law of Evidence notes compiled by Yvette Brown 2010-2011

constitutes an admission of some kind because it reveals the

came to an arrangement that liability would be accepted

unsoundness of the case however any offer of compromise

on a 50 per cent basis. The insurers estimated that half

made without prejudice to the makers rights cannot be admitted

the damages assessable would be 625 and offered to

into evidence without consent of the maker and receiver .

pay that sum. This was rejected as unrealistic and

Although such offers are usually labelled without prejudice, the

inadequate. In one of the letters exchanged between the

presence or absence of these words are not conclusive and the

plaintiff's solicitor and the insurers, to solicitor wrote

question is governed by the intention of the parties.

The

that the plaintiff would agree to settle his case on a

purpose is to reduce litigation by encouraging settlement and

50/50 basis as you propose and accordingly this leaves

compromise of disputes .

only the question of quantum to be disposed of. This

letter was not refuted and in at least four letters written

Once an agreement has been reached as a result of without

subsequently

prejudice negotiations, privilege ceases to apply and the

the

insurers

had

referred

to

the

arrangement for 50/50 as an agreement. All the letters

without prejudice communication may be examined by the

from the insurers were headed Without Prejudice. It

court whether an agreement reached and if so upon what terms.

was

contended

that

the correspondence headed

Without Prejudice did not create a binding agreement

See the case of Tomlin v Standard Telephone and cases

between

[1969] 3 All ER 201.

the

parties

since

it

only

constituted

negotiations for a settlement of the liability and

damages and was not a partial settlement as to liability

Tomlin v Standard Telephone and cases [1969] 3 All

only and was therefore, not admissible.

ER 201: The plaintiff suffered an accident during the

Held Ormrod J dissenting): (i) the letters were

course of his employment. His solicitor and his

admissible as it was not possible to determine without

employers' insurers, during the course of negotiations,

looking into the correspondence whether there was a

242

Law of Evidence notes compiled by Yvette Brown 2010-2011

binding agreement (see p 203, letter h, and p 206,

negotiation would otherwise be admissible as part of factual

letter e, post).

matrix of surrounding circumstances of a agreement resulting

from those negotiations those facts were admissible by way of

(ii) on the proper construction of the letters written by

exception to the without prejudice rule.

the defendants' representatives there was a definite and

binding agreement on a 50/50 basis even though the

Ocean Bulk Shipping contract case look at matrix read head

question of the quantum of damages was left for further

note and Lord Clarkes judgment at paragraphs 19-35.

negotiation

(see

204,

letter f,

and

207,

letters h and i, post).

Ocean Bulk Shipping and Trading SA v TMT Asia

Ltd and others [2010] 4 All ER 1011: After entering

Dictum of Lindley LJ in Walker v Wilsher ((1889), 23

into without prejudice negotiations, the parties made a

QBD at p 337) applied.

written agreement which compromised a dispute

Appeal dismissed.

between them. Subsequently, another dispute arose

between them over the meaning of that agreement. In

Difficulties continue to arise as to the extent to which result of

proceedings to resolve that dispute, the defendants

without prejudice negotiations and communications can be

sought to rely, as an aid to interpreting the agreement,

disclosed, where these have resulted in an agreement between

on certain representations that had allegedly been made

the parties. Without prejudice communications can be

during the without prejudice negotiations. The judge

examined as an aid to construction of the compromise of the

held that the evidence was admissible notwithstanding

parties .

the without prejudice rule, but his decision was

In Ocean Bulk Shipping and Trading SA v TMT Asia Ltd

reversed by the majority of the Court of Appeal. On the

and others [2010] 4 All ER 1011 it was held : where facts

defendants' appeal to the Supreme Court, the issue was

communicated between parties during without prejudice

whether the interpretation of a compromise agreement

243

Law of Evidence notes compiled by Yvette Brown 2010-2011

should be recognised as an exception to the without

during negotiations would be admitted to assist the

prejudice rule alongside established exceptions such as

court to interpret the agreement in accordance with the

rectifying such an agreement.

parties' true intentions. Nor could any sensible

distinction be drawn between a rectification case and an

Held Where facts, communicated between the parties

interpretation case. There was a close relationship

during without prejudice negotiations, would otherwise

between the problems with which both the principles of

be admissible as part of the factual matrix or

rectification and the principles of construction grappled.

surrounding circumstances as an aid to construction of

It followed that the interpretation exception should be

an agreement resulting from those negotiations, those

recognised as an exception to the without prejudice

facts were admissible by way of exception to the

rule. Justice clearly demanded it. Accordingly, the

without prejudice rule. There was no reason why the

appeal would be allowed (see [36], [40][42], [45]

ordinary principles governing the interpretation of a

[48], below).

settlement agreement should be any different depending

on whether the negotiations were or were not without

Unilever plc v Procter & Gamble Co [2001] 1 All ER

prejudice. The parties entering into such negotiations

783 and Chartbrook

would expect the agreement to mean the same in both

Ltd [2009] 4 All ER 677 considered.

cases. Such a conclusion did not offend against the

Ltd

Persimmon

Homes

Decision of the Court of Appeal [2010] 3 All ER

principle underlying the without prejudice rule, namely

282 reversed

to encourage parties to speak frankly and thus to

promote settlement. On the contrary, settlement was
likely to be encouraged if a party to negotiations knew

Lord Clarkes judgment at paragraphs 19-35

that, in the event of a dispute about the meaning of a

Without prejudicethe legal principles

settlement contract, objective facts which emerged

244

Law of Evidence notes compiled by Yvette Brown 2010-2011

[19] The approach to without prejudice negotiations

'I think they mean without prejudice to the position of

and their effect has undergone significant development

the writer of the letter if the terms he proposes are not

over the years. Thus the without prejudice principle, or,

accepted. If the terms proposed in the letter are

as it is usually called, the without prejudice rule,

accepted a complete contract is established, and the

initially focused on the case where the negotiations

letter, although written without prejudice, operates to

between two parties were regarded as without prejudice

alter the old state of things and to establish a new one.'

to the position of each of the parties in the event that the

[21] It is now well settled that the rule is not limited to

negotiations failed. The essential purpose of the original

such a case. This can be seen from a series of decisions

rule was that, if the negotiations failed and the dispute

in recent years, including most clearly from Cutts v

proceeded, neither party should be able to rely upon

Head [1984] 1 All ER 597, [1984] Ch 290, Rush &

admissions made by the other in the course of the

Tompkins Ltd v Greater London Council [1988] 3 All

negotiations. The underlying rationale of the rule was

ER 737, [1989] AC 1280, Muller v Linsley & Mortimer

that the parties would be more likely to speak frankly if

(a firm) [1996] PNLR 74, Unilever plc v Procter &

nothing they said could subsequently be relied upon and

Gamble Co [2001] 1 All ER 783, [2000] 1 WLR 2436

that, as a result, they would be more likely to settle their

and most recently Ofulue v Bossert [2009] UKHL

dispute.

16, [2009] 3 All ER 93, [2009] AC 990.

[20] Thus in Walker v Wilsher (1889) 23 QBD 335 at
[22] In particular, in the Unilever case Robert Walker

337 Lindley LJ asked what was the meaning of the

LJ (with whom Simon Brown LJ and Wilson J agreed)

words 'without prejudice' in a letter written 'without

set out the general position with great clarity ([2001]

prejudice' and answered the question in this way:

1 All ER 783 at 789791 and 796797, [2000] 1

WLR 2436 at 24412444 and 24482449). He first
245

Law of Evidence notes compiled by Yvette Brown 2010-2011

quoted from Lord Griffiths's speech in Rush &

rather than litigate them to a finish. It is nowhere more

Tompkins Ltd v Greater London Council, with which

clearly expressed than in the judgment of Oliver LJ

the other members of the appellate committee

in Cutts v Head [1984] 1 All ER 597 at 605

agreed. Rush & Tompkins Ltd v Greater London

606, [1984] Ch 290 at 306:

Council is important because it shows that the without

prejudice rule is not limited to two-party situations or to

That the rule rests, at least in part, upon public policy

cases where the negotiations do not produce a

is clear from many authorities, and the convenient

settlement agreement. It was held that in general the

starting point of the inquiry is the nature of the

rule makes inadmissible in any subsequent litigation

underlying policy. It is that parties should be

connected with the same subject matter proof of any

encouraged so far as possible to settle their disputes

admissions made with a genuine intention to reach a

without resort to litigation and should not be

settlement and that admissions made to reach a

discouraged by the knowledge that anything that is said

settlement with a different party within the same

in the course of such negotiations (and that includes, of

litigation are also inadmissible, whether or not

course, as much the failure to reply to an offer as an

settlement is reached with that party.

actual reply) may be used to their prejudice in the

course of the proceedings. They should, as it was

[23] The passage quoted by Robert Walker LJ is as

follows ([1988]

All

ER

737

at

expressed by Clauson J in Scott Paper Co v Drayton

739

Paper Works Ltd (1927) 44 RPC 151 at 157, be

740, [1989] AC 1280 at 1299):

encouraged freely and frankly to put their cards on the

table The public policy justification, in truth,

'The without prejudice rule is a rule governing the

essentially rests on the desirability of preventing

admissibility of evidence and is founded on the public

statements or offers made in the course of negotiations

policy of encouraging litigants to settle their differences

246

Law of Evidence notes compiled by Yvette Brown 2010-2011

for settlement being brought before the court of trial as

issue is not so much about the scope of the rule as about

admissions on the question of liability.

the extent of the exceptions to it.

The rule applies to exclude all negotiations genuinely

[25] It is therefore sufficient to quote two paragraphs

aimed at settlement whether oral or in writing from

from the judgment of Robert Walker LJ which show

being given in evidence.'

that the rule is not limited to admissions but now

extends much more widely to the content of discussions

[24] Robert Walker LJ observed ([2001] 1 All ER

such as occurred in this case. He said this ([2001] 1 All

783 at 789790, [2000] 1 WLR 2436 at 2442) that,

ER 783 at 791, [2000] 1 WLR 2436 at 24432444):

while in that well known passage the rule was

recognised as being based at least in part on public

'Without in any way underestimating the need for

policy, its other basis or foundation is in the express or

proper analysis of the rule, I have no doubt that busy

implied agreement of the parties themselves that

practitioners are acting prudently in making the general

communications in the course of their negotiations

working assumption that the rule, if not sacred

should not be admissible in evidence if, despite their

(Hoghton v Hoghton (1852) 15 Beav 278 at 321, 51 ER

negotiations, a contested hearing ensues. Robert Walker

545 at 561), has a wide and compelling effect. That is

LJ further noted that these two justifications for the rule

particularly true

are referred to in some detail by Hoffmann LJ in Muller

communications in question consist not of letters or

v Linsley & Mortimer (a firm). He quoted two

other written documents but of wide-ranging unscripted

substantial passages ([2001] 1 All ER 783 at

discussions during a meeting which may have lasted

790791, [2000] 1 WLR 2436 at 24422443) from

several hours.

the judgment of Hoffmann LJ in that case which it is

not necessary to repeat here because in this appeal the
247

where the

without

prejudice

Law of Evidence notes compiled by Yvette Brown 2010-2011

At a meeting of that sort the discussions between the

practical effect of the rule. But to dissect out

parties' representatives may contain a mixture of

identifiable admissions and withhold protection from

admissions and half-admissions against a party's

the rest of without prejudice communications (except

interest, more or less confident assertions of a party's

for a special reason) would not only create huge

case, offers, counter-offers, and statements (which

practical difficulties but would be contrary to the

might be characterised as threats, or as thinking aloud)

underlying objective of giving protection to the parties,

about future plans and possibilities. As Simon Brown

in the words of Lord Griffiths in Rush & Tompkins Ltd

LJ put it in the course of argument, a threat of

v Greater London Council [1988] 3 All ER 737 at

infringement proceedings may be deeply embedded in

740, [1989] AC 1280 at 1300: to speak freely about all

negotiations for a compromise solution. Partial

issues in the litigation both factual and legal when

disclosure of the minutes of such a meeting may be, as

seeking

Leggatt LJ put it in Muller's case, a concept as

establishing a basis of compromise, admitting certain

implausible as the curate's egg (which was good in

facts. Parties cannot speak freely at a without

parts).'

prejudice meeting if they must constantly monitor every

compromise

and,

for

the

purpose

of

sentence, with lawyers or patent agents sitting at their

[26] Finally,

Robert

Walker

LJ

expressed

his

shoulders as minders.'

conclusions on the cases as follows ([2001] 1 All ER

783 at 796, [2000] 1 WLR 2436 at 24482449):

[27] The without prejudice rule is thus now very much

wider than it was historically. Moreover, its importance

'they make clear that the without prejudice rule is

has been judicially stressed on many occasions, most

founded partly in public policy and partly in the

recently perhaps in Ofulue's case [2009] 3 All ER

agreement of the parties. They show that the protection

93, [2009] AC 990, where the House of Lords identified

of admissions against interest is the most important

the two bases of the rule and held that communications

248

Law of Evidence notes compiled by Yvette Brown 2010-2011

in the course of negotiations should not be admissible

considerations of public policy which may emerge later,

in evidence. It held that the rule extended to

such as those suggested in this case, that would deny

negotiations concerning earlier proceedings involving

them that protection.'

an issue that was still not resolved and refused, on the

In para [2] Lord Hope had said that where a letter is

ground of legal and practical certainty, to extend the

written without prejudice during negotiations conducted

exceptions to the rule so as to limit the protection to

with a view to a compromise, the protection that these

identifiable admissions.

words claim will be given to it unless the other party

[28] The speeches of the majority contain a number of

can show that there is a good reason for not doing so.

references to the importance of the rule which are relied

[29] In para [43] Lord Rodger recognised the breadth of

upon on behalf of Oceanbulk. I take some examples.

the without prejudice rule and rejected the proposed

Lord Hope said at [12]:

exception. So too did Lord Walker. He said at [57] that

' The essence of [the rule] lies in the nature of the

he would not restrict the without prejudice rule unless

protection that is given to parties when they are

justice clearly demands it. This seems to me to be

attempting to negotiate a compromise. It is the ability to

entirely consistent with the approach of Lord Griffiths

speak freely that indicates where the limits of the rule

in Rush

should lie. Far from being mechanistic, the rule is

Council [1988] 3 All ER 737 at 740, [1989] AC 1280 at

generous in its application. It recognises that unseen

1300, where he said that the rule is not absolute and that

dangers may lurk behind things said or written during

resort may be had to the without prejudice material for

this period, and it removes the inhibiting effect that this

a variety of reasons where the justice of the case

may have in the interests of promoting attempts to

requires it. See also per Lord Neuberger at [89],

achieve a settlement. It is not to be defeated by other

endorsing the passage from the judgment of Robert

249

&

Tompkins

Ltd

Greater

London

Law of Evidence notes compiled by Yvette Brown 2010-2011

Walker LJ in the Unilever case [2001] 1 All ER 783 at

783 at 791, [2000] 1 WLR 2436 at 24432444 (quoted

796, [2000] 1 WLR 2436 at 24482449 (referred to

above)),

above).

assumption that the rule has a wide and compelling

which

included

the

general

working

effect, he said ([2001] 1 All ER 783 at 791, [2000] 1

WLR 2436 at 2444) that there are nevertheless
numerous occasions on which the rule does not prevent

The exceptions to the without prejudice rule

the admission into evidence of what one or both parties

[30] The cases to which I have referred (and others)

said or wrote in the course of without prejudice

show that, because of the importance of the without

negotiations.

prejudice rule, its boundaries should not be lightly

eroded. The question in this appeal is whether one of

[32] Robert Walker LJ then set out ([2001] 1 All ER

the exceptions to the rule should be that facts identified

783 at 791793, [2000] 1 WLR 2436 at 2444

during without prejudice negotiations which lead to a

2446) a list of what he called the most important

settlement agreement of the dispute between the parties

instances. He described them thus (omitting some of the

are admissible in evidence in order to ascertain the true

references):

construction of the agreement as part of its factual

'(1) when the issue is whether without prejudice

matrix or surrounding circumstances.

communications

have

resulted

in

concluded

[31] This issue must be put in the context of the

compromise agreement, those communications are

exceptions which have already been permitted to the

admissible

rule. In this connection I again turn to the illuminating

(2) Evidence of the negotiations is also admissible to

judgment of Robert Walker LJ in the Unilever case.

show that an agreement apparently concluded between

Having set out the general principles ([2001] 1 All ER

250

Law of Evidence notes compiled by Yvette Brown 2010-2011

the parties during the negotiations should be set aside

the exception should be applied only in the clearest

on the ground of misrepresentation, fraud or undue

cases of abuse of a privileged occasion.

influence. Underwood v Cox (1912) 4 DLR 66, a

(5) Evidence of negotiations may be given (for

decision from Ontario, is a striking illustration of this.

instance, on an application to strike out proceedings for

(3) Even if there is no concluded compromise, a clear

want of prosecution) in order to explain delay or

statement which is made by one party to negotiations,

apparent

and on which the other party is intended to act and does

Wilsher (1889) 23 QBD 335 at 338, noted this

in fact act, may be admissible as giving rise to an

exception but regarded it as limited to the fact that

estoppel. That was the view of Neuberger J

such letters have been written and the dates at which

in Hodgkinson & Corby Ltd v Wards Mobility Services

they were written. But occasionally fuller evidence is

Ltd [1997] FSR 178 at 191, and his view on that point

needed in order to give the court a fair picture of the

was not disapproved by this court on appeal ([1998]

rights and wrongs of the delay.

acquiescence.

Lindley

LJ

in Walker

FSR 530).
(6) In Muller's case (which was a decision on discovery,
(4) Apart from any concluded contract or estoppel, one

not admissibility) one of the issues between the

party may be allowed to give evidence of what the other

claimant and the defendants, his former solicitors, was

said or wrote in without prejudice negotiations if the

whether the claimant had acted reasonably to mitigate

exclusion of the evidence would act as a cloak for

his loss in his conduct and conclusion of negotiations

perjury,

unambiguous

for the compromise of proceedings brought by him

impropriety But this court has, in [Forster v

against a software company and its other shareholders.

Friedland [1992] CA Transcript 1052] and Fazil-

Hoffmann LJ treated that issue as one unconnected with

Alizadeh v Nikbin (1993) Times, 19 March, warned that

the truth or falsity of anything stated in the negotiations,

blackmail

or

other

251

Law of Evidence notes compiled by Yvette Brown 2010-2011

and as therefore falling outside the principle of public

of variation according to usage in the profession. It

policy protecting without prejudice communications.

seems to me that, no issue of public policy being

The other members of the court agreed but would also

involved, it would be wrong to say that the words were

have based their decision on waiver.

given a meaning in 1889 which is immutable ever after

(See [1984] 1 All ER 597 at 613, [1984] Ch 290 at

(7) The exception (or apparent exception) for an offer

316.)

expressly made without prejudice except as to costs

was clearly recognised by this court inCutts v Head,

(8) In matrimonial cases there has developed what is

and by the House of Lords

in the Rush &

now a distinct privilege extending to communications

Tompkins case, as based on an express or implied

received in confidence with a view to matrimonial

agreement between the parties. It stands apart from the

conciliation '

principle of public policy (a point emphasised by the

[33] Although it is not included in that list, it is not in

importance which the new Civil Procedure Rules, Pt

dispute between the parties that another of the

44.3(4), attach to the conduct of the parties in deciding

exceptions to the rule is rectification. A party to without

questions of costs). There seems to be no reason in

prejudice negotiations can rely upon anything said in

principle why parties to without prejudice negotiations

the course of them in order to show that a settlement

should not expressly or impliedly agree to vary the

agreement should be rectified. It was so held at first

application of the public policy rule in other respects,

instance in Canada in Pearlman v National Life

either by extending or by limiting its reach. In Cutts v

Assurance Co of Canada (1917) 39 OLR 141 and in

Head Fox LJ said:

New Zealand in Butler v Countrywide Finance

what meaning is given to the words 'without

Ltd (1992) 5 PRNZ 447. Neither case contains much

prejudice' is a matter of interpretation which is capable

reasoning but both courts treated the point as self252

Law of Evidence notes compiled by Yvette Brown 2010-2011

evident. In my opinion the parties correctly recognised

cases, especially Unilever and Ofulue, strongly point

such an exception because it is scarcely distinguishable

the way.

from the first exception. No sensible line can be drawn

[35] By contrast, it was submitted on behalf of TMT

between admitting without prejudice communications

that facts which (a) are communicated between the

in order to resolve the issue of whether they have

parties in the course of without prejudice negotiations,

resulted in a concluded compromise agreement and

(b) form part of the factual matrix or surrounding

admitting them in order to resolve the issue of what that

circumstances and (c) would, but for the without

agreement was. This can be seen most clearly where the

prejudice rule, be admissible as an aid to construction

alleged agreement is oral but, in my opinion, must

of a settlement agreement which results from the

equally apply where the agreement is partly oral and

negotiations should be admissible in evidence by way

partly in writing and where the agreement is wholly in

of exception to the rule because the agreement cannot

writing but the issue is whether it reflects the common

otherwise be properly construed in accordance with the

understanding of the parties.

well recognised principles of contractual interpretation

[34] It was submitted on behalf of Oceanbulk that none

and because there is no distinction in principle between

of those exceptions applies here and that the general

this exception (the interpretation exception) and, for

principle that one party should not be permitted to

example, the rectification exception.

cross-examine the other party (or its witnesses) on

matters disclosed or discussed in without prejudice
negotiations should be applied in its full rigour.

Read article Legal Professional Privilege Some Aspects Of

Although it was correctly accepted that the point for

Communications

decision in this appeal was not decided in Unilever or

Journal 2009 p 43 .

any of the other cases, it was submitted that the decided

253

Explained : Vol 34, 1 West Indian Law