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It endeavours to po4git out clearly the changes effected by the Act in the conduct of criminal trials and proceedings, and to suggest the solution of doubts that have already arisen, or that may arise, as to the construction of some of its provisions. When the Act passed, it occurred to me that as I had had considerable experience of the practical working of a somewhat similar Act passed in 1891 in New South Wales (where I held during several years the office of Crown Prosecutor, and was therefore familiar with many of the points which had arisen under that Act) I could write some notes on the English Act which might prove useful to those who had to make acquaintance with its provisions. The present book is far larger than was ori- ginally intended, but, although the new Act is short, it makes so radical a change in the criminal procedvire of this coimtry that I felt it worth while to discuss its main provisions at some length. Wide as may seem to be the range of the ques- tions discussed in the notes, an endeavour has been fl2 Digitized by Microsoft® ir Preface. made to restrict them to matters immediately connected with the provisions of the Act. I have attempted not to shirk any point of doubt or difficulty that has occurred to my mind, entertaining, as I do, a lively sense of the per- plexity caused to the reader by the familiar expedient of the author who adjusts judicial differences by interposing the conjunction "but" between two irreconcilable head-notes ! Frequent references have been made throughout to the works on Criminal Evidence of Archbold and Roscoe, as I have assumed that any one wishing to make use of this book in Court will have one of those works at hand to refer to. The appearance in the Appendix of a number of Colonial enactments is calculated, I fear, to cause a shock to the practical lawyer, which even the explanation that the author is a humble member of the Society of Comparative Legislation will not prevent. But the interest in these enact- ments is not purely historic. In this as in other matters legislation in the Colonies has preceded that in England, and reference to these Acts may become necessary in order to follow the decisions of the Privy Council, and even the arguments that may be raised in other Courts. 7, Fig Teeb Ootjet, A. R. B. The Temple. Octoher, 1898. Digitized by Microsoft® CONTENTS. — *— PAOE Table or Cases -------- vii Table of Statutes --------xL Abbeevxations ---- -.-_xv INTEODUCTOET CHAPTEE 1—12 THE CEIMmAL EVIDENOE ACT, 1898. SEOTioN 61 & 62 Vict. cap. 36. 1. Competency of -witnesses in criminal cases - - - 13 2. Evidence of person charged - - - - 35 3. Eight of reply -- 35 4. Calling of wile or husband in certain cases - - 39 6. Application of Act to Scotland - - - - - 49 6. ProTision as to previous Acts - - - - r 50 7. Extent, commencement, and short title - - - 54 Schedule -- --- -..55 Table oe Oefebtces referred to in Schedule to Act - 58 APPENDIX. List oe Enactments - ----- 63 1. Criminal Evidence Act, 1898 — 61 & 62 Vict. 0. 36. Text of Act, with notes of reference only ------ 65 2. Evidence Act, 1851 — 14 & 15 Vict. c. 99, ss. 2, 3, 4, 18 - 69 3. Evidence Amendment Act, 1853 — 16 & 17 Vict. c. 83, ss. 1, 2, 3 - - - - 71 4. Married Women's Property Act, 1882 — 45 & 46 Vict. c. 75, ss. 12, 16, 24 (in part), 26 - 72 6. Married Women's Property Act, 1884 — 47 Vict. c. 14, Preamble, and s. 1 - 74 6. Prevention of Cruelty to Children Act, 1894— 57 & 58 Vict. c. 41, ss. 1, 2, 3, 11, 12, 13, 14, 15, 16, 17, 23, 24, 25, and Schedule - - - 75 Digitized by Microsoft® VI Contents. List of En actments— cowfomaei. ^^™ SCOTLAND. 7. Evidence (Scotland) Act, 1853 — 16 Vict. c. 20, ss. 3, 5 86 8. Evidence Eurtlier Amendment (Scotland) Act, 1874 — 37 & 38 Vict. c. 64, ss. 2, 3 - - - - 87 9. Criminal Procedure (Scotland) Act, 1887 — 50 & 51 Vict. c. 35, ss. 24, 27, 35, 36, 53, 67, 69, 74, 75 - ... 88 CANADA. 10. Canada Evidence Act, 1893— 56 Vict. c. 31, ss. 2, 4, 5, 6 - - - - 93 NEW SOUTH WALES. 11. Criminal Law Amendment Act, 1883 — 46 Vict. No. 17, s. 470 - - - 95 12. Criminal Law and Evidence Amendment Act, 1891 — 55 Vict. No. 5, s. 6 - ... 96 NEW ZEALAND. 13. Criminal Code Act, 1893— 57 Vict. No. 66, ss. 398, 399, 400, 401, 403 - - 97 14. Lidictable Offences Summary Jurisdiction Act, 1894 — 58 Vict. No. 47, s. 8 99 QUEENSLAND. 15. Criminal Law Amendment Act, 1892 — 56 Vict. No. 3, s. 3 - - - - - 101 SOUTH AUSTKALIA. 16. Evidence Amendment Act, 1882 — 45 & 46 Vict. No. 245, Preamble, and ss. 1, 2, 3, 4, 5 - - 102 17. Evidence Further Amendment Act, 1888 — 51 & 62 Vict. No. 435, bb. 2, 3, 4 (in part) - - 103 VICTOBLA. 18. Crimes Act, 1891— 56 Vict. No. 1231, ss. 34, 35 - - - - 105 INDIA. 19. Code of Criminal Procedure, 1882 — Act No. X. of 1882, s. 342 .... 107 INDEX. Digitized by Microsoft® TABLE OF CASES. — ♦ — A. PAGE Att.-Gen. v. SiUem (1864), 10 H. L. Ca. 704 ; 10 Jur. N. S. 456 55 B. Bartlett, E. v. (ISST), 7 C. & P. 832 28 Beard, E. ■;;. (1837), 8 0. & P. 142 34 Bemey v. Norwich (Bishop of) (1867), P. 0. 36 L. J. Eco. 10 - 51 Boaler v. E. (1888), 21 Q. B. D. 284 ; 57 L. J. M. 0. 85 ; 59 L.T. 554; 16 Cox, CO. 488 42 Britfieton, E. v. (1884), 12 Q. B. D. 266; 53 L. J. M. 0. 83; 50 L. T. 276 ; 15 Cox, 0. C. 431 73 Burder v. O'NeiU (1863), 9 Jur. N. S. 1109; 2 New E. 551 ; 9 L. T. 232 51 0. Castro, alias Orton, E. v. (1874), Stmuning-up of Oookbum, C. J., Vol. 2, 720—722 8 Chantler, E. v. (1891), 12 New South Wales Law Eeports, 116- 34 Cole, E. V. (1810) (ah the Judges), 1 Phil. 'End. 10th ed. 508 ; Arch. 248 ; Eoso. 87 30 F. Frederick, E. v. (1737), 2 Str. 1095 47 Frost, E. V. (1840), 9 C. & P. 129 38 Fuidge, E. ■;;. (1864), L. & C. 390 ; 33 L. J. M. C. 74 - - 40 Q. Guthrie, E. v. (1870), L. E. 1 C. C. E. 241 ; 39 L. J. M. C. 95; 22L. T. 485 41,42 H. Hunt, E. V. (1811), 2 Camp. 583 42 Digitized by Microsoft® viii Table of Cases. J. PAGE John, E. V. (1790), 1 Leach, 504, n. ; 1 East, P. C. 357 - - 44 K. Kops, E. V. (1893), 14 New South Wales Law Reports, 150 - - - - - - 4, 6, 10, 19, 21, 24, 96 Kops V. E., (1894) A. 0. 650; 6 E. 522; 70 L. T. 890; 58 J. P. 668 - 6, 19, 69, 71, 96 •Latham v. E. (1864), 33 L. J. M. 0. 197; 5 B. & S. 635; 9 Cox, C. C. 516 - - - 40 Locker, E. v. (1804), 5 Esp. 107 - ' - - - 47 London (Lord Mayor of), E. v. (1886), 55 L. J. M. G. 118 ; 54 L. T. 761 ; 16 Cox, C. 0. 77 ; 60 J. P. 711 - - - 46, 48 Longworth v. Telverton (1867), L. E. 1 H. L. So. 218 ; 4 Macq. 746; 10 Jur. N. S. 1209; IIL. T. 118 . - - - 87 M. Makin, E. v. (1893), 14 New South Wales Law Eeports, 1, 548 30 Makin v. Att.-Gen. of New South Wales (P. C), (1894) A. 0. 57 ; 63 L. J. P. 0. 41 ; 6 E. 373; 69 L. T. 778 ; 17 Cox, 0. C. 704 - - - 30 Migotti V. Colvill (1879), 4 C. P. D. 233 ; 48 L. J. C. P. 695 ; 40 L. T. 747 ; 14 Cox, C. C. 305 64 Monroe v. Twistleton (1802), Peake, Add. Gas. 221- - - 26 N. Nelson, E. v. (1893), 10 New South Wales Weekly Notes, 44 - 96 Norwich (Bishop) v. Pearse (1868), L. E. 2 A. & E. 281 ; 37 L. J. Eco. 90 - - 51, 70 0. Oakes v. Turquand (1867), L. E. 2 H. L. 325 ; 36 L. J. Ch. 949--- ...... _45 Oddy, E. V. (1851), Court for C. C. E., 2 Den. 0. 0. 264; T. & M. 593 ; 5 Cox, C. C. 210 ; 20 L. J. M. 0. 198 - - - 30 Ormes v. Beadel (1860), 2 De G. E. & J. 333 ; 30 L. J. Ch. 1-45 Orton, alias Castro, E. v. (1874), Summing-up of Cockbum, 0. J., Vol. 2, 720—722 8 Digitized by Microsoft® Table of Cases. ix p. PAGE Pamenter, E. v. (1872), 12 Cox, 0. 0. 177 - - - - 28 Paul, E. V. (1890), 0. 0. C. E. 25 Q. B. D. 202 ; 59 L. J. M. 0. 138; 62L. T. 845 40,41,42,43 Payne, E. v. (1872), L. E. 1 0. 0, E. 349 ; 41 L. J. M. 0. 65 ; 12 Cox, C. C. 118 17 Perry, E. v. (1794), cited Ey. & M. 332, and 2 Lew. C. C. 280 - 46, 49 E. Eeese Eiver Silver Mining Co. •;;. Smith (1869), L. E. 4 H. L. 64; 39 L.J. Ch. 849 45 Eeeve v. Wood (1864), 5 B. & S. 364 ; 34 L. J. M. C. 15 ; 11 Jul. N. S. 201 ; 10 Cox, C. C. 680 46 S. Scott V. Commonwealth (1893), 42 Amer. State Eep. 371- 26, 27 Scott V. Sebright (1886), 12 Pro. D. 21 ; 56 L. J. Pro. 11 ; 57 L. T. 421 - - 45, 46 Serjeant, E. v. (1826), Ey. & M. 352 - - - 47, 48, 49 Shinmun, E. v. (1882), 15 Cox, C. C. 122 - - - 34, 38 Simons, E. v. (1834), 6 C. & P. 540 28 Smith, E. V. (1896), 17 New South Wales Law Eeport, 104 - 96 Smithies, E. v. (1832), 5 C. & P. 332 28 Stephens, E. v. (1866), L. E. 1 Q. B. 702 ; 35 L. J. Q. B. 251 ; 14 L. T. 593 2 Stoop's Case (1799), Addison, E. (Pennsyl.) 381 - - 44 T. Taylor, E. v. (1869), L. E. 1 C. C. E. 194; 38 L. J. M. C. 106; 1 Cox, C. C. 261 ; 4 F. & P. 511 42 Tomlinson v. BuUock (1879), 4 Q. B. D. 230 ; 48 L. J. M. C. 96;40L. T. 459 54 W. Wakefield, E. v. (1827), 1st Count, 2 Lew. C. 0. 7, 287; Trial pub. by Murray, 4, 143—155, 257 - - 45, 46, 47, 48 Wakefield, E. v. (1827), 3rd Count, 2 Lew. C. C. 10, 287; Trial pub. by Murray, 7, 257 . - - . . 44 Warner v. Murdock (1877), 4 Ch. D. 750; 46 L. J. Ch. 121; 35 L. T. 748 56 Digitized by Microsoft® X Table of Cases. PAGE Watkin v. HaU (1868), L. E. 3 Q. B. 396 ; 37 L. J. Q. B. 125; 18L. T.561 42 Wealand, E. v. (1888), 0. C. 0. E. 20 Q. B. D. 827 ; 57 L. J. M. 0. 44; 68L. T. 782 40,41,42,43 Wmeor v. E. (1866), L. E. 1 Q,. B. 390 ; 7 B. & S. 490 ; 35 L. J. M. 0. 161; 10 Oox, 0. 0. 276; 14 L. T. 567 - - - 17 Woodcock, E. V. (1789), 1 Leaci, 500 44 WrigM V. Hale (1860), 6 H. & N. 227 ; 30 L. J. Ex. 40- - 65 T. Telverton (or Longworth) v. Telverton (1867), L. E. 1 H, L. Sc. 218 ; 4 Macq. 746 ; 10 Jur. N. S. 1209 ; 11 L. T. 118 - 87 Yore, E. v. (1839), 1 Jebb & Symes (Q. B. Ir.), 563 - 46, 47 Young, E. V. (1851), 5 Cox, 0. 0. 296 49 Digitized by Microsoft® TABLE OF STATUTES. PAGE 6 Geo. 4, c. 83 (Vagrancy Act, 1824), ss. 3, 4, 5 - -55, 56, 58 S. 22 - - - 56 7 & 8 Geo. 4, 0. 66 47 3 & 4 Vict. 0. 86 ((DhuTcli Discipline Act, 1840) . - . 51 8 & 9 Vict. c. 83 (Poor Law (Scotland) Act, 1845), s. 80-55, 56, 58 9 & 10 Vict. c. 95 (County Courts Act, 1846), s. 83 - - 71 11 & 12 Vict. c. 42 (Indictable Offences Act, 1848), s. 17-81, 82, 83 S. 18- 15, 33 11 & 12 Vict. c. 43 (Summary Jurisdiction Act, 1848), ss. 12, 14 33 12 & 13 Vict. c. 69 (Indictable Offences (Ireland) Act, 1849) - 82 14 & 16 Vict. 0. 93 (Petty Sessions (Ireland) Act, 1851) - 82, 83 14 & 15 Vict. c. 99 (Evidence Act, 1851), s. 2- 19, 51, 69, 70, 71 S. 3 - 61, 69, 70 S. 4 - - 61, 70 S. 18 - - - 70 15 & 16 Vict. c. 76 (Common Law Procedure Act, 1852), s. 61 41 16 Vict. c. 20 (Evidence (Scotland) Act, 1863), s, 3 - - 86 S. 4 - - 86 S. 5 - - 85 16 & 17 Vict. c. 83 (Evidence Amendment Act, 1863), s. 1 26, 69, 71 S. 2 26, 71 S. 3 25,26, 27, 73 18 & 19 Vict. c. 126, s. 4 33 24 & 25 Vict. 0. 100 (Offences against the Person Act, 1861), S. 47- 43 S. 48 66, 56, 68 Digitized by Microsoft® xii Table of Statutes. 24 & 25 Vict. c. 100— continued. PAGE S. 49 55, 56, 5» S. 50 56, 56, 58 S. 51 55, 56, 58 S. 52 - - - 43, 55, 56, 58 S. 53 - - - 55, 56, 58 S. 54 55, 56, 58 S. 55 ... 55, 66, 58 S. 58 66 28 & 29 Vict. c. 18 (1865), s. 2 - - - 35, 36, 37 S. 9 36 28 & 29 Vict. c. 104 (Crown Suits Act, 1865), s. 34 - - 52 29 & 30 Vict. c. 109 (Naval DiscipUne Act, 1866), s. 65 50, 53 S. 92- - 53 32 & 33 Vict. c. 68 (Evidence Furtlier Amendment Act, 1869), S. 1 - - - - 70, 71 36 & 37 Vict. c. 66 (Judicature Act, 1873), ss. 16, 32 - - 62 37 & 38 Vict. c. 64 (Evidence Furtlier Amendment (Scotland) Act, 1874), s. 2 - - -87 S. 3 87 38 & 39 Vict. c. 94 (Oflences against the Person Act, 1875), s. 2 66 39 & 40 Vict. c. 36 (Customs Consolidation Act, 1876), s. 259- 62 39 & 40 Vict. c. 79 (Elementary Education Act, 1876) - 79 40 & 41 Vict. c. 14 (Evidence Act, 1877) - 16, 25, 43, 44, 50, 52 41 & 42 Vict. c. 16 (Factory and Workshop Act, 1878), s. 67 78, 79 41 & 42 Vict. 0. 78 (Education (Scotland) Act, 1878) - - 79 42 & 43 Vict. c. 49 (Summary Jurisdiction Act, 1879), s. 11 - 83 42 & 43 Vict. c. 19 (Inebriates Act, 1879) - - . 79, 80 44 & 45 Vict. c. 58 (Army Act, 1881), s. 70 - - 60, 53, 64 S. 156 (1), (3) - 53, 54 45 & 46 Vict. c. 75 (Married Women's Property Act, 1882), S. 12 - - - - 57, 59, 72, 73, 74 S. 16 57, 59, 73, 74 S. 24 (part) - - - - 59, 73 S. 26 - - - - - 57, 73 47 Vict. c. 14 (Married Women's Property Amendment Act, 1884) - - 67,73,74 47 & 48 Vict. c. 19 (Summary Jurisdiction over Children (Ireland) Act, 1884), s. 4 83 Digitized by Microsoft® Table of Statutes. xiii PAGE 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885) 56, 67 S. 2 56, 59 S. 3 59 S. 4 - - - - 41, 56, 58, 59 S. 5 56, 59, 60 S. 6---- .-60 S. 7 60 S. 8 60 S. 9 41 S. 11 60 S. 13 - - .... 60 S. 14 - .... 57 S. 15 67 S. 19 56 S. 20 - - - - . . 16 50 & 51 Vict. c. 35 (Orinmial Procedtire (Scotland) Act, 1887), S. 24 - - - - 50, 88 S. 27 - - - - - 50, 88 S. 35 - .... 50, 88 S. 36 - ... 49, 50, 89 S. 53 50, 90 S. 67 - - - 30, 32, 90 S. 69 ... 50, 91 S. 74 - .... 92 S. 75 - 92 51 & 52 Vict. c. 19 (Inebriates Act, 1888) - - - 79, 80 51 & 52 Vict. c. 64 (Law of Libel Amendment Act, 1888), s. 9 16 52 & 63 Vict. c. 63 (Literpretation Act, 1889), s. 3 - - 64 S. 36 (2) - - 64 57 & 68 Vict. c. 41 (Prevention of Cruelty to Children Act, 1894) 56, 57 8. 1 57, 60, 75 S. 2 .... 57, 60, 76 S.3 78 S.11 79 S. 12 - 80 S.13 81 S. 14 81 S. 15 82 Digitized by Microsoft® xiv Table of Statutes. 57 & 58 Viot. c. 41 — continued. page S. 16 83 S. 17 83 S. 23 83 S. 24 84 8,25 84 S. 26 57, 85 S. 27 57, 85 Schedule - - 79, 80, 81, 82, 83, 85 61 & 62 Vict, c, 22 (Statute Law Eeyision Act, 1898) - - 57 Digitized by Microsoft® ( XV ) ABBREVIATIONS. Arch Arohljold's Law and Practice relating to Pleading and Eyidence in Criminal Cases. 2l8t ed., by W. Bruce, Esq. 1893. Eosc Eosooe's Digest of the Law of Evidence in Criminal Cases. 11th ed., by Horace Smith, Esq., and Glilbert George Kennedy, Esq. 1890. Stephen's Dig. Evid.... A Digest of the Law of Evidence. By the late Sir James Fitzjames Stephen, Bart., K.O.S.I., D.C.L., formerly a Judge of the High Court of Justice, Queen's Bench Division. 4th ed. 1893. Tay. Evid Judge Pitt Taylor's Treatise on the Law of Evidence as administered in England and Ireland, with Illustrations from Scotch, Indian, American, and other Legal Systems. 9th ed. (in part re-written), by G. Pitt- Lewis, Esq., Q.O. 2 vols. 1895. Digitized by Microsoft® Digitized by Microsoft® THE 1898. miEODUCTOEY CHAPTEE. The Criminal Evidence Act, 1898, short and simple as its provisions appear, effects a change in procedure which goes to the root of our system of trial in criminal oases, the consequences of which must necessarily be f ar reaching. The Act enables every person charged with an offence, and the wife or husband of such person, to be a competent witness for the defence at every stage of the proceedings.^ As a general rule, none of these persons may be called as a witness except for the defence, and that only upon the application of the person charged.^ In certain oases, however, the wife or husband of the person charged may be called as a witness either for the prosecution or defence and without the consent of that person.' Those cases are:-T- (1) "Where the charge is for one of the offences against a woman or girl under the Criminal Law Amendment 1 S. l,post, p. IS.' 2 S. 1 {a), post, p. 13. ' S. 4, post, p. 39. B. b Digitized by Microsoft® 2 Criminal Evidence Act, 1898. Act, 1885; or for a similar offence under tlie Offences against the Person Act, 1861 ; or for an offence committed by a wife or husband against the property of the other Tmder the Married Women's Property Act, 1882 ; or for cruelty or a similar offence under the Prevention of Cruelty to Children Act, 1894 ; or for desertion under the Vagrancy Act or the Poor Law (Scotland) Act.* (2) Where the wife or husband of the person charged may be called as a witness without the consent of that person at common law, i.e., mainly in oases of bodily injury inflicted by the one on the other.' (3) In proceedings for a nuisance to a public highway, etc., or for enforcing a civil right only — ^which though criminal in form are in substance civil ^ — under the Evidence Act, 1877, which is not to be affected by the present Act.' The Act will also not apply to proceedings in Courts Martial, unless specially applied.* The Act applies from its commencement to all criminal proceedings^ in England and Scotland^", but not in Ireland." * S. 4 (1), post, p. 39. See and *, post, p. 53. Up to the pre- Schedinle to Act, post, p. 65 ; and sent time (8th Octoher, 1898), the Table of OSeaoes, post, pp. 58 — 61. Act has not heen specially applied » S. 4 (2), post, p. 39 ; see note ^ to Oonrts Martial, but the Earl of on p 44 Halsbuiy, L.O., has stated in the 6 See 'per Mellor, J., in S. v. ?Tf -."^ ^a^ *^^* ^^• ^^^° Stephms{im), L. E. 1 Q. B. 702, fP^^V ^""^ ^ ^ ^^5 t^- ^ ^^® at 708 ; 35 L. J. Q. B. 251 ; 14 ^ff^ "*, t'^%?°"^« ^ A™^ T T rp ggg let August m TtBtes of 2nd August, ' S. 6 (1), post, p. 50, and note \ 9 g. e (l), post, p. 50. post, p. 62. 10 See s. 5, post, p. 49. 8 S. 6 (2), post, p. 50, and notes ^ " S. 7 (1), post, p. 64. Digitized by Microsoft® Introductory Chapter. 3 This Act, therefore, will bring ahout a complete change in almost all our criminal proceedings. Similar enactments have heen in force for several years in some of the Colonies, and various points as to the working of the new law, which have been the subject of discussion there, will no doubt shortly attract attention in this country. In New South Wales, an Act of 1891 enacts that " Every person charged with an indictable offence, and the husband or wife of the person so charged, shall be compe- tent but not compellable to give evidence." ^^ It does not attempt, like the new English Act, to limit the right of comment upon the fact of those persons abstaining from giving evidence ; nor the right of cross-examination, beyond enacting that the person charged shall not be cross-examined as to previous character or antecedents without the leave of the Judge, i' In other Colonies, on the other hand, comment is expressly forbidden to be made either by the Judge or by counsel for the prosecution,^* while the Legislature of one Colony expressly provides that "no presumption of guilt shall be made from the fact " of an accused person, or the wife or husband of such person, " electing not to give evidence." ^^ These three questions — {a) whether any inference of guilt may be drawn from the abstention of the accused, or the wife or husband, from giving evidence ; {b) whether '' N. S. W. Criminal Law and Canada, s. 4 (2), post, p. 93 ; New Evidence Amendment Act of 1891, Zealand, s. 400, post, p. 98, and B. 6, post, p. 96. 8. 8, post, p. 100 ; Victoria, s. 34 (3), 13 71- J Po^^t P- l^S- -'**'*• 16 See South AustraUan Act, " See e. g. the enactments in 1882, ss. 1, 3, post, pp. 102, 103. 62 Digitized by Microsoft® 4 Criminal Evidence Act, 1898. oonunent on such abstention may fairly be made ; and (c) whether any special restrictions should be placed on cross-examination — are the three crucial matters which arise imder the new procedure. They wlU be found to be discussed at considerable length in the notes to this Act. Of the two first questions, the more important {a) , to which indeed the second (i) is ojnly subservient, is as to whether any inference of guUt may be drawn from the fact that the ac- cused, or the wife or husband of the accused, has abstained from giving evidence. One may assume that it was not intended that the present Act should in any way affect the fundamental principle of our common law, that it is incum- bent on the prosecution to prove the guilt of an accused person beyond all reasonable doubt. At the same time there is grave danger that unless the working of the Act be closely watched, it may be allowed to infringe upon this wise and just principle. If the evidence for the prosecution be weak, if the prisoner be a person of unprepossessing appearance, and he fails to deny his guilt on oath, it is so easy to suggest that the prisoner's silence is tantamount to an admission, and that he has thereby supplied the original deficiencies of the evidence for the prosecution.^^ 1^ See on this subject the observations of Mr. Justice Matthew Henry- Stephen in S. T. Xops (1893), 14 N. S. W. Law Reports, at 198—199, 200—201, cited post, pp. 22—24. The following note by that learned Judge's distinguished relative, the late Sir J. F. Stephen, although wholly inapplicable, we may trust, to EngHshmen, seems to have some bearing on this question ; — "During the discussions which took place on the Indian Code of Criminal Procedure in 1872, some observations were made on the reasons which occasionally lead native poUce officers to apply torture to prisoners. An experienced civil officer observed : — ' There is a great deal of laziness in it. It is far pleasanter to sit comfortably ia the shade rubbing red Digitized by Microsoft® Introductory Chapter. 5 Where counsel for the prosecution is allowed to com- ment on the fact that a prisoner has not given evidence, he has in every case a double line of comment available. If the prisoner does not give evidence, the jury are in- vited to regard the evidence for the prosecution as virtually admitted : if the prisoner does give evidence, counsel can depreciate its effect by dwelling on the obvious temptation the prisoner is under to make out his innocence at the expense of the truth. The new English Act expressly forbids such comment by the prosecution, but it leaves it open to be made by the presiding Magistrate or Judge, It wiU be said that such a matter as this of comment may safely be left to the dis- cretion of a Judge. Upon this, however, one observation may be made. True, as it fortunately is, that such a matter may well be left to the discretion of a Judge of the High Court, who has learned by long experience to exercise a sound judgment, and to treat men on their trial vdth leniency and consideration, the discretion is not con- fined to Judges of the High Court, but is given to any Magistrate who presides at a trial by jury ; and the witty saying of Bishop Blomfield is applicable to others than curates, that " when a thing is left to a man's discretion it is also left to his indiscretion." This question of conunent was very fully discussed in the judgments delivered by the Full Court of New South pepper into a poor devil's eyes than to go about in the sun hunting up evidence.' This was a new view to me, but I have no doubt of its truth" • Stephen's General View of the Criminal Law of England, 2nd ed., p. 188, note K Digitized by Microsoft® 6 Criminal Evidence Act, 1898. Wales, constituted of seven Judges, in the case of R. v. Kops (1893)," which, came before the Privy Council on appeal in 1894.1' The judgments of the two dissentient Judges — ^Mr. Justice Innes and Mr. Justice Stephen, both Judges of great experience — ^though they cannot be cited as cor- rectly interpreting the New South Wales enactment, clearly indicate the dangers of unrestricted comment, even from the Bench, and the pressure that has, in fact, been found to be placed by such comment upon accused persons to deny at aU hazards their guilt, even where such denial involves committing perjury. With regard to cross-examination, an attempt is made by the present Act to restrict the cross-examination of the person charged by providing that he shall not be asked " any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that wherewith he is then charged; or is of bad character," ^^ unless (among other things) " the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor, or the witnesses for the prosecution." ^^ It appears to the writer that in the large majority of cases where the defence raised does not depend on mistaken identity or on the prisoner's insanity, his defence wUl almost invariably "involve imputations on the character " of the prosecutor or of one or more of the witnesses for the prosecution, and that, unless some strin- gent rules for restricting such cross-examination are laid " 14 N. S.W. Law Reports, 150. 668. " Kops v. iJ., (1894) A. 0. 650 ; is S. 1 (/.), post, p. 14. 6 E. 622; 70 L. T. 890 ; 58 J. P. »» S. 1 (/.), {a), post, p. 16. Digitized by Microsoft® Introductory Chapter. 7 down, the restriction intended by this clause will in prac- tice prove illusory. When the Bill was before the House of Lords on the 1st August, 1898, Lord Eussell of Killowen, 0. J., expressed his opinion that the limitation of cross- examination contained in the Bill was not logically defensible, and that it would be impossible to maintain any kind of artificial safeguard as to the cross-examination of an accused person.^^ Meanwhile it is generally recog- nized that the House of Commons would not have passed the Bill if they had supposed that the restriction on the cross-examination of a prisoner was illusory, and that he was to be cross-examined like an ordinary witness. Many of those who have advocated the examination of prisoners on oath appear to have overlooked the essential difference between the cross-examination of a prisoner and that of any other witness ; and it is often assumed that there is no difference in principle between the two. The difference, however, between the cross-examination of a prisoner on his trial and that, say, of a defendant in a civil action appears to the present writer to be wide and im- ^1 " Once ttey admitted an accused person to be accepted as a witness, it seemed to him it was impossible logically to maintain any kind of artificial safeguards as to the cross-examination of that witness, and for this reason. The object was, after all, to get at what were the total force and effect of the statement the man made, and they could not get a true appreciation of its force and effect unless he was subject to the ordinary test of cross-examination. He was, therefore, strongly of opinion that the Kmitation of cross-examination which the Bill proposed was not logically defensible and could not be long maintained. He admitted that the point raised a very important question, but he should be unwil- ling, especially at this period of the Session and at this stage, to raise any topic which might imperil the passing of a Bill which he belieyed would operate for good as far as it went. ' ' — Speech of Lord Eussell of Killowen ; see Debate in the House of Lords in The Times, 2nd August, 1898. Digitized by Microsoft® 8 Criminal Evidence Act, 1898. portant, arising from the essentially different nature of the issue which the jury have to try in a criminal case from that to be tried in a civil action. According to oux rules of evidence, questions put in eross-examiaation are divisible into two main classes. Either they must relate to facts in issue, or to facts relevant, or deemed to be relevant, thereto ; ^^ or, secondly, they must tend to test the witness's " accuracy, veracity, or credibility ; or to shake his credit by injuring his character."^' Almost any question addressed to those matters must be permitted.''* But if all questions of the second class, although they may be absolutely irrelevant to the charge preferred, are to be allowed in cross-ex- amining a prisoner on his trial, it seems obvious that the answers to them, if unsatisfactory, cannot but seriously affect the finding of the jury as to his guilt or innocence. Take, for instance, the famihar rule of evidence in criminal cases, that a prisoner being charged with haviug committed a specified offence, evidence of his bad character, or of his having committed some other offence which may seem to render it probable that he committed the offence charged, is generally inadmissible. This, according to ''2 See Stephen's Digest of Evid., and barely relevant to tte oredi- Art. 127, Srded. 128 ; 4th ed. 143. bility of the -witness, seeS.Y.Orton, ^^ Stephen's Digest of Evid., Art. ^ff ^^*"' X^"*^ ,^0'^%'0'iF 129, 3rd^d. 129 ;V ed. 144'. ir^^L^ot^^L'^'T^.'U '^ Tor a striking illustration of Stephen's Dig. Evid., ubi supra. the povrerlessneas of a Judge in a As to the power now given to a cnminaX case to prevent counsel in- Judge in civil cases to disallow slating on a witness being com- vexatious and irrelevant questions, pelled to answer a scandalous ques- see R. S. C. 1883, Order 36, tion wholly irrelevant to the issue rule 38. Digitized by Microsoft® Introductory Chapter. 9 Sir J. F. Stephen, " is one of the most charaoteristio and distiactive parts of the English law of evidence ; for this is the rule which prevents a man charged with a particular offence from having either to sutmit to imputations which in many cases would be fatal to him, or else to defend every action of his whole life in order to explain his con- duct on the particular occasion." ^* It is this rule which, more than any other, constitutes the difference between evidence admissible in English trials and evidence admitted in French trials. If questions which might properly be put to a defendant in a civil action tending to test his credibility, or to shake his credit by injuring his character, were to be allowed to be put to every person charged with a criminal offence, it seems clear that this distinctive rule of our law of evidence must cease to operate ; and that if the character of a witness for the prosecution — ^possibly an alleged accomplice — be assailed, the prisoner on going into the witness-box may be cross-examined as to every incident of his past Hf e. Can it be contended that the introduction before a jury of such matters of prejudice would not entirely alter the aspect of criminal proceedings in British Courts of justice, infringing as it would upon one of those main principles which lie at the root of our criminal procedure, the observance of which has proved to be one of the greatest safeguards of a fair trial ? There is another danger which those who have advo- cated the change in our law have appeared to minimise, S6 Stephen's Dig. Evid., 3rd ed. 148 ; 4th ed. 163. Digitized by Microsoft® 10 Criminal Evidence Act, 1898. namely, the difficult position in which, it not tuifrequently places the Judge. He will sometimes find himself in a dilemma, and have to elect either not himself to test the prisoner's evidence and thus endeavour to elicit the truth ; or, at the serious risk of detracting from the dignified ad- ministration of justice, to enter into an altercation with the prisoner. After some experience of the change in the law in New South Wales, the late Sir Greorge Innes — one of the most fair-minded of men — who had presided at criminal trials for many years, said : " A Judge who, in his anxiety to discover the truth, thinking — as I fear many Judges do — that a prisoner giving evidence for himself is in the great majority of cases only adding perjury to the crime charged in the indictment, and who therefore wishes to expose the prisoner's He, is led into asking the prisoner- witness various questions, and is soon led thereby iuto a departure from strict impartiality. Sir James Stephen says : ^^ 'It would he most injurious to do anything which could diminish the absolute impartiality of the Judges ; and no man who examines an unwilling wit- ness is reaUy quite impartial.' " 2' Such is believed to be the nature of some of the diffi- culties and dangers that beset the new procedure which this Act has introduced. It is conceived that no good purpose is to be served by ignoring them. To be fore- warned is to some extent to be forearmed. Experience ^ Stephen's General View of the Criminal Law of England, 1863 p. 201. ^ ' " B. T. Kops (1893), 14 N. S. W. Law Reports, at 196. Digitized by Microsoft® Introductory Chapter. 11 shows that they are real, and they cannot be lightly brushed aside. They haye to be recognized and guarded against if the great reputation we have acquired for the fair and dignified conduct of our criminal trials is to be maintained. In a country like ours, where it has long been the tradition of the Bar that not only the Judge but the counsel for the prosecution should discharge his duties in a judicial spirit and with scrupulous fairness and mode- ration, it cannot be doubted that all existing means will be taken, and if necessary new means devised, to 'secure to every person charged with an offence a fair and impartial trial, in order that we may thus preserve so characteristic and admirable a feature of our criminal procedure. Digitized by Microsoft® Digitized by Microsoft® CEIMIML EYIDENCE ACT, 1898. 61 & 62 YicT. Cap. 36. An Act to amend the Law of Evidence. [12th August, 1898.] Be it enacted bj the Queen's most Excellent Majesty, by and witb the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows : — 1. Every person charged with an offence, Com- and the wife or husband, as the case may be, witnesses of the person so charged, shall be a competent ^sTs"^^ witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.' Provided as follows : — {a.) A person so charged shall not be called as a witness in pursuance of this Act except upon his own application : {h.) The failure of any person charged with an ofEence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecu- tion^ : ( 50 & 51 Vict. 0. 35, s. 36; see ante, p. 49; and see tliis and other sections of that Act printed poat, pp. 88 et seqq. 6. Provision as to previous Acts.] — (1.) This Act shall apply to all criminal proceedings, notwithstanding any enactment in force at the commencement of this Act,^ except that nothing in this Act shall affect the Evidence Act, 1877.2 Digitized by Microsoft® 68 tx. (2.) But this Act shall not apply to proceedings in Coiirts Martial unless so applied — {a) as to Courts Martial under the Naval Discipline Act, by Greneral Orders made in pursuance of section sixty-five of that Act ;^ and {b) as to Courts Martial under the Army Act by Eules made in pursuance of section seventy of that Act.* ' Ante, p. 60. ^ 40 & 41 Vict. c. 14 ; see ante, p. 52. 3 29 & 30 Vict. c. 109, s. 65 ; see ante, p. 53. * 44 & 45 Vict. c. 58, s. 70 ; see ante, p. 53. 7. Extent, commencement, and short titk.'] — (1.) This Act shall not extend to Ireland. (2.) This Act shall come into operation on the expira- tion of two months from the passing thereof.^ (3.) This Act may be cited as the Criminal Evidence Act, 1898. ' Ante, p. 54. SCHEDULE. Enactments referred to.^ Sesaion and Chapter. Short Title. Enactments referred to. 5 Geo. 4, 0. 83 .... 8 & 9 Viot. 0. 83 . . 24&25Viot. 0. 100. 45 & 46 Vict. u. 76. 48 & 49 Viot. u. 69. 57 & 68 Viot. 0. 41. The Vagrancy Act, 1824. The Poor Law (Scotland) Act, 1845. The Offences against the Person Act, 1861. The Married Women's Property Act, 1882. The Criminal Law Amendment Act, 1885. The Prevention of Cruelty to Children Act, 1894. The enactment punishing a man for neglecting to maintain or deserting his wife or any of his family.' Section eighty.' Sections forty-eight to fifty-five.* Section twelve and sec- tion sixteen.' The whole Act.^ The whole Act.' 4, and notes thereto, ante, pp. 39 et seqq. ' Ante, p. 56. « Ante, p. 57. ' Ante. T). 57. ' 4»7*« ■« k7 ^ Ante, p. 56. See also s, ' Ante, p. 56. ' Ante, p. 56. Ante, p. 57. Digitized by Microsoft® Evidence Act, 1851. 69 THE EVIDENCE ACT, 1851. 14 & 15 Vict. c. 99. {Lord Denman's Act.) Passed 7th. August, 1851. Came into operation 1st Noyember, 1851 : s. 20. 2. Parties to be admissible mtnesses}1 — On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any Court of Justice, or hefore any person having hy law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose hehalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable^ to give evidence, either viva voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding. ' This was the first enactment which enabled parties to an action to give evidence. If a husband and wile were Joint parties, they were thus enabled to give evidence ; otherwise the wile or husband 01 either party was still precluded (until 1853 : see s. 1 of Act of 1853, post, p. 71) from giving evidence on the ground of interest : see 2 Tay. Evid. pp. 877—9. * " Compellable " means " compellable by process of law " : Kopa V. B., (1894) A. 0. 650, at 653, P. C. ; 6 E. 522; 70 L. T. 890; 58 J. P. 668. 3. Nothing herein to compel person charged ivith criminal offence to give evidence tending to criminate himself, Sfcy] — But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable^ to give evi- dence for or against himself or herself, or shall render any Digitized by Microsoft® 70 Appendix. person compellaUe to answer any question tending to criminate himself or herself,^ [or shall in any criminal pro- ceeding render any husband competent or compeUahle to give evidence for or against his ^yif e, or any wife competent or compellable to give evidence for or against her hiis- band.*] ' This proviso does not exclude the application of s. 2 to penal proceedings in Ecclesiastical Courts : see note ' to s. 6 of the Criminal Evidence Act, 1898, ante, p. 51. " I.e., "compeUable by process of law" : see note ^ to s. 2, iwpra. ' The provision that no witness need criminate himself only declares the undoubted rule of the common law. Eor Judge Taylor's criticism on this declaration, see 2 Tay. Evid. 7th ed. note ^, on p. 1133; 9th ed. note ', on p. 878. * The words in square brackets are now rendered ineflective by the Criminal Evidence Act, 1898, ss. 1, 4 (1), 6 (1), ante, pp. 13, 39, 50. 4. Not to apply to proceedings in consequence of adultery,' or to actions for breach of promise 7\ — [Nothing herein con- tained shall apply to any action, stiit, proceeding, or biU in any Court of common law, or in any Ecclesiastical Court, or in either House of Parliament, instituted in consequence of adultery, or to any action for breach of promise of marriage.^] ' S. 4 was repealed by s. 1 of the Evidence Further Amend- ment Act, 1869 (32 & 33 Vict. c. 68) ; but as to the effect of this section on the construction of ss. 2 and 3, supra, see Bishop of Norwich v. Pearse (1868), coram Sir E. PhilKmore, L. E. 2 A. & E. 281, at 285; 37 L. J. Ecc. 90, cited ante, p. 51. 18. Act not to extend to Scotland.'] — This Act shall not extend to Scotland.^ 1 See certain enactments amending the law of evidence in Scot- land, printed jpos*, pp. 86 et seqq. Digitized by Microsoft® Evidence Amendment Act, 1853. THE EVIDENCE AMENDMENT ACT, 1853. 16 & 17 YicT. c. 83. Passed 20tli August, 1853. Came into operation llth July, 1853 : s. 6. 1. Husbands and wives of parties to he admissible witnesses.] — On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any Court of justice, or before any person having hy law or by consent of parties authority to hear, receive, and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action, or other proceeding may be brought or instituted, or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viv§, voce or by deposition according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding.^ ' This was the first enactment in England which rendered the husbands and wives of the parties (unless they were themselves joint parties, as to which see note ^ to s. 2 of the Act of 1851, ante, p. 69) competent witnesses in the High Courts. They had been rendered competent witnesses in the County Courts seven years before, in 1846 (9 & 10 Vict. c. 95, s. 83). They were now made " competent and compellable to give evidence " in any Court (except as mentioned in s. 2, infra), i.e., " compellable by process of law" : Kops v. S., (1894) A. C. 650, at 653, P. C; 6 E. 522; 70 L. T. 890 ; 58 J. P. 668. 2. Exception in criminal cases."] — ^Nothing herein shall render any husband competent or compellable^ to give evidence for or against his wife, or any wife competent or compellable ^ to give evidence for or against her husband, in any criminal proceeding, [or in any proceeding insti- tuted in consequence of adultery.^] ' As to the meaning of "compellable," see note ^ to preceding section. * The words in square brackets were repealed by the Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68), s. 1. Digitized by Microsoft® 72 Appendix. 3. Husbands and wives not compelled to disclose communi- cations.'] — No husband shall be compellable to disclose any communication made to bim by his wife during the mar- riage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.^ ^ See the Criminal Evidence Act, 1898, b. 1 {d), ante, p. 14; and the rule as to disclosing communications between husband and wife considered ante, pp. 25 et seqq. MAEEIED WOMEN'S PEOPEETT ACT, 1882. 45 & 46 Vict. c. 75. Passed 18th August, 1882. Came into operation 1st January, 1883 : s. 25. 12. Remedies of married woman for protection and security of separate property}] — Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the same remedies^ and redress by way of criminal proceedings, ior the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indictment or other proceeding under this section it shall be sufficient to allege such property to be her property ; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding : ' Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any Digitized by Microsoft® Married Womenh Property Act, 1882. 73 act done by the husband while they were living together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the hus- band when leaving or deserting, or about to leave or desert, his wife. ^ Ss. 12 and 16 of this Act are referred to in the Schedule to the Criminal Evidence Act, 1898, ante, p. 55 ; and the effect of their provisions is stated in the Table of Offences, ante, p. 59. Accord- ingly, in any criminal proceeding, when a person is charged with an offence under s. 12 or s. 16 of this Act, the wife or husband of subh person may be called as a witness either for the prosecution or defence, and without the consent of the person charged. ^ Sir J. P. Stephen has pointed out that to describe a criminal pro- ceeding as a "remedy " is to use a very peculiar phrase : Stephen's Digest of Evidence, 4th ed., note * on pp. 121 — 122. ' In consequence of the defective wording of this section — ^which after providing that "in any indictment or other 'proceeding" under it the property may be laid in the wife, enacts that " in any pro- ceeding " a husband or wife shall be competent to give evidence (omitting the words "indictment or other") — and also in conse- quence of the defective wording of s. 16, after the decision in B. v. Brittleton (1884), 12 Q. B. D. 266 ; 53 L. J. M. 0. 83 ; 50 L. T. 276 ; 15 Cox, 0. 0. 431 — ^which decided that the husband was not made a competent witness against Ms wife upon her trial, where she was indicted jointly with her paramour for stealing his money and goods — the amending Act of 1884 ( post, p. 74) was passed to remedy these defects. It is apprehended that the enactments in ss. 12 and 16 of the Act of 1882, so far as they relate to the competency of a wife or husband in criminal proceedings, and also s. 1 of the Act of 1884, are now overridden by s. 4(1) of the Act of 1898, ante, p. 39 ; see s. 6 (1), and note ^ thereto, ante, p. 60. 16. -Act of wife liable to crimiiial proceedings. '\ — A wife doing any act with respect to any property of her husband, which, if done by the husband with respect to property of the wife, would make the husband Kable to criminal pro- ceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband.^ > As to the competency of the husband to give evidence in a prosecution under this section, see note ' to s. 12, avpra, and the Act of 1884, post, p. 74. 24. Interpretation of terms.'] . . . The word "property" in this Act includes a thing in action. 26. Extent of Act."] — This Act shall not extend to Scotland. Digitized by Microsoft® 74 Appendix. MAEEIED WOMEN'S PEOPEETT ACT, 1884. 47 YicT. c. 14. Passed 23rd June, 1884. Came into operation on passing. Whereas by section sixteen of tlie Married Women's Property Act, 1882,^ a wife is, under the cireumstances therein mentioned, declared to he Kahle to criminal pro- ceedings by her husband, and a doubt has arisen as to whether the husband is admissible as a witness against his wife in such criminal proceedings, while section twelve of the same Act^ declares that in any proceeding imder that section a husband or wife shall be competent to give evi- dence against each other ; and it is desirable that the said doubt should be removed, and the said Act otherwise amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1 45 & 46 Vict. c. 75, s. 16, cmte, p. 73. ■' S. 12, ante, p. 72. 1,1 Husband or wife competent tritness in criminal proceed- ings under 45 &; 46 Vict. c. 76.] — [In any such criminal proceeding against a husband or a wife as is authorised by the Married Women's Property Act, 1882,^ the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence.] • The Act only consists of two sections, s. 2 giving the short title. S. 1 (the defects of which are poiated out in Stephen's Digest of Evidence, 4th ed. note *, on pp. 121—122) is now in effect repealed by s. 4 (1) of the Criminal Evidence Act, 1898, ante, p. 39. » Ante, pp. 72, 73. ' ' i- Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 75 PEEVENTION OF CRUELTY TO CHILDREN ACT, 1894. 57 & 58 YiCT. c. 41. Passed ITth August, 1894. Came into operation 21st August, 1894 : s. 28 (3). The whole of this Act is included in the Schedule to the Criminal Evidence Act, 1898, ante, p. 55 ; and see Table of Offences, ante, pp. 60-61. Cruelty to CMld/ren. 1. Punishment for cruelty to children.^ — (1.) If any person over the age of sixteen years who has the custody, charge, or care of any child under the age of sixteen years, "wilfully assaults, ill-treats, neglects, ahandons, or exposes such child, or causes or procures such child to be assaulted, ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary sufiering, or injury to its health (including injury to or loss of sight, or hear- ing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a mis- demeanor ; and (a) on conviction on indictment, shall be liable, at the discretion of the Court, to a fine not exceeding one hundred pounds, or alternatively, or in default of payment of such fine, or in addition thereto, to imprisonment, with or without hard labour, for any term not exceeding two years ; and (J) on summary conviction shall be liable, at the discre- tion of the Court, to a fine not exceeding twenty- five pounds, or alternatively, or in default of payment of such fine, or in addition thereto, to impristoment, with or without hard labour for any term not exceeding six months. (2.) A person may be convicted of an ofEence under this section either on indictment or by a Court of summary Digitized by Microsoft® 76 Appendix. iimsdiotion notwitlistanding the deatli of the child in respect of ■whom the offence is committed. (3.) If it is proYed that a person indicted under this section was interested in any sum of money accruable or payahle in the event of the death of the child, and had knowledge that such sum of money was accruing or becoming payahle, the Court, in its discretion, may (a) increase the amount of the fine under this section so that the fine does not exceed two hundred pounds ; or (J) in Heu of awarding any other penalty under this section, sentence the person indicted to penal servi- tude for any term not exceeding five years. (4.) A person shall be deemed to be interested in a sum of money under this section if he has any share in or any benefit from the payment of that money, though he is not a person to whom it is legally payable. (6.) An offence under this section is in this Act referred to as an offence of cruelty. Restrictions on Employment of Children. 2. Restrictions on employment of children.] — If any person — (a) causes or procures any child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, or, having the custody, charge, or care of any such child, allows that child, to be in any street, premises, or place for the purpose of begging or receiving alms, or of inducing the giving of alms, whether under the pretence of singing, playing, performing, offering anything for sale, or otherwise ; or (b) causes or procures any child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, or, having the custody, charge, or care of any such child, allows that child, to be in any street, or in any premises licensed for the sale of any intoxicating liquor, other than premises licensed according to law for pubHo entertainments, Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 77 for the piirpose of singing, playing, or performing for profit, or offering anything for sale, between nine p.m. and six a.m. ; or (c) causes or procures any child under the age of eleven years, or, having the custody, charge, or care of any such child, allows that child, to be at any time in any street, or in any premises licensed for the sale of any intoxicating liquor, or in premises licensed according to law for public entertainments, or in any circus or other place of public amusement to which the public are admitted by payment, for the purpose of singing, playing, or performing for profit, or offering anything for sale ; or {d) causes or procures any child under the age of sixteen years, or, having the custody, charge, or care of any such child, allows that child to be in any place for the purpose of being trained as an acrobat, contor- tionist, or circus performer, or of being trained for any exhibition or performance which in its nature is dangerous, that person shall, on summary conviction, be liable, at the discretion of the Court, to a fine not exceeding twenty-five pounds, or alternatively, or in default of payment of such fine, or in addition thereto, to imprisonment, with or with- out hard labour, for any term not exceeding three months. Provided that — (i.) This section shall not apply in the case of any occasional sale or entertainment the net proceeds of which are wholly applied for the benefit of any school or to any charitable object, if such sale or entertainment is held elsewhere than in premises which are licensed for the sale of any intoxicating liquor but not licensed according to law for public entertainments, or if, in the case of a sale or enter- tainment held in any such premises as aforesaid, a special exemption from the provisions of this section has been granted in writing imder the hands of two justices of the peace ; and (ii.) Any local authority may, if they think it necessary or desirable so to do, from time to time by byelaw Digitized by Microsoft® 78 Appendix. extend or restrict the hours mentioned in para- graph {b) of this section, either on every day or on any specified day or days of the week, and either as to the whole of their district or as to any specified area therein ; and (iii.) Paragraphs (c) and {d) of this section shall not apply in any case in respect of which a licence granted under this Act is in force, so far as that licence extends ; and (iv.) Paragraph (d) of this section shall not apply in the case of a person who is the parent or legal guardian of a child, and himself trains the child. 3. Licences for employment of children.'^ — (1.) A petty sessional Court, or in Scotland the School Board, may, notwithstanding anything in this Act, grant a Kcence for such time and during such hours of the day, and subject to such restrictions and conditions as the Court or Board think fit, for any child exceeding seven years of age, — (a) to take part in any entertainment or series of entertaiaments to take place in premises licensed according to law for public entertainments, or in any circus or other place of pubKc amusement as aforesaid; or (b) to be trained as aforesaid ; or (c) for both purposes ; if satisfied of the fitness of the child for the purpose, and if it is shown to their satisfaction that proper provision has been made to secure the health and kind treatment of the children taking part in the entertainment or series of enter- tainments or being trained as aforesaid, and the Court or Board may, upon sufficient cause, vary, add to, or rescind any such licence. Any such licence shall be sufficient protection to all persons acting under or in accordance with the same. (2.) A Secretary of State may assign to any inspector appointed under section sixty-seven of the Factory and Workshop Act, 1878,^ specially and in addition to any other usual duties, the duty of seeing whether the restric- tions and conditions of any licence imder this section axe Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 79 duly complied witli, and any such inspector shall have the same power to enter, inspect, and examine any place of public entertainment at which the employment of a child is for the time being licensed under this section as an inspector has to enter, inspect, and examine a factory or workshop under section sixty-eight of the same Act. (3.) Where any person applies for a licence under this section he shall, at least seven days before making the application, give notice thereof to the chief officer of police for the district in which the licence is to take effect, and that officer may appear or instruct some person to appear before the authority hearing the application, and show cause why the hcenoe should not be granted, and the authority to whom the application is made shall not grant the same unless they are satisfied that notice has been properly so given. (4.) Where a licence is granted under this section to any person, that person shall, not less than ten days after the granting of the licence, cause a copy thereof to be sent to the inspector of factories and workshops acting for the district in which the licence is to take effect, and if he fails to cause such copy to be sent, shall be liable on summary conviction to a fine not exceeding five pounds. (5.) Nothing in this or in the last preceding section shall affect the provisions of the Elementary Education Act, 1876,2 or the Education (Scotland) Act, 1878.^ 1 41 & 42 Vict. c. 16, s. 67. 2 39 & 40 Viot. c. 79. 3 41 & 42 Vict. c. 78. Power as to Habitual Drunkards. 11. Power as to habitual drunkards.] — Where it appears to the Court by or before which any person is convicted of the offence of cruelty within the meaning of this Act, or of any of the offences mentioned in the Schedule to this Act, that that person is a parent of the child in respect of whom the offence was committed, or is living with the parent of the child, and is an habitual drunkard within the meaning of the Inebriates Acts, 1879 and 1888,^ the 5(2) Digitized by Microsoft® 80 Appendix. Court, in Keu of sentencing suoli person to imprisonment, may, if it thinks fit, make an order for his detention for any period named in the order not exceeding twelve months in a retreat under thg said Acts, the licensee of which is willing to receive him, and the said order shall have the like effect, and copies thereof shall be sent to the local authority and Secretary of State in like manner as if it were an application duly made by such person and duly attested by two justices under the said Acts ; and the Court may order an officer of the Court or constable to remove such person to the retreat, and on his reception the said Acts shall have effect as if he had been admitted in pursuance of an application so made and attested as afore* said ; Provided that — {a) an order for the detention of a person in a retreat shall not be made under this section unless that person, having had such notice as the Court deems sufficient of the iatention to allege habitual drunken- ness, consents to the order being made ; and, {b) if the wife or husband of such person, being present at the hearing of the charge, objects to the order being made, the Court shall, before making the order, take into consideration any representation made to it by the wife or husband ; and (c) before making the order the Court shall, to such extent as it may deem reasonably sufficient, be satisfied that provision will be made for defraying the expenses of such person during detention in a retreat. » 42 & 43 Vict. c. 19; and 51 & 52 Vict. o. 19. Evidence and Procedure. 12. Evidence of accused person.] — [In any proceeding against any person for an offence under this Act or for any of the offences mentioned in the Schedule to this Act, such person shall be competent but not compellable to give evidence, and the wife or husband of such person may be required to attend to give evidence as an ordinary witness Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 81 in the case, and shall be competent but not compellable to give evidence. 1] ' It is conceived that this section is repealed by implication by the Criminal Evidence Act, 1898, a. 6 (1), ante, p. 50. See note ' to that section, ibid. 13. Extension of power to take deposition of child.'] — (1.) Where a justice is satisfied by the evidence ol a registered medical practitioner that the attendance before a Court of any child, in respect of whom an offence of cruelty within the meaning of this Act or any of the offences mentioned in the Schedule to this Act is alleged to have been committed, would involve serious danger to its life or health, the justice may take in writing the deposi- tion of such child on oath, and shall thereupon subscribe the same and add thereto a statement of his reason for taking the same, and of the day when and place where the same was taken, and of the names of the persons (if any) present at the taking thereof. (2.) The justice taking any such deposition shall transmit the same with his statement— {a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper officer of the Court for trial at which the accused person has been committed ; and (S) in any other case to the clerk of the peace of the county or borough in which the deposition has been taken ; and the clerk of the peace to whom any such deposition is transmitted shall preserve, file, and record the same. 14, Admission of deposition of child in evidence.] — ^Where on the trial of any person on indictment for any offence of cruelty within the meaning of this Act or any of the offences mentioned in the Schedule to this Act, the Court is satisfied by the evidence of a registered medical practi- tioner that the attendance before the Court of any child in respect of whom the offence is alleged to have been com- mitted would involve serious danger to its life or health, any deposition of the child taken under the Indictable Digitized by Microsoft® 82 Appendix. OfPences Act, 1848,i or the Indictable Offences (Ireland) Act, 1849,2 or the Petty Sessions (Ireland) Act, 1851,^ or this Act, shall be admissible in evidence either for or against the accused person without further proof thereof — {a) if it purports to be signed by the justice by or before whom it purports to be taken ; and (J) if it is proved that reasonable notice of the intention to take the deposition has been served upon the person against whom it is proposed to use the same as evidence, and that that person or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of cross-examining the child makmg the deposition. 1 11 & 12 Vict. c. 42 ; see s. 17 ; Eosc. 64. 2 12 & 13 Vict. 0. 69. ' 14 & 15 Vict. 0. 93. 15. Evidence of child of tender years.] — (1.) Where, in any proceeding against any person for an offence under this Act or for any of the offences mentioned in the Schedule to this Act, the child in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not in the opinion of the Court understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the Court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth: and the evidence of such child, though not given on oath but otherwise taken and reduced into writing, in "accordance with the provisions of section seventeen of the Indictable Offences Act, 1848,^ or of section fourteen of the Petty Sessions (Ireland) Act, 1851,2 Qj. of section thirteen of this Act, shall be deemed to be a deposition within the meaning of those sections respectively : Provided that — {a) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 83 is eorrotorated by some other material evidence in support thereof impHcating the accused ; and {h) Any child whose evidence is received as aforesaid and who shall wilfully give false evidence shall he liable to be indicted and tried for such offence, and on conviction thereof may be adjudged such punish- ment as is provided for by section eleven of the Summary Jurisdiction Act, 1879,^ in the case of juvenile offenders, or in Ireland by section four of the Summary Jurisdiction over Children (Ireland) Act, 1884,* in the case of children. (2.) This section shall not apply to Scotland. 1 11 & 12 Vict. c. 42, s. 17; see Eosc. 64. 2 14 & 15 Yict. 0. 93, s. 14. 3 42 «& 43 Vict. c. 49, s. 11. * 47 & 48 Vict. c. 19, s. 4. 16. Power to proceed with case in absence of child.'] — Where ia any proceedings with relation to an offence of cruelty within the meaning of this Act, or any of the offences mentioned in the Schedule to this Act, the Court is satisfied by the evidence of a registered medical practi- tioner that the attendance before the Court of any child in respect of whom the offence is alleged to have been com- mitted would involve serious danger to its life or health, and is further satisfied that the evidence of the child is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of the child. 17. Presumption of age of child.'] — Where a person is charged with an offence under this Act, or any of the offences mentioned in the Schedule to this Act, in respect of a child who is alleged in the charge or indictment to be under any specified age, and the child appears to the Court to be under that age, such child shall for the purposes of this Act be deemed to be under that age, unless the contrary is proved. Supplemental. 23. Provision as to parents and as to meaning of " custody, charge, or care."] — (1.) The provisions of this Act relating Digitized by Microsoft® 84 Appendix. to the parent of a child shall apply to the step-parent of the child and to any person cohabiting with the parent of the child, and the expression " parent " when used in relation to a child includes guardian and every person who is by law liable to maintain the child. (2.) This Act shall apply in the case of a parent who being without means to maintain a child fails to provide for its maintenance under the Acts relating to the relief of the poor, in like manner as if the parent had otherwise neglected the child. (3.) For the purposes of this Act — Any person who is the parent of a child shall be pre- sumed to have the custody of the child ; and Any person to whose charge a child is committed by its parent shall be presumed to have charge of the child ; and Any other person having actual possession or control of a child shall be presumed to have the care of the child. 24. Right of parent, 8fe. to administer punishment.'] — Nothing in this Act shall be construed to take away or affect the right of any parent, teacher, or other person having the lawful control or charge of a child to administer punishment to such child. 25. General definitions.] — In this Act unless the context otherwise requires — The expression "local authority" means, as regards any borough in England, the council of the borough ; as regards the city of London, the common council ; as regards the county of London, the county council ; and as regards any other place in England, the district council, and until a district council is established the urban or rural sanitary authority : The expression " chief officer of police " means — in the city of London and the liberties thereof, the commissioner of city police ; in the metropolitan police district, the commissioner of police of the metropolis ; elsewhere in England, the chief constable, or head Digitized by Microsoft® Prevention of Cruelty to Children Act, 1894. 85 constable or other officer, by wbatever name called, having the chief local command of the police ia the police district in reference to -which such expression occurs : The expression " street " includes any highway or other public place, whether a thoroughfare or not : The expression "place of safety" includes any place certified by the local authority under this Act for the purposes' of this Act, and also includes any workhouse or police station, or any hospital surgery, or place of the like kind : The expression " Industrial Schools Acts " means as regards England and Scotland the Industrial Schools Act, 1866,1 and the Acts amending the same. 1 29 & 30 Vict. c. 118. 26. {Contaim special provisions as to the application of the Act to Scotland.) 27. {Contains special provisions as to the application of the Act to Ireland.) SCHEDULE. Any offence under sections twenty-seven,^ fifty-five,^ or fifty-sis' of the OfEences against the Person Act, 1861, and any offence against a child under the age of sixteen years under sections forty-three or fifty-two * of that Act. Any offence under the Children's Dangerous Perform- ances Act, 1879.* Any other offence involving bodily injury to a child imder the age of sixteen years. 1 24 & 25 Vict. c. 100, s. 27 : see Arcit. 792 ; Eosc. 377. ' lUd. s. 65 : c/. Table of Oflences, ante, p. 58 ; and see Arch. 803 ; Eoso. 250. ' Hid. s. 56 : see Arch. 807 ; Eoso. 251. * lUd. s. 52 : see Axch. 823 ; Eoso. 283—4. 42 & 43 Vict. c. 34 : see ss. 3 and 4 ; Aich. 793—4. Digitized by Microsoft® Appendix. SCOTLAND. 16 VIOT. c. 20. Passed 9tli May, 1853. Came into operation on passing. 3, As to examination of witnesses, whether named in the record or not.'] — ^It shall be competent to adduce and examine as a witness in any action or proceeding in Scotland any party to such action or proceeding, or the husband or wife of any party, whether he or she shall be individually named in the record or proceeding or not ; but nothing herein contained shall render any person, or the husband or wife of any person, who in any criminal proceeding is charged with the commission of any indict- able offence, or any offence punishable on summary con- viction, competent or compellable to give evidence for or against himself or herself, his wife or her husband, except- ing in so far as the same may be at present competent by the law and practice of Scotland, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any proceeding render any husband competent or compellable to give against his wife evidence of any matter communicated by her to him during the marriage, or any wife competent or compellable to give against her husband evidence of any matter communicated by bi-m to her during the marriage. 4, [Enactment that the Act should not apply to cases of adultery, divorce, breach of promise, 8fc., repealed by sect. 1 of the Act of 1874: (37 8f 38 Vict. c. 64).] 5. Adducing of party as a witness not to have effect of reference to his oath.] — The adducing of any party as a witness in any cause or proceeding by the adverse party Digitized by Microsoft® Evidence Amendment [Scotland) Act, 1874. 87 shall not have the effect of a reference to the oath of the party so adduced : ^ Provided always, that it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath, and that in all other respects the right of reference to oath shall remain as at present estab- lished by the law and practice of Scotland. ^ As to wlieii a reference to oath, may be had, see Longworth v. Telverton (1867), L. E. 1 H. L. So. 218 ; 4 Macq. 746; 10 Jur. N. 8. 1209 ; 11 L. T. 118. THE EVIDBNCB FUETHEE AMENDMENT (SCOTLAND) ACT, 1874. 37 & 38 Vict. c. 64. Passed 7t]i August, 1874. Came into operation on passing. 2. Parties and their husbands and wives to be witnesses in proceedings on account of adultery.'] — The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding; provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same prooeediag in disproof of his or her alleged adultery. 3. Law as to proof of promise of marriage in declarator of marriage founded thereon, cum copula subsequente, not to be altered.'] — Nothing in this Act contained shall be construed to alter or affect the law of Scotland in force at and prior to the passing of this Act relating to the proof of a promise of marriage in any action of declarator of marriage founded upon promise of marriage, cum copula subsequente. Digitized by Microsoft® 88 Appendix. OEIMINAL PEOCEDTJEB (SCOTLAND) ACT, 1887. 50 & 51 Vict. c. 35. Passed 16th September, 1887. Came into operation 15tli October, 1887 : s. 77. 24. Service.'] — Service of indictment, list of -witnesses and list of productions appended thereto, and all notices or intimations to persons accused, and all citations of wit- nesses, whether for precognition or trial, may be made or given by any macer, messenger at arms, sheriff officer, or officer of police at any place, and where any person accused is in prison at the time of service on him, such service shall be made by any governor, deputy governor, or warder of the prison in which such person is confined. 27. Record copy indictment and list of witnesses.'] — The record copy of the indictment and any extract convictions that are to be produced shall on or before the date of service of the indictment be lodged with the sheriff clerk of the district ia which the Court of the first diet is situated, and a copy of the list of witnesses and a copy of the list of productions shall be lodged with the sheriff clerk of the district in which the Court of the second diet is situated, and where a person accused is indicted for fugitation, the lists shall be lodged in the Justiciary Office. 35. Description of idtnesses.] — The list of witnesses shall consist of the names of the witnesses, with their addresses added, and it shall not be necessary to insert the words " now or lately residing at," or any similar words, and it shall not be an objection to the admissibility of any witness that he has ceased to reside at the address given before the date of the trial, provided that he resided at such address at some time, not being more than six months previous to the date of the trial, and it shaU not be necessary to insert in the list of witnesses the names of any witnesses to the declaration of an accused person or tie names of any Digitized by Microsoft® Criminal Procedure {Scotland) Act, 1887. 89 witnesses to prove tliat an extract conviction applies to an accused person, but witnesses may be examined in regard to these matters without previous notice. 36. Written notice of special defence.] — It shall not be competent for the person accused to state any special defence unless a plea of special defence shall be tendered and recorded at the first diet, or unless cause be shown to the satisfaction of the Court for a special defence not having been lodged till a later day, which must in any case not be less than two clear days before the second diet, and it shall not be competent for the person accused to examine any witnesses or to put in evidence any produc- tions not included in the lists lodged by the prosecutor, unless written notice of the names and designations of such witnesses and of such productions shall have been given to the Procurator Eiscal of the district of the second diet when the case is to be tried in the Sheriff Court, or to the Crown Agent where the case is to be tried in the High Court of Justiciary, at least three clear days before the day on which the jury is sworn to try the case against him, or unless the accused person shall show before a jury is sworn to try the case against him that he was unable to give the full notice of three days in regard to any wit- nesses he may desire to examine or productions he may desire to make, and where this is shown the Court shall give such remedy to the prosecutor by adjournment or postponement of the trial or otherwise as shall seem just, and a copy of every written notice hereby required shall be lodged by the person accused with the sheriff clerk of the district in which the second diet is to be held, or in any case the second diet of which is to be held in the High Court of Justiciary in Edinburgh with the clerk of Justiciary, at or before the second diet, for the use of the Court.i ' In a case where a list of witnesses is required, tie husband or wife of a person charged with an offence shall not be called as a witness for the defence unless notice be given in the terms pre- scribed by this section : s. 5 of the Criminal Evidence Act, 1898, ante, p. 49. Digitized by Microsoft® 90 Appendix. 53. Objections to witnesses.'] — Any objection in respect of misnomer or misdescription of any person named in the in- dictment, or of any witness in the list of witnesses, must be stated before a jury has been sworn to try the ease against a person accused, and no such objection shall be admitted as groimd for postponing any trial or for excluding any wit- ness, unless the accused person shall, at least four clear days before the second diet, give notice to the Procurator Fiscal of the district of the second diet where notice of trial is given for the SherifE Court, or to the Crown agent where notice of trial is given for the High Court of Justiciary, of his inability to discover who such person named in the indictment is, or to find such witness, and shall show that notwithstanding such intimation to the prosecutor he has not been furnished with such additional information as might enable him to ascertain who such person is, or to find such witness in sufficient time to pre- cognosce him before the trial, and where either of these things shall be shown the Court shall give such remedy by postponement, adjournment, or otherwise, as shall seem just. 67. Proving and recording previous convictions.] — Previous convictions against a person accused shall not be laid before the jury, nor shall reference be made thereto in presence of the jury before the verdict is returned ; but nothing herein contained shall prevent the pubKc prosecutor from laying before the jury evidence of such previous convic- tions where, by the existing law, it is competent to lead evidence of such previous convictions as evidence in causa in support of the substantive charge, or where the person accused shall lead evidence to prove previous good character, and it shall no longer be necessary for the jury to return a verdict finding whether previous convictions against the person accused have been proved or not, but where any such conviction is admitted in evidence by the Court, either after a plea of guilty or after a verdict of guilty to any charge to which such previous conviction constitutes an aggravation, the Court shall have power to take such previous conviction into consideration in awarding punish- Digitized by Microsoft® Criminal Procedure {Scotland) Act, 1887. 91 ment, and where any person is oonyicted of any crime, and also of any aggravation by previous conviction, the clerk of the Court in which sentence is pronounced, shaU enter in the record of the trial a statement of the contents of any extract conviction that is put in evidence, setting forth the date, the place of trial, the Court, the nature of the crime, the aggravations accompanying it, if any, and the sentence pronounced ; and where such person is again accused of any offence, in regard to which such conviction may be competently used as an aggravation, a duly certified extract of the conviction setting forth the particulars of previous conviction as above, shall be admissible and suflB.cient as evidence to prove against him all the previous convictions and aggravations therein set forth.^ • See now tie Orimmal Evidence Act, 1898, s. 1 (/), anie, pp. 14- 15, and ilotes *, ', and ^ thereto, ante, pp. 29 — 33. 69. Declarations. J — The declaration of the person accused, the formal parts of which may be written or printed, or partly written and partly printed, duly authenticated by the magistrate examiner as having been emitted before him according to the existing law and practice, shall be received in evidence without being sworn to by witnesses, and it shall not be necessary to insert the names of any witnesses to the declaration in any list of witnesses, either for the prosecution or for the person accused, but it shall be competent for the person accused, before such declara- tion is read to the jury, to adduce as witnesses the persons who were present when the declaration was emitted, and to examine them upon any matters regarding such declara- tion on which it would be competent to examine them according to the existing law and practice, and to move the Court to refuse to allow the declaration to be read on grounds appearing on the face of the declaration itself, or on the ground of what is disclosed in such evidence or on both of these grounds, and where a person accused objects to the declaration, the prosecutor shall be entitled to examine any witnesses in regard thereto, whom the person accused may be entitled to examine as aforesaid. Digitized by Microsoft® 92 Appendix. 74. Bepeall — All statutes, laws, regulations, and usages inconsistent or at variance with the provisions of this Act shall be, and the same are hereby repealed : Provided always, that the same shall continue iu force in all other respects whatsoever. 75. Act not to apply to treason.l — Nothing in this Act contained shall apply to the crimes of treason or rebellion against the sovereign, or shall affect the procedure in any prosecution or trial for treason, or for rebellion against the sovereign, but all procedure in the prosecution and trial of such crimes shall be conducted according to the existing law and practice. Digitized by Microsoft® Canada Evidence Ad, 1893. 93 CANADA. THE CANADA BYIDENOE ACT, 1893. 56 Vict. c. 31. Passed Ist April, 1893. Came into operation 1st July, 1893 : s. 29. 2. Application of Act.'] — This Act shall apply to all criminal proceedings, and to all civil proceedings and other matters whatsoever respecting which the Parliament of Canada has jurisdiction in this behaK. 4. Competency of accused and of wife and husband.'] — Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shaU be a competent witness, whether the person so charged is charged solely or jointly with any other person. Proviso as to communications during m,arriage.] — Pro- vided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage. (2.) The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the Judge, or by counsel for the prosecution in addressing the jury.^ ' See ante, p. 18. 5. Incriminating answers.] — No person shall be excused from answering any question upon the ground that the B. 6 Digitized by Microsoft® 94 Appendix. answer to sucli question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any other person : Pro- vided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him other than a prosecution for perjury in giving such evidence. 6. Evidence of mute.] — ^A witness who is imable to speak, may give his evidence in any other manner in which he can make it intelligible. Digitized by Microsoft® New South Wales Act of 1883. 95 NEW SOUTH WALES. THE CEIMINAL LAW AMENDMENT ACT OF 1883. 46 Vict. No. 17. Passed 26tli April, 1883. Came into operation 1st July, 1883 : b. 1. 470. Conduct of defence at trial.'] — Every accused person on Ms trial may, if so advised by counsel, make any admis- sions as to matters of fact, whatever the crime charged, or give any consent which might lawfully be given in a civil case — and, whether defended by counsel or not, he may make any statement at the close of the case for the prose- cution and before calling any witness in his defence without being liable to examination thereupon by counsel for the Crown, or by the Court — and may thereafter personally or by his counsel address the jury. 6(2) Digitized by Microsoft® 96 Appendix: New South Wales Act of 1891. THE CEIMINAL LAW AND EVIDENCE AMENDMENT ACT OF 1891. 65 Vict. No. 5, Passed 14th December, 1891. Came into operation on passing. 6. Accused and husband or wife competent udtnesses.'] — Every person charged with an indictable ofEence, and the husband or wife, as the case may be, of the person so charged, shall be competent, but not compellable,^ to give evidence ia every Court on the hearing of such charge. Provided that the person so charged shall not be liable to be called as a witness on behalf of the prosecution, nor to be questioned on cross-examination without the leave of the Judge as to his or her previous character or ante- cedents.^ ' As to the effect ol tte words " competent, but not compellable," see R. V. Sops (1893), 14 New South Wales LawEeports, 150; and S. C. on appeal to the P. C, Kops v. S., (1894) A. 0. 650; 6 E. 522; 70 L. T. 890; 58 J. P. 668; and the observations ante, pp. 18—25. * The interpretation put upon this enactment by the Supreme Court of New South Wales is that it is not necessary to obtain the express leave of the Judge to cross-examine a defendant as to character. Where the Judge did not stop such cross-examination by the prosecution, he was held to have given impHed leave • S v Nelson (1893), 10 New South Wales WeeUy Notes, 44. It has been held that this section does not take away the right of the accused person to make an unsworn statement under s. 470 of the Act of 1883 {ante, p. 95); and that he may first make such state- ment, and afterwards give evidence on his own behalf : B. v. Smith (1896), 17 New South Wales Law Eeports, 104. Digitized by Microsoft® New Zealand Criminal Code of 1893. 97 NEW ZEALAND. [The Justices of the Peace Act, 1882 (No. 15), was the first statute in New Zealand which rendered a person charged with an ofience and the wife or husband of such person competent, but not compellable, to give evidence : s. 80. The enactment, which was limited to certain summary proceedings, was repealed by s. 75 of the Indictable Offences Summary Jurisdiction Act, 1894 (No. 47). The Criminal Evidence Act, 1889 (No. 16), amended and extended the provisions to all criminal proceedings. Part of that Act was repealed by s. 422 and Third Schedule, Part II., of the Criminal Code Act, 1893 (57 Vict. No. 56) ; and the re- mainder by s. 75 of the Indictable OfEences Summary Juris- diction Act, 1894 (58 Vict. No. 47). The sections of the later Acts, which with some variations reproduce the provisions of the Act of 1889 concerning such testimony, are printed below.] THE OEIMINAL CODE ACT, 1893. 57 Vict. No. 56. Passed 6th October, 1893. Came into operation on a day appointed by the Governor's Procla- mation (not to be earlier than three months after gazetting of Proclamation) : s. 3 (1). Provisions relating to Procedure apply to aU prosecutions commenced on or after that day : s. 3 (2) ; and see further B. 3 (3). 398. Evidence of accused^ — (1.) Every one proceeded against by indictment for any offence, either solely or with others, shall be a competent but not compellable witness for himself or herself upon his or her trial for such offence, and the wife or husband, as the case may be, of every such accused person shall be a competent witness for him or her upon such trial. (2.) Provided that the wife or husband of an accused Digitized by Microsoft® 98 Appendix. person shall not be called as a -witness witlioiit the consent of such accused person, except in any case in which such wife or hushand are compellahle to give evidence, or the charge he one in which either husband or wife is charged with inciting or being accessory to an offence against the other. (3.) Provided that no such person shall be liable to be called as a witness by the prosecutor, but every such witness called and giving evidence on behalf of the accused shall be liable to be cross-examined like any other witness on any matter though not arising out of his examination- in-chief. (4.) Provided that, so far as the cross-exaniination relates to any previous conviction of the accused, or to the credit of the accused, the Court may limit such cross- examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness. ■ 399. Emdence of accused when undefended.'] — If an ac- cused person, or any one of several accused persons being tried together, is not defended by counsel, then, on the completion of the examination of the witnesses on the part of the prosecution, the following caution, or words to the like effect, shall be addressed to him by or under the direc- tion of the Court : that is to say, " Having heard the evidence against you, do you wish to be called as a witness and give evidence in answer to the charge ? Tou are not obliged to give evidence, and if you decide not to be examined the fact will not be allowed to be subject of comment ; but, if you are called, the evidence you give may be used agaiast you." 400. No adverse comment allowed.'] — If a person charged with an offence shall refrain from giving evidence, or from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person chaxged shall be aUowed to be made thereon.^ ^ Sed ante, p. 18. 401. Summing ■up.]—{l.) If an accused person, or any one of several accused persons being tried together, is Digitized by Microsoft® New Zealand Act of 1894. 99 defended by counsel, suoh oounsel shall at the end of the case for the prosecution declare whether he intends to adduce evidence or not on behalf of the accused person for whom he appears, and, if no counsel for any such accused person thereupon announces his iatention to adduce evi- dence, the oounsel for the prosecution may address the jury by way of summing up. (2.) Upon every trial of any person for any crime, whether the accused person is defended by counsel or not, he shall be allowed, ii he thinks fit, to open his case, and after the conclusion of such opening the accused person or his counsel shall be entitled to examine such witnesses as he thinks fit, and, when all the evidence is concluded, to sum up the evidence. In case evidence for the defence is adduced, the counsel for the prosecution shall have the right to reply. 403. Admissions.] — Any accused person on his trial for any crime, or his counsel or solicitor, may admit any fact alleged against the accused so as to dispense with proof thereof. THE INDICTABLE OEEENCES SUMMAEY JUEISDICTION ACT, 1894. 68 Vict. No. 47. Passed 24tli October, 1894. Came into operation on passing. 8. Uvidence of accused.'} — (1.) Everyone charged before Justices with any crime punishable on indictment, and everyone proceeded against summarily for any offence, either solely or with others, shall be a competent but not compellable witness for himself or herself for such offence, and the wife or husband, as the case may be, of every such accused person shall be a competent witness for him or her: Provided, — (2.) The wife or husband of an accused person shall not Digitized by Microsoft® 100 Appendix : New Zealand Act of 1894. be called as a witness without the consent of such accused person, except in any case in which such wife or husband is compellable to give evidence, or the charge be one in which either husband or wife is charged with being a party to an offence against the other : (3.) No such person shall be liable to be called as a witness by the prosecutor, but every such witness called and giving evidence on behalf of the accused shall be liable to be cross-examined like any other witness on any matter though not arising out of his esamiaation-in-chief : (4.) So far as the cross-examination relates to any pre- vious conviction of the accused, or to the credit of the accused, the Justices may limit such cross-examination to such extent as they think proper, although the proposed cross-examination might be permissible in the case of any other witness. Evidence of accused when undefended.'] — If an accused person, or any one of several accused persons being tried together, is not defended by counsel, then, on the comple- tion of the examination of the witnesses on the part of the prosecution, the following caution, or words to the like effect, shall be addressed to him by or under the direction of the Justices : that is to say, " Having heard the evidence against you, do you wish to be called as a vdtness and give evidence in answer to the charge P Tou are not obHged to give evidence, and if you decide not to be examined the fact will not be allowed to be subject of comment ; but, if you are called, the evidence you give may be used against you." No adverse comment allowed.'] — If a person charged with an offence shall refrain from giving evidence, or from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be allowed to be made thereon.^ ' See owiie, p. 18. Digitized by Microsoft® Queensland Criminal Law Act of 1892. 101 aUEEXSLAND. THE CEIMINAL LAW AMENDMENT ACT, 1892. 56 Vict. No. 3. Passed 21st July, 1892. Came into operation on passing. 3. Competency of accused person and mfe or hushandJ] — Every person accused of an indictable offence, and the ■wife or husband, as the case may be, of every such accused person, shall be a competent witness on his or her behalf, but shall not be compellable to be a witness without his or her consent. Any accused person tendering himself or herself as a witness shall be liable to cross-examination as in other cases. Nothing in this section shall render any person com- pellable to answer any question tending to criminate himself or herself with respect to any matter other than the offence for which he or she is being tried, and on the trial of which he or she tenders himself or herself as a witness. Digitized by Microsoft® 102 Appendix. SOUTH AUSTRALIA. 45 & 46 VIOT. No. 245. Passed 30tli August, 1882. Came into operation on passing. An Act to enable Persons accused of Offences to give Evidence on Oath. Preamble.] — Whereas it is expedient to enable persons accused of ofiences to give evidence on oath. Be it there- fore enacted by the (rovernor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said province, in this present Parliament assembled, as foUovfs : 1. Accused persons may give evidence on oath.] — Notwith- standing any law or ordinance to the contrary, from and after the passing of this Act any person accused of any felony, misdemeanor, or other indictable offence, or of any offence punishable on summary conviction, shall, if such person so desires, be competent and entitled to be sworn and give evidence as a witness on the trial of the felony, misdemeanor, or offence with which he is charged, and also in like manner may give evidence on any pre- liminary investigation into the said felony, misdemeanor, or offence, before Justices prior to the said trial : Provided that no presumption of gujlt shall be made from the fact of such person electing not to give evidence.^ 1 See ante, p. 18. 2. Evidence to he taken, and may be used against accused person.] — Should such person give evidence on any pre- liminary iuvestigation, the evidence so given shall be taken down iu writing, and signed by the person giviag the same, and also by the Justice or Justices, and shall be forwarded Digitized by Microsoft® South Australian Evidence Act 0/I888. 103 to the Attorney-General, together with the depositions of the witnesses, and afterwards upon the trial of any accused person, the same may be given in evidence against him without further proof, unless it shall be proved that the Justice or Justices purporting to sign the same did not in fact sign the same. 3. Interpretation.] — The word " person," whenever used in this Act, shall mean as well the person charged as the husband or wife of such person. 4. Right of reply.] — The Crown shall not be entitled to the right of reply by reason only of such person having given evidence.^ ' See ante, p. 36. 5. Persons giving evidence may he cross-examined.'] — ^Any person so giving evidence shall be Uable to be cross-examined as in the case of any other witness, and shall not be excused from answering any question on the ground that the answer may tend to criminate himself, and shall be liable to be prosecuted and punished for any perjury committed in such evidence in the same way as any other person now or heretofore competent to be examined as a witness : Pro- vided always, any husband or wife of any accused person so giving evidence as aforesaid shall be excused from answering any. question on the ground that the answer may tend to criminate himself or herself, as the case may be. THE EVIDENCE FUETHER AMENDMENT ACT, 1888. 51 & 52 Vict. No. 435. Passed 8tli December, 1888. Came into operation on passing. 2. Restriction of cross-examination.] — In any action, suit, or other proceeding in any Court of Justice, whether civil or criminal, the Judge, Commissioner, Stipendiary or Special Magistrate, or Justice of the Peace presiding in such Court, may disallow any questions put in cross-examination of Digitized by Microsoft® 104 Appendix : South Australian Act of 1888. any party or other witness whioh may appear to him to be vexatious and not relevant to , any matter proper to be inquired into in the cause, matter, or proceeding then before such Court. 3. Questions relevant to credibility.] — In deciding whether questions affecting the credibility of a witness are relevant, or ought to be allowed, the Court shall have regard to the following considerations : — (a) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies : (b) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies : (c) Such questions are improper if there is a great dis- proportion between the importance of the imputa- tion made against the witness's character and the importance of his evidence. 4. Appeal.'] — There shall be an appeal from the dis- aUowanee by any Justice or Justices of the Peace of any question put in cross-examination as aforesaid; which appeal shall be to the nearest Local Court of Full Jurisdic- tion, or, at the option of the appellant, to the Local Court of Adelaide of FuU. Jurisdiction, and the proceedings on such appeal shall be conducted in manner, &o Digitized by Microsoft® Victorian Crimes Act, 1891. 105 VICTORIA. THE CRIMES ACT, 1891. 55 Vict. No. 1231. Passed 23rd December, 1891. Came into operation on passing. 34. Person charged with offence and wife or husband to he competent as icitness.] — Where in any Coiirt, or before any Judge or Justice, a person is presented, indicted, informed against, or charged with an indictable offence or an offence punishable on summary conviction, whether solely or with others, such person and his wife or her husband (as the case may be) may be called as a witness at any stage of the proceedings at which witnesses may be caUed. Provided as follows : — (1) The person presented, indicted, informed against, or charged shall not be called as a witness without his consent : (2) The wife or husband of the person presented, indicted, informed against, or charged shall not be called as a witness without the consent of that person except in any case in which such wife or husband might have been compelled to give evidence before the commencement of this Act : (3) A person called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, either on examination, cross- examination or re-examination, any question not relevant to the particular offence with which he is Digitized by Microsoft® 106 Appendix : Victorian Crimes Act, 1891. charged, unless such person has given evidence of good character. Provided always that no comment shall be made upon the fact that any such person ■ has not given evidence in his own behalf. ^ ^ See ante, p. 18. 35. Caution to he given to person charged."] — Where a person charged with an offence is not defended by counsel or solicitor, the following caution or words to the Kke effect shall, before he is called as a witness, be handed to him in writing under the direction of the Court, Judge, or Justice before whom he is charged (that is to say) : — " Having heard the evidence against you, do you wish to be called as a witness and give evidence in answer to the charge? Tou are not obliged to be called and give evidence unless you wish, but if you are called the evidence you give may be used against you, and you wiU be liable to be cross-examiaed." Digitized by Microsoft® Indian Code of Criminal Procedure, 1882. 107 INDIA. THE CODE OF CEIMINAIi PEOOEDUEE, 1882. Act No. X. of 1882. Passed 6th March, 1882. Came into operation 1st January, 1883 : s. 1. 342. Power to examine the accused.'] — For the purpose of enabling tlie accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, -without previously warning the accused, put such questions to hun as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the ease after the witnesses for the prosecution have been examined, and before he is called on for his defence. The accused shall not render himself liable to punish- ment by refusing to answer such questions, or by giving false answers to them ; but the Court and the jury (3 any) may draw such inference from such refusal or answers as it thinks just. The answers given by the accused may be taten into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other ofEence which such answers may tend to show he has committed. No oath shall be administered to the accused. Digitized by Microsoft® Digitized by Microsoft® INDEX. A. ABDUCTION, PAGE forcible, evidence in ------ 44, 46 fraudulent, evidence in ----- - 45 — 48 ACCUSED PEESON. See Defendaitt. ACT, applicatibn of Courts Martial, none to, unless specially applied- 16, 28, 50, 53, 54 Ecclesiastical Courts, semUe, none to - - - 51 Ireland, none to - - - - - 16, 54 proceedings, concerning highways, none to - - - 52 criminal, to all ... - 15, 50, 55 enforcing civU rights, none to - - 16, 44, 52 pending, to - - . - _ ig — 16, 50, 55 smuggling cases, in, doubtful whether any to 51 — 62 Scotland, to 16, 49 commencement of - - - - - - 15, 50, 54, 55 intention, general, of-- _-. 21 prior enactments overridden by - - - - 50 title, short, of-------- 54 ACTS. See Enactments, and Table of Stattjtbs, ante, p. xi. 0. CANADA, defendant, wife or husband competent witness in - 3, 18, 93 comment on failure to testify not allowed in - 3, 18, 93 evidence in criminal proceedings in - - - - 93 — 94 (1) 7 Digitized by Microsoft® Index. OHAEAOTBR page of defendant 14, 15, 30—33 in Scotland 32, 90 •witnesses to - - - - - - - 15, 35 of prosecutor, imputations on - - - - 15, 30 — 33 of witnesses for prosecution, imputations on - 15, 30 — 33 CIVIL EIGHTS, proceedings for trying or enforcing, not affected by- Act 16,44,52 COLONIES. See also CiifiDA; LsroiA; New Sotjth Waies; Ne-w ZeaTjAito ; Qtjeensiand; South Atjsteaiia; Victoeia. comment on failure of defendant, ■wife or husband to testify in - - - . . - . 18 — 25 COMMENCEMENT OF ACT - - 15, 50, 54, 55 COMMENT. See also Guilt. on failure to testify- - - - 3—6,13,17—25 compulsory effect of - - - - - - 18 — 25 COMMON LAW, rule as to incompetency of defendant's mfe or husband to testify at ______ 44 exception to, in certain oases, and discussion on- 44 — 49 COMMUNICATIONS, during marriage, disclosure of - - - 14, 25 — 28, 71 — 72 after dissolution of marriage, disclosure of - - 27 COMPELLABLE WITNESS, meaning of - - - 18, 19, 69, 70, 71, 96 COMPETENCY, of defendant as ■witness - - - - - - 13, 15 of defendant's wife or husband as witness- - 13, 15 against the other at common law - - 25, 89, 44 — 49 in Scheduled offences - - 25, 39 under Evidence Act, 1877 - 16, 25, 43—44, 50, 52 in favour of the other whenever competent against 49 CONVICTION, PREVIOUS. See Pbevious Ofpbnoe. COUNSEL'S ADDEESS. See Speeches. Digitized byWItcrosoft® Index. COUNT, PAGE each, like a separate indictment - - - ' - 40 one for Scheduled, and one for other offence - - 39, 43 wife or hushand's evidence admissible for prose- cution on first only - - - - - 39, 43 to be disregarded on second - - - 40, 43 proper direction respecting - - - 40, 43 single, alternative verdict on, at conunon law - 42, 43 what evidence may be regarded, Eln. 2 - 42, 43 proper direction respecting 40 — 43 under statute - - 40 — 43 what evidence may be regarded - - 40 — 43 may contain two charges - - - - 41, 42 OOTJET, power of, to comment - - - . . 17 — 25 proper direction by, respecting evidence admissible on one charge only, when alternative verdict possible- 40 — 43 COUETS MAETIAIi, military, not governed by Act unless specially ap- plied - 16, 28, 50, 53, 54 naval, not governed by Act unless specially applied - 16, 28, 50, 53, 54 CRIMINAL PEOCBEDINGS. See Peoceeddtgs. CBOSS-EX A ATTNATION, absence of power in Judge to restrain - 8, note ^ classes of, two main _ _ . - 8 of defendant - - - 6—9,14,15,29,30—33 essential difference between, and that of other witnesses __._-_ 7 — g in Scotland ... . - 82 D. DEFENCE. See also Dependant. conduct of, involving imputations - - - - 15 difficulties of 19—25 nature of, involving imputations - - - - 15 (3) 7 (2) Digitized by Microsoft® Index. DEFENDANT, page application of,- necessary for calling self, wife or hus- band 13, 14 character of. Bee Ohaeactbe. oomment on failure to testify, by Court - - .... 17—25 compulsory efiect of ... 20 — 22 divergent views as to expedieney of aUow- ing . - .... 18 — 25 by prosecution, not allowed - - 13, 17, 20, 22 compellable witness, when . - - - 16, 43, 52 competent witness - - - - - 13, 16, 16 before grand jury, semhle not - - 16 under prior Acts ..... 16 consent of, when unnecessary for calling wife or hus- band _ . . . 39 cross-examination of - - - 6 — 9, 14, 15, 29, 30 — 33 in Scotland .-..-.. 32 Ecclesiastical Court, in, semhle Act not applic- able to ........ 51 evidence by, implicating another - - - 15, 32 — 33 place for giving ----- 15 time for giving - - - 35 when conferring no right of reply- - 35 — 36 where none, whether inference of guilt may be drawn from ... 22 — 25 of other ofiences by - - - - 8—9, 29—30 in Scotland - - . . 30, 32, 90 examination of, by Judge, objection to - - -. 9 — 10 jointly charged - - - - - - - 13, 17 statement imsworn, right to make, saved - 15, 33 — 34 wife or husband of. See Wifb or Hxtsbaito of Defendant. E. ECCLESIASTICAL COURTS Act, whether applicable to penal proceedings in - 61 ENACTMENTS, prior, overridden ---...- go (4) Digitized by Microsoft® Index. EVIDENCE. See also Cotjnt; Defendant; Peeviotts OrPEsroE; Witness. p^ob admissibjKty of, of abducted wife - - - . 45 grounds of - . . . 45—48 of husband defrauded into marriage - 47, 48 of parties to bigamous marriage - 49 failure of defendant, -wife or husband, to give. See Comment; Defendant. "1 1'eply 34, 38—39 unsworn, of child, when admissible - - - - 41 G. GEAND JURY, defendant, semble no right to be heard by - - 16 duties of - - ----- 16, 17 witnesses before ------ 16 GUILT. See also Soxtth Australia. inference of, whether any to be made from defendant's failure to testify - - 3—6, 18 — 25 comment suggesting, whether any permissible - 3, 4, 5, 6, 17—25 effect of - - - - 5, 6, 18—25 H. HIGHWAY. non-repair of, or nuisance to, witnesses compellable on charge of 16, 25, 43—44, 50, 52 HUSBAND. See also Competbnot ; Wife or Husband OF Defehdajstt ; Witness. disclosure of communications by or to - 14, 25 — 28, 71 — 72 I. INDIA, provisions as to examining accused person in - - 107 INDICTMENT. See Cotint. INNBS, SIE GEOEGB, objection to Judge examining prisoner - - 10 on moral compidsion of comment - - 6, 21 (5) Digitized by Microsoft® Index. lEELAND, ^^^'^ Act not appKoable to - - - - - 16, 50, 54 J. JOINT CHAE&B, eaci defendant, wife or husband, competent witness on 13, 17 various purposes of such testimony - 1" formerly incompetent _ _ . 17 JUDGE. See also Cottbt. examining prisoner, objection to - - - 9 — 10 JUET. See also CotrNT. whether, may infer guilt from defendant's refusal to give evidence . . - - - 3 — 6, 18 — 25 M. MAGISTEATE. See Ootjbt. MAEEIAGE. See also Husband; Wife; Wifb or Husband of Dbfendawt. contract of, when voidable _ . - - 45 evidence of husband defrauded into, whether admis- sible - - - - - - 47, 48 parties to bigamous, admissible - - 49 wife consenting to, after abduction - - 45 grounds for admitting - - - 45 — 48 N. NEW SOUTH WAJLES, admissions and statement by defendant in - - 34, 95 defendant, wife or husband, competent witness in - 3, 6, 10, 18, 19, 21, 22—25, 96 NEW ZEALAND, defendant, wife or husband, competent witness in- - 3, 97 commtot on failure by, to testify, not allowed in - - - - - 3, 18, 98, 100 NOTICE, when in Scotland list of witnesses required, defendant, wife or husband, not to be called without prescribed 49, 89 (6) Digitized by Microsoft® Index. O- PAGE OFFENCE, PEEYIOUS. See Previous OirsiiroE. OFFENCES EBFEEEED TO IN SCHEDULE. See also Schedule. Table of- - - - . -56,57,68—61 ONUS OF PEOYING GUILT, wtether afiected by Act ------ 22 15 OPEEATION OF ACT. See Act. P. PEESON CHARGED WITH OFFENCE. See Deeetoant. PEEYIOUS CHARGE OE CONVICTION. See Previous Ofeence. PEEYIOUS^ OFFENCE, cross-examining defendant as to - 3, 4, 6 — 9, 14 — 15, 29, 30 — 33 in Scotland ------- 32 evidence of, wbether admissible - 8—9, 14 — 15, 29 — 30 in Scotland ----- 30, 32, 90 PEISONEE. See Dependant. PEOCEEDINGS, criminal, application of Act to - - - - - 15, 50 exceptions - - - - - 16, 25, 28 defendant, -wife or bnsband, competent witness for defence, wben - - - - 13, 14, 15, 16 compellable -witness, when - - - 16, 25, 39, 52 penal, in Ecclesiastical OovLrts, Act, wbether applicable to _ - - . 51 pending. Act applies to - - - - - - 16 — 16, 60, 55 preliminary, before Magistrate, defendant's statement at - - - - - 33 smuggling cases, in, doubts whether Act appUoable to 61 — 52 summary, defendant's statement at - - - - 33 PEOOF, onus of, whether affected by Act - - - - 22 — 25 (7) Digitized by Microsoft® Index. PEOSEOTJTION, ^^^^ comments by, on defendant's failure to testify. See Comment ; DEFEiTDAiirT. speeclies for. See Speeches. witness for — character of, imputations on - - - 15, 30 — 33 defendant as, when compellable- - - 16, 43, 52 defendant's wife or husband generally not com- petent as - - - - 13, 14, 15, 16 exceptions - - - - 16, 25, 39, 43, 44, 52 PE08EOUTOE, character of, imputations on - - - - 15, 30 — 33 Q. aHEBNSLAND, defendant, wife or husband, competent witness in - 101 E. EEPLY. teEvTDENOE; Speeches. EEVENUE COTJETS, smuggling cases in, doubtful whether within this Act 51 EUSSELL OE KLLLOWEN, LOED, O.J., opinion as to cross-examination of accused - - 1 S. SCHEDULE TO ACT - - - - - - 55 offences referred to in - - - 16, 25, 39, 43 Table of 56, 57, 58—61 SCOTLAND, Act applicable to - - - - - - - 16, 50 evidence, other enactments respecting, in - - - 86 — 92 of other offences in - - - - 30, 32, 90 notice of witnesses in - - - - - 49, 89 SMUGGLINa. See Eetentie Oottbts. SOUTH AUSTEALIA, cross-examination, restriction of, in - - - 103 defendant, wife or husband, competent witness in 3, 102, 103 presumption of guUt, none to be made from failure of, to testify in 3, 18, 102 (8), Digitized by Microsoft® Index. SPEECHES, PAGE for defence --.-.... 34 number of----... 35 for prosecution reply 34, 36, 37—38, 39 none where defendant only •witness - 35 — 36 summing-up ------- 36—37 STATEMENT, proper time for defendant to make, at trial - - 34 unsworn, saved under Act - - - . 15,33—34 various occasions when defendant may make - - 33 STATUTES. See Tasle as Stattites, ante, p. xi. STEPHEN, ME. JUSTICE MATTHEW HENEY, on dangers of unrestricted comment - - - - 22 — 25 STEPHEN, SIE JAMES PITZJAMES, objection to Judge examining prisoner - - 10 on counsel's discretion to call prisoner - - - 20 on rule at common law as to incompetency of wife or husband to testify in criminal cases - - 44 exception to - - - - - - - 44, 48 terms of, whether too limited - - - 44 — 48 suggested extension of - - - - 48 on rule excluding evidence of other ofEence - 8 — 9, 29 — 30 SUMMAEY PEOOEEDESraS. See Peooeedik-gs. SUMMING-UP BY COUNSEL. See Speeches. T. TEEASON, testimony of wife or husband in, whether admissible- 48 TEIAIi. See also Count; Cotjet; DEEENBAifT ; Evi- dence; Speeches. defendant's unsworn statement at - - - - 33 — 34 evidence of witness to be given from box - - 15 V. VEEDIOT. See also Count. effect of cross-examining prisoner to credit - - 8 — 9 VICTOEIA, defendant, or wife or husband, competent witness in - 3, 105 comment on failure to testify, not allowed in - 3, 18, 106 B. (9) 8 Digitized by Microsoft® Index. w. ™,™ PAGE WIFB, Bee also Oompetenot ; Wife or Husband of Defeijdant; Witness. disclosure of commumcations by or to - 14, 25 — 28, 71 — 72 testunony of, consenting to marriage after abduction- 45 WIPE OR HXrSBAJSnO OF DBEENDANT. See also CoMPETBsrcT; Witness. comment on failure to testify by - - 13, 17, 18 compellable witness against husband, wben at common law - - _ -26,39,44 — 49 in Scheduled offences - - - - - 25, 39 under Evidence Act, 1877 - - 16, 25, 43—44, 50, 52 competent witness for defence - - - 13, 14, 15, 16, 44 not before grand jitty ----- 16 under earlier Acts . - _ . . 16 now, semhle, overridden - - 50 whenever competent for prosecution - - - 49 dying declaration against the other, when admissible 44 testimony of, admissible on only one of two charges, how to be treated -_--__ 39 — 43 WITNESS. See also Ohaeacteb; Oompetenot; Count; Defendant; Evidence; Wife or Husband of Defendant. character of defendant, to - - - - - 15, 35 criminating questions. See Ceoss-EXAMINATION. defendant, competent for defence - - - 13, 15 jointly charged - - - - - 13, 17 not before grand jury - . _ - 16 under earlier Acts ----._ ig now, semble, overridden - - - _ 50 compellable under Evidence Act, 1877 - 16, 43, 52 evidence of, to be given from witness box - - 15 list required in Scotland - - - _ 49^ §8 91 party to bigamous marriage, competent - .49 prosecution, for, imputations on - - - - 15 HtlNIBD BY 0. F. EOWOBTH, GEEAT NEW SIBEHT, EBITBE LAUE, B.C. (10) Digitized by Microsoft® Digitized by Microsoft®