Date: 17 September 2010: Law of Evidence Notes Compiled by Yvette Brown 2010-2011

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.
1
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
2
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

3
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

4
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

5
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
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,
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.

8
illustrates the
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
9
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

10
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

11
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
12
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,
13
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

14
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
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
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
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
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
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.
20
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
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
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
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.

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

partys case is more probable than the other, see the case of
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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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

63
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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.
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
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
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
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
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
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
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
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
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
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

100
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

101
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

102
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,
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
104
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
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
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.

107
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

108
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
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
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

111
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

112
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
113
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

114
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

115
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
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
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

118
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.

119
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

120
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
121
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
122
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,

123
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
124
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

125
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

126
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

127
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.
128
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

129
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.
130
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.
131
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
132
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.
133
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.
134
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

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

135
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

136
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

137
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

138
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
139
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

140
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
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
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
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
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

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
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
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
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
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

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
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

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
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
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
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
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

155
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
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
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
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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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.
178
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
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

180
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

181
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

182
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
206
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
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

208
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
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,
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

211
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
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

213
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

214
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
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

216
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
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
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
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
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
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
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
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
'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
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
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
(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
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
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
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
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
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
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
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
dmorrison412@hotmail.com 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
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
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
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
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
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
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
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
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
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
[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
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
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
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
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
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
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
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
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

Date: 17 September 2010: Law of Evidence Notes Compiled by Yvette Brown 2010-2011

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Law of Evidence notes compiled by Yvette Brown 2010-2011

Date: 17 September 2010

reasonable doubt, except where the burden shifts. Distinctions

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

Witnesses: Witnesses are persons who give evidence .

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.

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

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

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