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Published online by Cambridge University Press: 16 January 2009
No expert long range forecast is needed to predict that in the near future a wind of change of a velocity and a turbulence hitherto unknown is going to sweep away many common law principles of the law of evidence regarded in the past as fundamental. In civil proceedings, the hurricane is upon us, with the thirteenth report of the Law Reform Committee, and the Civil Evidence Bill 1967, virtually providing for the abolition of the rule against first-hand hearsay and the rule against narrative, and substituting a wide discretion in the court. All the signs are that in a short time analogous reforms for criminal proceedings will be announced, and already previous statements have been rendered widely admissible by the Criminal Justice Act 1967. The object of this article is to look at the common law relating to the rule against narrative in criminal proceedings, as it is applied in England and in the United States, and to make a few comments on the procedure introduced by section 9 of the Criminal Justice Act 1967.
The rule against narrative is sometimes called the rule against self-corroboration. This is misleading, in that a witness can never corroborate himself where corroboration is required by any rule of law or practice. In the thirteenth report, the first description is said to be a misnomer, but a helpful summary of the rule is given: “what the witness himself said outside the witness-box is not evidence.” Wills describes the rule in this way: “… the witness may not repeat to the Court his own previous narratives or statements concerning the relevant facts made to other persons out of Court; when he is in the witness-box he must take his mind back, directly so to speak, to the facts he is called to prove, and must give to the Court his present recollection of those facts.”
1 Cmnd. 2964 (1966).
2 Ibid. p. 3, para. 5.
3 Evidence, 3rd ed. (1938), p. 145.Google Scholar
4 n. 38, p. 70, and nn. 12–14, p. 79, infra.
5 (1961) 24 M.L.R. at p. 45.
6 Evidence, 3rd ed. (1967), p. 204.Google Scholar
7 Morgan accuses the United States Bar of having no real acquaintance with the rules of evidence, and draws an analogy from Bowie's comment: “The rules of common law pleading have been repealed in Maryland by the ignorance of the Bar”: Some Problems of Proof (1956), p. 194. An Englishman cannot but compare the silence of our judges with the erudition displayed by American judges in this field. The acceptance by the Court of Appeals of Maryland of views on hearsay expressed by Morgan himself is certainly a disarming reply to his strictures: see n. 16, p. 79, infra.
8 [1956] C.L.J. 199, [1957] C.L.J. 55.
9 1 F. & F. 86, 87.
10 R. v. Jones (1827) 2 C. & P. 629, 630; R. v. Higgins (1829) 3 C. & P. 603, 604; R. v. McGregor [1967] 2 All E.R. 267, 269.Google Scholar The same rule applies in Australia: R. v. Grills (1910) 11 C.L.R. 400Google Scholar, per Griffith C.J. (409), per O'Connor J. (419); also in the U.S.: State v. Worthington (1870) 64 N.C. 594, 595; Collins v. Comm. (1929) 13 S.W. 2d 263 (Kentucky)Google Scholar; Rhodes v. Comm. (1864) 48 Pa. 396, 401.
11 2 F. & F. 64, 65n.
12 (1879) 14 Cox 341. See [1956] C.L.J. at p. 204.
13 Pamphlet 21.
14 R. v. Exall (1866) 4 F. & F. 922. See n. 49, p. 71, infra. In [1956] C.L.J. at p. 205, n. 31, I suggested that the plausible story would be inadmissible under the rule against self-corroboration, overlooking these two possible exceptions.
15 [1914] A.C. 545, 559. Simon, Attorney-General, for the Crown, stated a similar principle in argument: 10 Cr.App.R. 141, 147.
16 Lord Reading in his judgment so stated the rule: [1914] A.C. at p. 563.
17 The Times, 5 July 1932.Google Scholar
18 [1942] 1 All E.R. 187, 191.
19 n. 28, p. 69, infra.
20 42 Cr.App.R. 153, 160.
21 An Introduction to Evidence, 4th ed. (1967), p. 103.Google Scholar
22 [1963] 1 Q.B. 729, 731.
23 Credland v. Knowler (1951) 35 Cr.App.R. 48.Google Scholar
24 n. 10, supra.
25 In R. v. Coats [1932] N.Z.L.R. 401, 407Google Scholar, Ostler, J. said: “Exculpatory statements made to the police when making enquiries about a crime…, if properly obtained, are always admissible for or against the person who made them if he is subsequently charged….”Google Scholar
26 R. v. Littleboy [1934] 2 K.B. 408.Google Scholar
27 c. 80.
28 Evidence (1940), Vol. VI, para. 1732, p. 100.Google Scholar Incompetence from testifying on the ground of interest was removed by Victorian statutes, starting with the Evidence Act 1843.
29 (1967) 117 New L.J. 607.
30 S. 157, Indian Evidence Act, see n. 67, p. 96, infra.
31 Azimuddy v. E. (1926) 54 C. 237, 244.Google Scholar
32 [1956] C.L.J. 205–206.
33 n. 12, supra.
34 Griffin v. State (1899) 76 Am.S.R. 718. Discussed as a res gesta decision in [1957] C.L.J. 67.
35 Op. cit., Vol. VI, para. 1732, p. 106.
36 The rule is irrelevant as the statement is not admitted to prove its truth, unless it is part of the res gesta. See n. 38, p. 70, and nn. 12–17, p. 79, infra.
37 State v. Nocton (1894) 26 S.W. 551—N. gave evidence but semble not on this point; State v. Moore (1900) 56 S.W. 883.Google Scholar
38 People v. Anderson (1932) 7 P. 2d 202—the evidence was excluded as hearsay, the correct ground for exclusion, as the defence sought unavailingly to introduce it as res gesta: n. 4, supra.Google Scholar
39 Sherman v. State (1921) 202 P. 521.Google Scholar
40 (1929) 16 N.E. 206, 208.
41 Georgia—Lyles v. State (1908) 60 S.E. 578—L.Google Scholar called the witness in, saying he had shot his wife; Oklahoma—Gransden v. State (1916) 158 P. 157—on arrestGoogle Scholar; Pope v. State (1918)Google Scholar 175 P. 727—to the doctor. The Florida case of Day v. State, n. 64, p. 73, infra, is the converse of these cases.
42 State v. Crouch (1936)Google Scholar 98 S.W. 2d 550—Missouri; Scott v. State (1937)Google Scholar 105 S.W. 2d 242—Texas; People v. Perkins (1937) 66 P. 2d 631—California.Google Scholar In these three cases, the accused gave evidence, but not on this point. In the following cases, it seems that he did not give evidence: Richardson v. State (1920)Google Scholar 85 So. 186—Mississippi; State v. Brooks (1922)Google Scholar 186 N.W. 46—Iowa; State v. Vann (1880) 82 N.C. 631; People v. Dad (1921) 196 P. 506—CaliforniaGoogle Scholar; Comm. v. Haddad (1924) 145 N.E. 561—Massachusetts.Google Scholar
43 R. v. Schama & Abramovitch (1914) 84 L.J.K.B. 396.Google Scholar
44 Evidence, 10th ed. (1963), para. 191Google Scholaret seq.: R. v. Abraham, n. 48, p. 71, infra.
45 n. 58, p. 72, infra.
46 Op. cit., Vol. VI, para. 1781, p. 228.
47 (1958) 308 S.W. 2d 869, 871, 872.
48 (1848) 3 Cox 430. See also State v. Conroy (1905) 102 N.W. 417, 418—S.C. Iowa.Google Scholar
49 R. v. Exall (1866) 4 F. & F. 922.
50 R. v. Muller (1865) 4 F. & F. 383n., and 923n.
51 II Hale 288. This was precisely the defence set up in R. v. Manzano, n. 11, supra.
52 The word robbery is often used, as here, as equivalent to larceny in legal texts until modern times when this usage has become confined to laymen.
53 (1866) 4 F. & F. at p. 925.
54 n. 50, supra.
55 n. 10, supra.
56 48 Pa. 396, 401.
57 64 N.C. 594, 595.
58 18 So. 2d 805—Court of Appeals, Alabama.
59 Wigmore, op. cit., Vol. VI, paras. 1772–1776; Cross, op. cit., pp. 461–464.
60 (1927) 112 So. 761, 762—S.C., Alabama.
61 (1837) 7 Ad. & E. 550.
62 In this it resembles Johnson v. State, n. 47, supra, and R. v. Abraham, n. 48. supra.
63 [1957] C.L.J. p. 65, n. 29.
64 44 So. 715, 716.
65 Co.Litt. 6b.
66 Best, Evidence, 12th ed. (1922), p. 281.
67 Ibid.
68 R. v. Marshall (1830) 1 Lew. 76.
69 n. 51, p. 82, infra.
70 The Times, 8 March 1856.
71 [1957] C.L.J. at p. 68.
72 Notable British Trials, pp. 120–138.
73 Ibid. p. 138. See R. v. Vernon [1965] Crim.L.R. 299, and n. 76, p. 84, infra.Google Scholar
74 Ibid. pp. 141–142.
75 Ibid. pp. 209–215.
76 Ibid. p. 215.
77a Ibid. pp. 244–245, Sir Forrest Fulton's letter to The Times pp. 276–278, examination of prosecuting counsel by the Committee of Inquiry; pp. 256–257, report of the Committee itself.
77b As to the admission of O.M.'s prior description of the trickster to the police, see, however, nn. 97, 98, p. 77, infra.
78 Cmd. 3297 (1929), para. 128.
79 22 S.R.(N.S.W.) 427, 430.
80 Op. cit., Vol. IV, para. 1130, p. 208. Cited and approved in State v. McSloy (1953) 261 P. 2d 663, 668—S.C. MontanaGoogle Scholar; People v. Gould (1960) 354 P. 2d. 865, 867—S.C. California. Also perGoogle ScholarParke, J. (diss.) in Blake v. State (1929) 145 A. 185, 190Google Scholar, and per Learned, Hand J. in Di Carlo v. U.S. (1925) 6 F. 2d 364, 366.Google Scholar Another reason why the first identification is to be preferred is that identification parade procedure is rigidly controlled, while in court there are no safeguards. It has been suggested that if a witness failed to identify at a parade, he should not be permitted to identify in court: (1968) 112 S.J. 21.
81 (1912) 8 Cr.App.R. 84.
82 (1910) 5 Cr.App.R. 135, 142–143.
83 [1961] Crim.L.R. 541.
84 (1917) 12 Cr.App.R. 247.
85 (1924) 18 Cr.App.R. 145.
86 R. v. Goss (1923) 17 Cr.App.R. 196Google Scholar; R. v. Haslam (1925) 19 Cr.App.R. 59.Google Scholar
87 R. v. Melany (1924) 18 Cr.App.R. 2Google Scholar; R. v. Hinds [1932] 2 K.B. 644.Google Scholar
88 (1925) 19 Cr.App.R. 52, 54.
89 R. v. Fannon et al., n. 79, supra, at p. 431.
90 R. v. Kingsland (1919) 14 Cr.App.R. 8.Google Scholar
91 R. v. Varley (1914) 10 Cr.App.R. 125.Google Scholar
92 R. v. Palmer (1914) 10 Cr.App.R. 77Google Scholar; R. v. Wattam (1941) 28 Cr.App.R. 80.Google Scholar
93 R. v. Wright (1934) 25 Cr.App.R. 35Google Scholar; R. v. Lawrenson [1961] Crim.L.R. 398Google Scholar; R. v. Seiga, n. 83, supra.Google Scholar
94 Proof of Guilt, 3rd ed. (1963), pp. 106–124Google Scholar; [1963] Crim.L.R. 479, 545, with H. A. Hammelmann.
95 Ibid. pp. 121, 487.
96 Comm. v. Fagan (1871) 108 Mass. 471; People v. Johnson (1891) 27 P. 663, and People v. McNamara (1892) 29 P. 953—California. It could be used in cross-examination by the defence: R. v. Clarke (1930) 22 Cr.App.R. 58, 65Google Scholar; or under s. 5, see R. v. Dickman, n. 96, p. 87, infra. If the identifier never gives evidence, it is inadmissible: Sparks v. R. [1964] A.C. 964.Google Scholar
97 Notable British Trials, p. 138.
98 Ibid. p. 139. In his letter to The Times, the trial judge, Sir Forrest Fulton, described the evidence of O.M. as most dramatic. He mentions that she informed the police of the mark, and pointed it out, a mole (sic), to the jury: ibid. p. 243. As the evidence was dramatic, it presumably carried great weight with judge and jury. It is submitted that the judge ought not to have allowed O.M. to testify in chief to the previous description she gave to the police. Even after all the stir the case created, the apologia of the judge contains no indication that it occurred to him that the previous description might be inadmissible.
99 n. 80, supra. See a note in (1930) 70 A.L.R. 910, collating and summarising most of the cases to that date. Since then the trend in favour of admissibility has become more widespread.
1 (1944) 58 N.E. 2d 112, 113.
2 (1914) 106 N.E. 105.
3 (1925) 6 F. 2d 364, 366. The court assumed, merely for the sake of argument, that the rule in Jung Hing was correct, but created an exception to it.
4 S. 393–b, Code of Criminal Procedure.
5 People v. Trowbridge (1953) 113 N.E. 2d 841.Google Scholar
6 People v. Cioffi (1956) 133 N.E. 2d 703.Google Scholar
7 (1951) 101 N.E. 2d 457. This is a valuable provision, because after a considerable lapse of time an honest witness may be unable to make a positive identification: nn. 40–41, p. 81, infra.
8 (1903) 71 P. 982.
9 The presence of H. would not necessarily make the evidence admissible: nn. 47, 48, p. 82, infra.
10 (1903) 71 P. at p. 984.
11 n. 37, p. 81, infra. The U.S. authorities are legion, and I may, of course, have selected an unrepresentative group of cases for study.
12 nn. 70, 71, supra. Even here it is not certain that the evidence has independent probative value, but Cross on balance thinks it has: op. cit., p. 467.
13 n. 4, p. 78, supra.
14 n. 34, p. 81, infra.
15 People v. Gould (1960) 354 P. 865, 867.Google Scholar
16 (1948) 62 Harv.L.R. 177, 192, where Morgan refers to this argument, but rejects it. His comments are approved in Judy v. State (1958)Google Scholar 146 A. 29, 32—Court of Appeals, Maryland.
17 (1956) 72 L.Q.R. 91, 100.
18 Johnson v. State (1949) 36 N.W. 2d 86, 89—S.C. Wisconsin.Google Scholar
19 Some Problems of Proof, p. 144.
20 Cross holds it is: (1956) 72 L.Q.R. 94–100. Contra, Chafee (1922) 35 Harv.L.R. 430.
21 Williams v. State (1922) 110 S.E. 286, 299.Google Scholar
22 Nagina v. E. (1921) 19 A.L.J. 947.Google Scholar Buller J. seems to adopt the same analysis in R. v. Parker (1783) 3 Doug. 242, the English case that first laid down the rule against narrative.
23 (1889) 24 L.R.Ir. 522, 528.
24 n. 59, p. 83, n. 20, p. 90, infra.
25 n. 3, p. 78, supra.
26 U.S. v. Forzano (1951) 190 F. 2d 687, 689.Google Scholar
27 Judy v. State (1958) 146 A. 2d 29.Google Scholar
28 145 A. 185. See n. 80, supra.
29 Comm. v. Locke (1956) 138 N.E. 2d 359.Google Scholar
30 People v. Richardson (1946) 169 P. 2d 44Google Scholar; People v. Bennett (1953) 259 P. 2d 476.Google Scholar
31 n. 8, p. 78, supra.
32 119 A. 2d 917, 921.
33 345 P. 2d 573.
34 354 P. 2d 865.
35 n. 7, p. 78, supra.
36 306 S.W. 2d 825.
37 nn. 8–11, p. 78, supra.
38 State v. Wilson (1951) 231 P. 2d 288Google Scholar; State v. McSloy (1953) 261 P. 2d 663Google Scholar; State v. Williams (1963) 189 A. 2d 193.Google Scholar
39 R. v. Fraser & Warren (1956) 40 Cr.App.R. 160.Google Scholar
40 People v. Spinello, n. 7, p. 78, supra, at p. 459—three years had passed.
41 In England, nothing can be done: R. v. Williams [1956] Crim.L.R. 833.Google Scholar Car numbers are particularly difficult to remember. In three cases, there was not sufficient evidence to support a conviction, because the eye-witness could not remember the number of the vehicle he had seen in the first two cases driven carelessly, and in the third used as a getaway car after a robbery. In case 1, he asked his wife to write down the number, in case 2 he told the police, and in case 3 he asked a third party to write it down. Unless he checked what was written down, he could not use the document to refresh his memory, and the evidence of the scribe was hearsay: Grew v. Cubitt [1951] 2 T.L.R. 305Google Scholar; Jones v. Metcalfe [1967] 1 W.L.R. 1286Google Scholar; R. v. McLean, The Times, 18 November 1967.Google Scholar
42 Nagina v. E. (1921) 19 A.L.J. 947.Google Scholar
43 n. 34, p. 81, supra.
44 n. 7, p. 78, supra.
45 R. v. Burke (1847) 2 Cox 295.
46 s. 157, Indian Evidence Act. See n. 67, p. 96, infra. The previous statement is admissible under the section only to corroborate. If the witness states that he is no longer able to identify, there is nothing to corroborate: Nagina v. E., n. 42, p. 81, supra.
47 n. 76, p. 84, infra.
48 R. v. Fowkes—see [1957] C.L.J. at p. 69.Google Scholar
49 n. 81, p. 98, infra.
50 (1921) 114 A. 155.
51 164 A. 2d 708, 711.
52 [1914] A.C. 545.
53 S. 38, Children and Young Persons Act 1933 (23 & 24 Geo. 5, c. 12).
54 R. v. Whitehead [1929] 1 K.B. 99.Google Scholar Corroboration must be extraneous to the witness to be corroborated. There is no corroboration even if the prosecutrix repeats her story 25 times.
55 R. v. Zielinski (1950) 34 Cr.App.R. 193Google Scholar; R. v. Redpath (1962) 46 Cr.App.R. 319.Google Scholar
56 10 Cr.App.R. 141, 148. Credland v. Knowler, n. 23, Part I, supra. See also n. 76, p. 84, infra.
57 10 Cr.App.R. 141, 149.
58 [1914] A.C. at p. 563.
59 n. 24, p. 80, supra.
60 [1914] A.C. per Lord Moulton at p. 558, per Lord Reading at p. 563.
61 Ibid. p. 564.
62 (1929) 145 A. 185, per Bond C.J. (187), per Parke J. (190). See n. 28, p. 80, supra.
63 [1896] 2 Q.B. 167.
64 Ibid. at p. 177.
65 Ibid. at p. 178. See n. 18, p. 90, infra.
66 R. v. Camelleri [1922] 2 K.B. 122.Google Scholar
67 [1914] A.C. at p. 562, per Lord Reading.
68 (1914) 111 L.T. 816.
69 nn. 12–14, p. 79, supra.
70 [1914] A.C. at p. 564.
71 Ibid, at p. 549.
72 Ibid, at p. 564, per Lords Moulton and Reading. The doctrine that judges have the power to exclude admissible evidence, if unduly prejudicial to the accused, was first adumbrated in this case: it was denied by Lord Halsbury arguendo: 10 Cr.App.R. at p. 149. His Lordship did not deliver any judgment.
73 Cross, op. cit., p. 435, citing R. v. Cox (1858) 1 F. & F. 90.
74 Per Learned Hand, J. in Di Carlo v. U.S. (1925) 6 F. 2d 364, 366.Google Scholar
75 Per Philp, J. in Mahoney v. Fielding [1959] S.R.Qd. 479, 484.Google Scholar
76 [1914] A.C. at p. 554, per Lord Atkinson. Flight is some evidence of guilt: R. v. Hazy (1826) 2 C. & P. 458, 459. The defence may lead evidence to explain the reason for it: State v. Wilson (1951) 231 P. 2d 288, 293Google Scholar; People v. Hinshaw (1927) 227 P. 156, 167.Google Scholar
77 Ibid, at p. 560.
78 n. 23, p. 68, n. 56, p. 83, supra.
79 12th ed. p. 493, para. 575.
80 (1910) 11 C.L.R. 400, 422. Hesitation is mentioned as a factor in State v. Worthington (1870) 64 N.C. 594, 596
81 n. 28, p. 80, n. 62, p. 83, supra.
82 145 A. 185, 189.
83 Thompson v. R. [1918] A.C. 221, 230.Google Scholar
84 Notable British Trials, p. 211.
85 (1897) 18 Cox 470, 471.
86 n. 75, p. 74, supra.
87 (1852) 6 Cox 69. The prosecution also called two other witnesses, Capes and White. H. averred that he had made a statement previously to C., and had spoken with Walker in White's presence. Williams J. overruled the objection of defence counsel that neither H., C. nor White could prove these conversations, but confined the answer to Yes or No, as, he said, in the rape cases (74). Later counsel withdrew his objection, and White was permitted to repeat what Walker said to H. (75). It was quite innocuous, and shows the futility of the old complaint rule: if the jury had not been allowed to hear the details they might well have assumed that Walker uttered terrible threats to H.
88 (1855) 7 Cox 74.
89 Evidence, 10th ed. (1963), para. 1584.Google Scholar
90 n. 87, p. 86, supra, and n. 19, p. 90, infra.
91 (1918) 2 Ir.R. 361.
92 Ibid. at p. 374.
93 Ibid. at p. 388.
94 n. 87, p. 86, supra. There is no reference to the recent fabrication exception whatever: it had probably not yet emerged. Jones v. D.P.P. [1962] A.C. 635, 675Google Scholar, is another sub silentio example.
95 Woodward v. Shea (1952) V.L.R. 313, 317Google Scholar, per Sholl J.
96 (1913) 8 Cr.App.R. 146. In R. v. Dickman, H., a prosecution witness, described a man he had seen on the train with the deceased on the day of the murder as wearing a fawn overcoat. In cross-examination, he was challenged for not referring to the overcoat before. He replied that he gave that description to the police on the day of the murder. He was then asked whether he said this before the magistrates. He replied that he was not asked: Notable British Trials, p. 50.
97 (1889) 24 L.R.Ir. 522.
98 Ibid. pp. 522–524.
99 Ibid. p. 543.
1 Ibid. p. 547.
2 Ibid. p. 532. O'Brien J. also thought that the statement in re-examination did not go too far: p. 558.
3 (1912) 97 N.E. 14, 15.
4 R. v. Neville, n. 87, Part II, supra, sub silentio; Flanagan v. Fahy, n. 91, p. 87, supra, per Dodd J. (376); per Ronan L.J. (390); R. v. Coll, n. 97, p. 87, supra, per Gibson J. (530).
5 n. 95, p. 87, supra.
6 Flanagan v. Fahy, n. 91, p. 87, supra, per Dodd J. (375), per O'Brien C. (383).
7 Per Dixon, C.J. in The Nominal Defendant v. Clements (1960) 104 C.L.R. 476, 479.Google Scholar Quoted in Cross, op. cit., p. 202.
8 State v. Fleming (1945) 188 S.W. 2d 12, 16—Missouri.Google Scholar
9 People v. Jung Hing (1914) 106 N.E. 105, 108.Google Scholar
10 People v. Trowbridge (1953) 113 N.E. 2d 841, 843—New York.Google Scholar
11 (1929) 145 A. 185, 188.
12 Frankcombe v. Holloway [1957] V.L.R. 139, 141.Google Scholar
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14 I accept respectfully the view of Cross that no exception to the hearsay rule is involved. Even where consent is in issue, a complaint is not affirmative evidence of lack of consent: op. cit., p. 199.
15 R. v. Nicholas (1846) 2 C. & K. 246.
16 R. v. Megson (1840) 9 C. & P. 420.
17 R. v. Wink (1834) 6 C. & P. 397; R. v. Osborne (1842) C. & M. 622. In R. v. Walker (1839) 2 M. & R. 212, Parke B. seems to have received the name, perhaps because the only objection was to the particulars.
18 [1896] 2 Q.B. 167.
19 nn. 87, 90, p. 86, supra.
20 n. 24, p. 80, nn. 58, 59, p. 83, supra.
21 [1896] 2 Q.B. 167, 178.
22 R. v. Burke (1912) 47 Ir.L.T. 111.Google Scholar
23 R. v. Wallwork (1958) 42 Cr.App.R. 153.Google Scholar
24 Ibid. at p. 162. Criticised by Cross in (1958) 74 L.Q.R. 352.
25 R. v. Whitehead (1929) 21 Cr.App.R. 23, 24.Google Scholar
26 Berry v. B. (1898) 78 L.T. 688.
27 A judge in the division from 1883, and President 1891–1892.
28 Parke B. also expressed himself mystified in R. v. Walker, n. 17, p. 90, supra.
29 (1839) 2 Curt. 281, 292–294.
30 [1956] C.L.J. at p. 204, nn. 22–25.
31 10th ed., p. 166.
32 The witness to whom the wife complained was, of course, allowed to speak to injuries on the wife's person she observed. She could not repeat the wife's declarations “being made at some distance of time” after the infliction of the injuries: per Denning and Hodson L.JJ.: [1952] 1 T.L.R. at pp. 1526, 1528. Had the court regarded details as never admissible even of a prompt complaint, they would have said so, instead of indicating that it was the delay that was fatal.
33 Phipson criticises Berry v. Berry severely: op. cit., para. 357. Cross interprets the passage in Phipson as expressing the view that the case had been overruled, and agrees: op. cit., p. 198.
34 R. v. Camelleri [1922] 2 K.B. 122.Google Scholar
35 n. 67, p. 84, supra.
36 The Times, 6 June, 1898.
37 [1956] C.L.J. at p. 210.
38 [1923] 2 D.L.R. 379, 382–385, per Stuart J.A. In English law, a different view is now taken: Chan Wai-Keung v. R. [1967] A.C. 160—the question of admissibility is purely for the judge, though the question of weight is for the jury—a case on a confession, but the same principle would apply to a dying declarationGoogle Scholar.
39 Ibid. pp. 389, 390.
40 Ibid. p. 391.
41 Ibid. p. 386, per Stuart J.A., Hyndman J.A. concurred with him.
42 n. 46, p. 82, supra.
43 Ibid. p. 386.
44 Cross considers that the preponderance of authority is against extension to all crimes of violence: op. cit., p. 200.
45 Sibley (1904) 20 L.Q.R. 86–87, quoting Bracton.
46 n. 38, p. 92, supra.
47 n. 88, p. 99, nn. 91, 92, p. 100, infra.
48 n. 63, p. 73, supra. See also the three United States cases referred to in [1957] C.L.J. 65–66, n. 30, where one charged with murder was allowed to prove as part of the res gesta threats of personal violence made against him by the deceased, to determine who was the aggressor.
49 This is not assuming the question to be resolved by the jury, but merely deciding to admit the evidence for what it is worth.
50 S. 89.
51 S. 9 (4).
52 Ninth Report, Evidence, Cmnd. 3145 (1966), para. 7.Google Scholar
53 A Guide to Law and Practice under the Criminal Justice Act 1967, p. 32.
54 Ibid. p. 10.
55 Carlisle [1967] Crim.L.R. 613, 621.
56 Napley, op. cit., p. 4.
57 36 L.J.P.C. 51, 57. The C.C.A. sometimes consider that the second trial should take place before a different judge: R. v. Quinn & Bloom [1962] 2 Q.B. 245, 253.Google Scholar
58 Ibid. A substantial minority of the Law Reform Committee on Hearsay Evidence in Civil Proceedings “regard as particularly valuable oral evidence in answer to questions which are not leading questions”: para. 36, Thirteenth Report, Cmnd. 2964 (1966).
59 [1909] 2 K.B. 14.
60 R. v. Lawrence (1909) 25 T.L.R. 374.Google Scholar
61 R. v. Beere (1843) 2 M. & R. 472. In R. v. Ashe (1845) 1 Cox 150, the evidence was recapitulated by the witness, suggesting that he was examined de novo.
62 Notable British Trials, p. 166. Counsel for Rau objected that the twelfth juryman would not have seen the demeanour, but counsel for Monsson and Smith raised no objection. Professor Keeton, editor of this volume, makes no comment.
63 (1903) 67 J.P. 267, 268.
64 Criminal Justice Act 1965, s. 1. Under Criminal Justice Act 1925, s. 15, the number was 10.
65 [1909] 2 K.B. 14, 20.
66 (1869) 12 W.R. 3.
67 Act II of 1855, s. 31, re-enacted in s. 157, Indian Evidence Act, Act I of 1872.
68 See n. 46, p. 82, and n. 41, p. 92, supra.
69 12 W.R. 3, 4.
70 Amended by Magistrates’ Courts Act 1952, 6th Sched., and the Criminal Procedure (Attendance of Witnesses) Act 1965, 2nd Sched.
71 [1938] 3 All E.R. 130, 132.
72 R. v. Cook [1959] 2 Q.B. 340—Criminal Evidence Act 1898Google Scholar, s. 1 (f) (ii) (61 & 62 Vict. c. 36). R. v. Herron [1966] 2 All E.R. 26—Larceny Act 1916Google Scholar, s. 43 (1) (b) (6 & 7 Geo. 5, c. 50).
73 (1927) 29 Ll.L.R. 141, 153.
74 (1926) 25 Ll.L.R. at p. 535.
75 Ibid. at p. 543. The case of Dean supports Atkin L.J. A great many intelligent people firmly believed in Dean. He had an open, frank manner, bore a good character and possessed physical courage, yet attempted a cold-blooded murder: (1941) 57 L.Q.R. 85, 86, 111—Sir Carleton Allen.
76 In a speech in the H.L.: (1813) 25 Hansard Parl.Deb. 207.
77 Campbell, , Lives of the Chief Justices, Vol. 3, p. 211.Google Scholar
78 [1909] 2 K.B. at p. 21. Committal proceedings were concerned, and there Lord Goddard C.J. regards leading questions as permissible: R. v. Walker [1950] 2 All E.R. 911.Google Scholar
79 Wigmore says that the reason for the prohibition of leading questions has no application to the relation between judge and witness: op. cit., Vol. III, para. 784, p. 159. In R. v. Lawrence, n. 60, p. 95, supra, Jelf J. held a leading question permissible as there was no objection by counsel. The Court of Appeal of Ontario accept the power of the judge to ask leading questions: Connor v. Township of Brant (1914) O.L.R. 274, 282.Google Scholar
80 (1909) 2 Cr.App.R. 215.
81 The regularity of the proceedings prevents free interposition, so that acquiescence cannot be deduced from silence: R. v. Mitchell (1892) 17 Cox 503, 508; R. v. Lees (1907) 71 J.P.J. 342.Google Scholar Moreover he denied her allegation, for what this is worth: see n. 77, p. 85, supra.
82 [1963] 1 Q.B. 857, 868.
83 Ibid., relying on R. v. Treacy [1944] 2 All E.R. 229.Google Scholar
84 n. 69, p. 96, supra.
85 [1963] 1 Q.B. 857, 868.
86 Op. cit., p. 13.
87 Ibid. p. 1.
88 [1967] Crim.L.R. 645; R. v. McKay [1967] N.Z.L.R. 139.Google Scholar
89 Ibid. 152.
90 Ibid. 150. In his Cambridge lecture, under the auspices of the Institute of Criminology, on 24 January 1968, Professor Telford Taylor of the University of Columbia referred to scepticism in the United States over truth drugs: some hold that while they release inhibitions, they also stimulate the imagination. I am indebted to him and to Mr. S. Kreisberg of the same university, now a research student in this university, for the following case, which may allay some of these doubts. One Kidwell was tried in Topeka, Kans., for the murder of his wife, who had been shot four times through the heart. K. had two shot wounds in his chest. At the first trial, the jury accepted the prosecution case that K. had shot his wife, and then tried to commit suicide, and convicted him of first degree murder. K.'s own recollections of the incident were blurred. A second trial was ordered because of certain errors. The defence sent K. to S., a psychiatrist, who administered sodium amobarbital, not a truth drug, and put the results on video-tape. Judge Carpenter, as the first piece of business, allowed the jury to see this tape. K. was seen lying on a couch, and then re-experiencing being shot by his wife, and finally getting the gun and shooting her. The charge was reduced to first degree manslaughter, and K. pleaded guilty. S. remarked afterwards that never in a million years could he have had the eloquence and skill in testifying demonstrated by that tape: Time Magazine, 29 December 1967.Google Scholar Yet if the common law is strictly interpreted, this graphic and cogent evidence would be excluded, as not falling within a recognised exception to the rule against self-serving statements.
91 n. 38, p. 92, supra.
92 [1958] P. 93. See Jolowicz in [1958] C.L.J. 145.
93 n. 72, p. 97, supra.
94 Lutterell v. Reynell (1670) 1 Mod. 282.
95 n. 51, p. 93, supra.