Nothing is certain to excite the interest of a lawyer more than a good trial story. The same must have been so in 1836 and 1837 when Charles Dickens published The Pickwick Papers and the story of a suit for breach of promise bought by a widow against Mr Pickwick; Bardell v Pickwick. In 1918, over eighty years after its publication, Theobald Mathew1 wrote an historical explanation of The Pickwick Papers which put the story of the trial and its procedural peculiarities into perspective. His explanation revealed that the story was partially based upon a famous case then being contested; having adopted the impressive opening statement of one of the real life counsel.2 The Judge in Bardell v Pickwick and at least one counsel were caricatures of men living and working at the bar and bench in England at the time. His thorough explanation leaves only one question unanswered: why is it that the witnesses were allowed to remain in court while others gave evidence?
Somewhat surprisingly, the answer is that there was then and is today no rule of law requiring a witness to remain outside of Court until called to give evidence.3 In the case of Moore v Lambeth County Court Registrar, Lord Justice Edmund Davies said that it was entirely in the discretion of the trial judge whether or not witnesses are ordered out of court until they are called to give evidence.4 The Lord Justice expressed his own personal preference for having the witnesses out of court, but acknowledged that some judges ‘prefer witnesses to remain in court so that they may observe their reaction when they hear the evidence of other witnesses.’5
Edmund Davies LJ also referred to the rule that, if the court orders that witnesses should be out of court and a witness nevertheless remains in court, the trial judge has no right to refuse to hear the evidence of the witness. The Court of Appeal expressed the same view in the 1967 judgment of R v Thompson6 where there was no intention to call the defendant’s wife to give evidence. She was present in court throughout the trial. After the defendant had given evidence, it was proposed to call the wife; but the court refused to allow this. On appeal it was held that the court had no power to refuse to allow a witness to be called on the ground that the witness had been present in court.7
The practice of separating witnesses during questioning was first documented in the story of Susanna and Daniel contained in the Apocrypha scriptures.8 In the story Susanna was accused of adultery by elders of the church. Daniel examined the witnesses separately and asked them the name of the type of tree under which they had seen the act performed. The elders’ accounts were not consistent and, as a result, Susanna was judged to be innocent.9 This could just as easily have been a story illustrating the inherent unreliability of identification evidence.10 The purpose of excluding witnesses from the court has not changed since that time. The practice remains as an effort to deprive a later witness of the opportunity of shaping his or her testimony to correspond to that of an earlier witness.11 The practice is said to be an inheritance from Germanic Law.12 In fact, today in German civil proceedings each witness gives evidence separately in the absence of all witnesses who are to be examined.13
At the times both Dickens and Mathew were writing, not only was there no rule requiring witnesses to be out of court, but there was no clearly established practice. This is demonstrated through an examination of the cases concerning witnesses heard between 1821 and 1842. Although it may seem to be only ‘an interesting irrelevancy’, it is of some note that some of the men caricatured in The Pickwick Papers were the very barristers and judges arguing about the state of the law with respect to witnesses during the period. For example, Mr Mathews notes in his article that not much is known about Serjeant Bompas, [14] while it true that no biographical notes have been published about him, we do learn something about him as a lawyer from the following cases.15
In 1821, the case of The Attorney General v Bulpit16 held it to be an inflexible rule that, in the Court of Exchequer, a witness who is present in Court during a trial when he had been ordered out of court cannot be examined. In that case, the Lord Chief Baron held it was so even though the witness was a person not originally intended to be examined. The rule was confirmed on appeal.17
Lord Chief Justice Best considered the issue of witnesses in court seven years later in 1828. In the case of Taylor v Lawson18 an application was made by Serjeant Andrews, for the plaintiff, to give directions for the rest of the witnesses to go out of Court.19 Best LCJ granted the application saying:
“I confess that for one I wish the same rule prevailed here as prevails in the Houses of Lords and Commons, where no witnesses are allowed to be present except the person who is under examination.” 20
In the case of Rex v Colley,21 heard in 1829, witnesses were ordered out of court ‘on the usual notice that they would not be examined if they remained.’ One witness was called to produce a plan of the premises and remained in court after he was called in. He heard other witnesses examined. Serjeant Bompas and Jardine for the prisoners objected to this witness then being called to give evidence. The prosecution argued that it would be unjust and mischievous to deprive the Crown or a prisoner of a witness’s testimony because of a mistake made by the witness. Littledale J consulted with Gaselee J22 and ruled that it depended on the circumstances of the case whether such a witness ought to be examined. In this case the witness was received.
Beamon v Ellice, Esq,23 heard in 1831, was a negligent driving case where the claim was for damage to a carriage after its collision with a cart. The witnesses had been ordered out of court but after a short time one witness had returned to court and heard the evidence of some of the other witnesses. Erskine,24 for the defendant, objected to her being examined. Gurney and Greaves, for the plaintiff, argued that she should be allowed to give evidence only on a distinct point and not touch on any areas touched on by other witnesses. Their argument was that the ‘object of sending witnesses out of court is, that they may not all say just the same thing, because they have heard one another examined, which cannot be the case where the witness speaks to entirely new facts.’25
Erskine argued that, if the rule26 is relaxed, then there will always be a question of whether the witness comes to speak to a new fact. Mr Justice Taunton27 gave leave to move to enter a nonsuit in case he was wrong and allowed the witness to be examined. He commented that the difficulty with allowing witnesses to prove new facts if they had remained in court is that they may be induced to change their evidence to prove a fact left unproved by a witness they had heard. He commented further, however, that ‘there is always a great deal of time lost by sending the witnesses out of Court; and I think, that, in general, it does not answer any good purpose.’
In Regina v Gaynor,28 a perjury case heard in 1834, it was proposed to call the Clerk of Petty Sessions to give evidence. Torrens J held, upon objection by counsel for the defence, that he would “exercise a sound discretion” in refusing to allow a person to be examined who had been present in Court when the questions to be put to the witness were raised.
In 1835, Baron Alderson29 decided the case of Cook v Nethercote30 in which after all witnesses were ordered out of court, one Hon Capt. Stanley was called for the defendant. Thesiger,31 for the plaintiff, asked him if he had not been in court after the order to leave was made. Baron Alderson said that that would be no ground for rejecting his evidence. ‘It would be only a matter of observation respecting his testimony.’32 In his judgment, Baron Alderson cited the case of Doe d. Good v Cox33 where the Court of King’s Bench ordered a new trial because witnesses should have been heard even though they remained in court after an order for witnesses to leave was made.
In January 1837, Baron Alderson heard the case of Southey v Nash34 in which Thesiger acted for the defendant. There, Platt for the plaintiff in a case of negligent driving of a horse, applied for the defendant’s witnesses to be ordered out of court after he had already closed the case for the plaintiff and addressed the jury. Thesiger submitted that it was too late to order witnesses out of court as all of the plaintiff’s witnesses had been in court throughout the trial. Baron Alderson held that either party had the right, at any moment, to require that unexamined witnesses leave the Court.
Regina v Murphy and Douglas,35 heard in December 1837, was a case concerning a conspiracy between Messrs Murphy and Douglas to incite persons to resist payment of church-rates. The Crown asked that a witness be excused while a legal argument regarding his evidence was heard. Serjeant Bompas appearing for the defendant, Douglas, argued that the other side had no right to order a witness out of court. Coleridge J held that:
“it is almost a matter of right for the opposite party to have a witness out of Court while a discussion is going on as to his evidence.”36
In 1842, Erskine J heard the case of Chandler v Horne37 where it was submitted by Hodges, for the defendant, that a witness who remained in court after an order was made ought not be examined. Erskine J held that while it was formerly thought to be within the discretion of the judge whether such a witness should be examined, it is now settled that the judge has no right to exclude the witness.
‘He may commit him for the contempt, but he must be examined; and it is then a matter of remark on the value of his testimony that he has wilfully disobeyed the order.’38
While this is the state of the law in Australia and most Common Law jurisdictions today, the ordinary practice of legal representatives is to instruct their witnesses to remain out of court until they are called to give evidence. It is for this reason that the issue of witnesses in court rarely arises today. Certainly, it was the least of Mrs Bardell’s worries over 170 years ago, but perhaps if Mr Pickwick’s counsel had availed himself of an application for an order for the witnesses to remain outside the court, his fortunes would have improved.
Susan Anderson
Footnotes
1. Bardell v Pickwick, (1918) 34 LQR 320
2. 34 LQR 320 at 324
3. Moore v Lambeth County Court Registrar [1969] 1 WLR 141; [1969] 1 All ER 782 (CA). The United States Court of Appeals, Second Circuit ruled in the 1950 case of US v Chiarella et al 184 F.2d 903 that the exclusion from the courtroom of witnesses who have not testified is discretionary (at 907): see P Tillers, Wigmore on Evidence, 3rd Ed, Vol VI, Little Brown and Co, 1983. Sequestration of Witnesses, § 1837 for other jurisdictions which adhere to the same rule.
4. Moore v Lambeth County Court Registrar at 142
5. Ibid
6. [1967] Crim LR 62. It is interesting that Moore v Lambeth County Court Registrar was decided in 1968 and the court did not refer to a case that was directly on point, R v Thompson decided just two years earlier in 1966.
7. Ibid.
8. Apocrypha verses 36-64
9. It seems the possibility that the elders were not looking at the tree, but at the act, was not considered.
10. Domican v The Queen [1992] 173 CLR 555
11. Huddleston v Commonwealth of Virginia 61 S E 2d 276, 279 citing P Tillers, Wigmore on Evidence, 3rd Ed, Vol VI, Little Brown and Co, 1983, sec 1838 p 352
12. P Tillers, Wigmore on Evidence, 3rd Ed, Vol VI, Little Brown and Co, 1983, Chapter 63. Sequestration of Witnesses, § 1837 at page 456
13. Comparative Analysis Of The Reform Of Civil Procedure, German Report, P Gottwald, in The International Symposium on Civil Justice in the Era of Globalization, Tokyo, August 1992, Collected Reports at 147
14. Bardell v Pickwick, (1918) 34 LQR 320 at 323. Serjeant Bompas was the real life source of Serjeant Buzfuz who appeared for Mr Pickwick: Matthew at 323.
15. Serjeant Bompus appeared in two of the highlighted cases. In one of them he argued that a witness who remained in court should not be examined because he had heard the evidence of other witnesses. Six years later, in another case, he was equally certain that there was no right for a party to apply to have witnesses ordered out of court.
16. 9 Price 4; 147 ER 2
17. The Attorney General v Bulpit 9 Price 4; 147 ER 2
18. 3 Car. & P 541; 172 ER 538
19. Taylor v Lawson 3 Car. & P 541; 172 ER 538
20. It was common at the time for prominent barristers to enter parliament during the course of their career. Lord Chief Justice Best did so in 1802 and was appointed a judge in 1816.
21. M. & M. 330, 173 ER 1178
22. Gaselee J was the real life source Mr Justice Stareleigh who tried Bardell v Pickwick: Mathew at 323. He was appointed a judge of Common Pleas in 1824 and resigned at the end of Hilary Term in 1837. This would not appear to have any relation to the publication of The Pickwick Papers during 1836 and 1837. Gaselee J, despite being portrayed in a rather less than flattering way by Charles Dickens, was known for this legal knowledge and was respected for his careful work when at the bar: see Foss, E, A biographical Dictionary of the Judges of England, 1066- 1840, London, John Murray, 1870 at 292
23. 4 Car. & P. 585; 172 ER 836
24. This is Thomas Erskine, the fourth son of the celebrated advocate. Mr Erskine was famous in his own right as a barrister for his ability to detect ‘a latent non-suit’ in his opponent’s pleadings: see: Foss, E, A biographical Dictionary of the Judges of England, 1066-1840, London, John Murray, 1870 at 239
25. Beamon v Ellice at 587; 837
26. That witnesses cannot be examined if they remain in court after an order for witnesses to go out.
27. Mr Justice Taunton is said to have been of excellent reputation as a brilliant legal mind: Foss at 650
28. 1839-40 1 Crawford & Dix Reports 142, 145
29. Baron Alderson was one of the judges summoned to assist the House of Lords in the case of Cadell v Palmer (1 CL & Fin 373) which is the case identified in the tradition of the Chancery Bar with the suit of Jarndyce v Jarndyce by Dickens: Manson, E, Builders of Our Law, 2nd Ed, 1904 at 98. In hearing that case over 2 years he was in the company of Justices Gaselee, Tauton and Littledale mentioned above.
30. 6 Car & P 740; 172 ER 1443
31. Mr Thesiger went on to become Lord Chancellor (Lord Chelmsford). He had planned after his admission to the bar to return to the West Indies to practice. It was his pupil master, Godfrey Sykes, who encouraged him to ‘try his fortune’ in England. This turned out to be good advice. He was Lord Chancellor between Feb 1858 and April 1859 and again July 1866 to February 1868.
32. Cook v Nethercote at 743; 1444
33. Cited in 1 Glifford’s Southwark Election Cases, p 114
34. 7 Car & P 632
3 8 Car & P 297; 173 ER 502
36. Regina v Murphy and Douglas 8 Car & P 297, 307; 173 ER 502, 507
37. 2 M. & Rob. 423; 174 ER 338
38. Ibid
