« ElőzőTovább »
§ 1. law of evidence, inferences are not allowed to be drawn "from one transaction to another which is not specifically connected with it merely because the two resemble each other. They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference:" Stephen's Dig. Evid. 3rd ed. 147; 4th ed. 163.
This is the rule which prevents a man charged with a particular offence from having either to submit 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 conduct on the particular occasion:" ibid. 3rd ed. 148; 4th ed. 163.
1. C. is indicted for an infamous crime. Evidence that C. formerly committed a crime of the same sort, with the view of showing that he has a tendency to commit such crimes, is inadmissible: R. v. Cole (1810), by all the Judges, 1 Phil. Evid. 10th ed. 508; Arch. 248; Rosc. 87; cf. R. v. Oddy (1851), Court for C. C. R. 2 Den. C. C. 264; T. & M. 593; 5 Cox, C. C. 210; 20 L. J. M. C. 198; Arch. 250, 501; Rosc. 91.
2. M. and his wife are indicted for the murder of an infant. The body of the child, which they had undertaken to adopt for a premium of £3, was found buried in the back garden of a house from which they had removed two days after receiving the child. Evidence that the prisoners had adopted other infants upon payment of small sums, and that the bodies of infants had been found buried in the gardens of several other houses occupied for a time by the prisoners, is admissible: Makin v. Att.-Gen. for New South Wales (P. C.), (1894) A. C. 57; 63 L. J. P. C. 41; 6 R. 373; 69 L. T. 778; 17 Cox, C. C. 704; R. v. Makin (1893), 14 New South Wales Law Reports, 1, 548.
In Scotland a similar rule has hitherto prevailed: see Criminal Procedure (Scotland) Act, 1887, s. 67, Appendix, post, p. 90; and as to the effect on that enactment of the present section, see note 7, infra.
7 Cross-examination of Defendant as to his past career and character. This clause appears to extend indefi
nitely the opportunity of attacking the character of § 1. an accused person who gives evidence, and to be likely to have very far-reaching consequences. It is not easy to see what kind of defence can be raised, except perhaps that of an alibi or of the insanity of the defendant, which will not necessarily "involve imputations on the character of the prosecutor or of some witness for the prosecution; and if any such defence is raised-if any imputation is made on the character of a witness for the prosecution, however much it may be justified-or if the defendant has given evidence against any other person charged with the same offence (clause (iii), ante, p. 15); the defendant may be cross-examined not only as to his own character, but as to a previous conviction of any offence whatever, and even as to a charge, whether well-founded or not, at any time made against him. In a case in which an accomplice is called as a Crown witness-no uncommon event-the defence by attacking his character will subject the defendant, if he desires to give evidence, to be cross-examined as to the whole of his past life. Under such conditions, supposing the defendant to have several previous convictions recorded against him, it is to be feared that it may tax the power of a strong Judge to secure a fair trial according to British notions.
It was perhaps intended that while the clause numbered (i) is an exception to the rule that the defendant shall not be cross-examined as to other offences, the clause numbered (ii) should refer only to cross-examination as to the defendant's bad character; but there seems nothing in the words of the enactment so to limit its construction, and if the character of a Crown witness is impugned, even indirectly by the nature of the defence, it would seem that the defendant may be cross-examined as to any offence committed by him at any time. Yet if a witness for the Crown is of bad character, as must sometimes occur, it can hardly be in the interests of justice to punish with such severity any
§ 1. imputation against him on the part of the defence. Unless the Judges lay down and enforce some rules for restricting such cross-examination, there seems to be no small danger of its exceeding proper bounds.
This clause will effect the same change in the practice in Scotland; see s. 67 of the Criminal Procedure (Scotland) Act, 1887, Appendix, post, p. 90.
8 Cross-examination of Defendant as to his character, if he implicates another.-Under this clause if a defendant himself gives evidence implicating another person charged with the same offence, he is liable to be cross-examined both as to his own character and also as to whether he has committed, or has been convicted of, or charged with, any other offence.
It has been suggested by one learned writer that it is not necessary under this clause that the defendant should have given such evidence in the course of the same proceedings, and that it will probably suffice if such evidence was given upon another occasion and in other proceedings, the construction of the clause leaving this matter open to doubt: Article by Mr. Pitt-Lewis, Q.C., in The Nineteenth Century, October, 1898, p. 599. It is submitted that to put on this clause the construction suggested would be straining the meaning of a penal provision, which, if open to doubt, should receive the most favourable construction in favorem libertatis. To have to enter in the course of a criminal trial into a side issue with respect to evidence which the defendant might have given at any time in other proceedings instituted against another person might cause the greatest perplexity and confusion. It is conceived that this clause must be limited to evidence given by the defendant in the course of the same proceedings.
If the defendant merely calls a witness to give evidence against any other person charged with the same offence, but does not himself give such evidence; or if the defendant himself gives evidence
against another person who is not charged with the same offence, and is not the prosecutor nor a witness for the prosecution (see preceding note), the defendant will not thereby render himself liable to such cross-examination. Most of the observations made in the preceding note are also applicable to this clause.
9 Defendant's Statement before a Magistrate.Section 18 of the Indictable Offences Act, 184811 & 12 Vict. c. 42-directs the Magistrate at the examination before him, in a case not to be dealt with summarily, after cautioning the accused, to take down in writing any statement he may wish to make. Such statement may afterwards be given in evidence against him on his trial: Arch. 266; Rosc. 55, 59.
10 Unsworn Statements made by Defendant.—A person charged with an offence has a right to make a statement:
(a) At the examination before the Magistrate, where the case is not to be dealt with summarily, under s. 18 of 11 & 12 Vict. c. 42: see note supra.
(b) On his trial for an offence tried summarily: The Summary Jurisdiction Act, 1848-11 & 12 Vict. c. 43-ss. 12, 14: and 18 & 19 Vict. c. 126, s. 4.
(c) On his trial at Quarter Sessions or Assizes: as to which, see infra.
By the present clause (h.) nothing in this Act is to affect any right of the person charged to make a statement without being sworn.
The right to make such a statement upon his trial at Quarter Sessions or Assizes is a common law right established by the practice of the Courts. After many contrary rulings by Judges with respect to the proper practice to be followed (see note in 15 Cox, C. C. 124; cf. Stephen's General View of the
Criminal Law, 2nd ed. 187), it was in 1882 laid down that the course to be adopted at trials in future was as follows:-A prisoner, whether defended by counsel or not, may make a statement to the jury giving his own version of the facts ; and the time allowed for doing this is after his counsel has addressed the jury (surely not a convenient order of procedure, since his counsel is thus not able to comment upon, and is not, it seems, even allowed to foreshadow or refer to, his own client's version of the facts, unless he is in a position to prove it by sworn testimony: see per Coleridge, J., in R. v. Beard (1837), 8 C. & P. 142)—and such statement is subject to a right of reply on the part of the prosecution on the new matter thus laid before the jury: per Cave, J., in R. v. Shimmin (1882), 15 Cox, C. C. 122. As to the right of reply, however, see now s. 3 of this Act, and note thereto, post, pp. 35-36. As to such statements by prisoners, see Arch. 181-2; Rosc. 203-4.
When, therefore, the prisoner desires to make a statement, his counsel must address the jury first; when the prisoner desires to give evidence on oath, his counsel must address the jury afterwards: s. 2, infra.
The question whether the Crown has a right to call evidence in reply to contradict a statement by a prisoner has perhaps never been raised in English Courts. In New South Wales, where the prisoner has a statutory right to "make any statement at the close of the case for the prosecution, and before calling any witness in his defence," it has been held that where he makes a statement but calls no evidence, the Crown may give evidence to contradict his statement: R. v. Chantler (1891), 12 New South Wales Law Reports, 116.