Source: pp 182-183, The Art of the Advocate (1993) by Richard Du Cann QC.
Less fortunate was a Mr Barker in 1896, who suddenly found that all his furniture had been sold by a man named Shalless through a firm of auctioneers. Counsel for Mr Barker was con- fident he could prove his case against both Shalless and the auctioneers for 'converting' the furniture (selling it against his will and keeping the proceeds) by cross-examining Shalless. Mr Shalless was of the same opinion, and although present in court during the hearing, he declined to give evidence on his own behalf. Determined not to be foiled by this ruse[,] counsel then applied to the Judge for leave to call Shalless himself. [1.] The Judge pointed out that if he had wanted to call Shalless he should have done so as part of his own case. He went on:
... in granting the Plaintiff's application ... I should be making a precedent which would, if established, lead to an improper amount of laxity in the conduct of the plaintiff's case. [End of 1.]
This is a convoluted way of saying that the advocate must make up his mind before the case begins how he is going to conduct it: that he cannot wait until he sees which way the wind is blowing and then call extra evidence. The basis of the rule is more fundamental. A defendant, whether in criminal or civil courts, is entitled to know the whole of the evidence proving the case against him before he is obliged to answer it. That is the principle. Practice demands its enforcement if only because trials last quite long enough already. If purely confirmatory evidence in rebuttal were allowed, it would be difficult to prevent evidence in surrebuttal (evidence called by a defendant in rebuttal of rebuttal evidence) being called with equal frequency, and it would be difficult to see the end of any trial.
- I do not understand 1. Mr Barker's counsel had already asked Shalless to give evidence, but Shalless declined. So why did the Judge still blame Mr Barker's counsel?