"Historically, the law of evidence has been judge-made law, a body of rules developed piecemeal over the years. According to Professor Tapper, the development of the modern rules of evidence “really begins with the decisions of the common law judges in the seventeenth and eighteenth centuries”.

For many years, statutory reforms have been engrafted onto the common law structure of the rules, producing what one commentator described well over 50 years ago, with some asperity, as “a pile of builders’ debris”. Despite successful efforts to codify the law of evidence in other parts Of the Commonwealth, resistance to the production of a comprehensive set of statutory rules has persisted in the United Kingdom and, to a large extent, in the Commonwealth Caribbean. Even in jurisdictions such as Antigua and Barbuda, The Bahamas, Barbados and St. Kitts and Nevis, where there have been significant reforms of the law of evidence within the last 20 years, there is no provision which gives a true codifying statute the hallmark of exclusivity identified by Simmons CJ (in reference to the Barbados Evidence Act 1994) in DPP’s Reference No 1 of 2001:

An essential feature of a codifying statute is that it expressly states that there must not be reliance upon any prior enactments or decisions of courts after the commencement date of the codifying statute.

The common law of evidence therefore continues to be a fruitful field for development. R v. Turnbull, for instance, the case which has arguably had the most profound effect on the criminal trial in the last 40 years, was purely a product of the common law. In that case, as is well known, a specially convened full court of the Criminal Division of the English Court of Appeal, drawing its inspiration from the past experience of the judges, laid down guidelines on the law of identification which have stood the test of time. Another good example is R v. Galbraith, in which the English Court of Appeal, again in an exercise of deliberate judgment, altered (some would say curbed) the approach of judges to no case submissions in criminal cases. And lastly in this list of random examples, chosen purely because of their ready familiarity, there is R v. Gilbert, in which the Privy Council, some would say in an act of judicial legislation; abolished the rule of practice requiring a mandatory corroboration warning to the jury in relation to the evidence of complainants in sexual cases.

This paper is concerned with four such areas, viz, dock identification, good character directions, confessions and hearsay evidence. In the first three areas, the developments to which reference will be made have all been fuelled by decisions of the Privy Council on appeal from our several jurisdictions. In the fourth, I will refer to a recent decision of the Caribbean Court of Justice (‘the CCJ’). Modern judicial developments in each of these areas, I will want to suggest, reaffirm the continued vitality of the common law of evidence, even in an era when it is to legislative action that we instinctively look for significant reform."