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2. Where the only witness to the facts of § 2. the case called by the defence is the person Evidence charged, he shall be called as a witness charged. immediately after the close of the evidence for the prosecution.1
1 Time for calling Defendant as witness.-Where the defendant wishes to give evidence as to the facts, and to call witnesses to character only, he must under this section give his own evidence first. Where any of his other witnesses speak as to the facts of the case, the witnesses (including himself) can be called in any order he pleases.
Speech for defence, when Defendant is the only witness. This section to some extent modifies the existing right, conferred by 28 & 29 Vict. c. 18, s. 2 (Arch. 182; Rosc. 202), of a prisoner or his counsel to make two speeches one to open his case, and the other to sum up his evidence; for where defendant is the only witness to the facts of the case, he must be "called as a witness immediately after the close of the evidence for the prosecution," and he or his counsel will be limited, it would seem, to a single speech at the close of the evidence.
As to how far in certain cases the existing right of counsel for the prosecution to sum up is affected by the present Act, see note1 to s. 3, post, pp. 36-37.
Unsworn Statement.-Nothing in this Act affects the defendant's right to make a statement to the jury without being sworn: s. 1 (h); see note 10, ante, p. 33.
3. In cases where the right of reply de- Right of pends upon the question whether evidence reply. has been called for the defence, the fact that the person charged has been called as a wit
ness shall not of itself confer on the prosecution the right of reply.1
1 Right of Reply. The rule as to the right of reply which has been in force for many years up to the commencement of this Act is that if any evidence is called for the defence, the counsel for the prosecution has the right to reply; if no evidence is called for the defence, the counsel for the prosecution has no such right, unless that counsel is the Attorney-General or Solicitor-General of England prosecuting in person in a Crown case: resolution of the Judges in 1887, 5 St. Tr. N. S. 34. This special privilege of the Law Officers of the Crown seems to be a relic of political prosecution, and in the opinion of Judge Taylor and others "is a custom more honoured in the breach than the observance:" 1 Tay. Evid. pp. 275-6. If one of several defendants alone calls evidence, it has sometimes been held that this gives the prosecution a right of reply as to all; but the reason for this ruling is not apparent, and the better opinion is that in such a case the right of reply is limited to replying to the case of the single defendant who calls evidence. Cf. Arch. 182, 123; Rosc. 204-5. If witnesses for the defence are called to character only, a reply for the prosecution is unusual, and regarded as a somewhat rigorous exercise of strict right.
The present section is apparently taken from a similar enactment in the South Australian Act of 1882-45 & 46 Vict. No. 245-s. 4, printed in Appendix, post, p. 103.
This section, when read in connection with s. 2 of the Act of 1865-28 & 29 Vict. c. 18-(infra), appears to go a considerable length in curtailing the right of speech of the counsel for the prosecution, and to place him at some disadvantage. The right of the counsel for the prosecution to sum up his evidence. was first given by that enactment, the first clause of which, declaring in what event such right shall
be called into existence, enacts as follows: "If §3. any prisoner or prisoners, defendant or defendants, shall be defended by counsel, but not otherwise, it shall be the duty of the presiding Judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants." The word counsel" includes solicitors appearing as advocates: ibid. s. 9.
On the construction of the above clause of the Act of 1865, it seems clear, according to the maxim expressio unius est exclusio alterius, that in the event of of the prisoners' counsel" thereupon announcing his intention to adduce evidence," the counsel for the prosecution shall not be allowed to sum up his evidence. If the prisoner's counsel then, after announcing his intention to adduce evidence, calls the prisoner as his only witness-and if he does this, he must call him "immediately after the close of the evidence for the prosecution": s. 2, ante, p. 35-the counsel for the prosecution cannot be allowed to sum up his evidence, while the fact that the prisoner has been called as a witness shall not, under the present section, "of itself confer on the prosecution the right of reply." It seems to follow that in such a case the counsel for the prosecution cannot be allowed a second speech, either to sum up his evidence or to reply.
It is conceived that another effect of the present section will probably be to alter the rule of practice, which Mr. Justice Cave announced was to be followed in future, viz., that if the defendant make an unsworn statement, the prosecution would have a right of reply on the new matter thus laid before the jury:
R. v. Shimmin (1882), 15 Cox, C. C. 122; cf. s. 1 (h), and
Evidence in reply.-This section does not appear to affect the right of the prosecution to call evidence in reply, although the defendant has been the only witness called for the defence. The general rule is that the Crown must (like the party beginning in a civil action) bring forward in the first instance all the evidence necessary to complete the case for the prosecution; but whenever the defendant gives evidence to prove entirely new matter, which the Crown could not have foreseen, the Crown is entitled to give evidence in reply to contradict it, such evidence being strictly confined to matters in reply: R. v. Frost (1840), Monmouth Special Commission, coram Tindal, C. J., Parke, B., and Williams, J., 9 C. & P. 129, at 159.
F. and others are indicted for high treason, and charged with marching with 2,000 men into Newport and making a warlike attack upon a house and firing upon magistrates, soldiers and constables assembled therein. Evidence having been given by H. and other witnesses to prove the facts alleged by the prosecution, W. is called for the defence, and in order to show that the object of the rioters was not treasonable but was merely to get certain prisoners released, states that one of the rioters when approaching the house, on being asked by a constable what they wanted, answered: "Surrender up your prisoners." H. can be called by the Crown in reply to contradict this statement: R. v. Frost (1840), ubi supra.
Where evidence in reply is properly admissible, and is called, it is apprehended that, even in a case where the defendant alone has given evidence for the
defence, the counsel for the Crown will have a right § 3. to make a speech in reply; for although the fact that the defendant has been called as a witness does not of itself confer the right of reply, the fact that evidence has been properly called in reply to contradict his evidence would seem to confer such right.
4.-(1.) The wife or husband of a person Calling of charged with an offence under any enactment husband mentioned in the Schedule to this Act1 may cases. be called as a witness either for the prosecution or defence and without the consent of the person charged.2
(2.) Nothing in this Act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.3
1 See Schedule, post, p. 55; and Table of Offences referred to in Schedule, post, pp. 58-61.
2 In what cases the Defendant's wife or husband may be called as a witness for the prosecution by Statute.
(i) Offences referred to in Schedule to Act.-Whenever a defendant is charged with any offence referred to in the Schedule (for a list of such offences see the Table, post, p. 58), the defendant's wife or husband may be called as a witness for the prosecution.
If the defendant is charged in one count of an indictment with committing an offence referred to in the Schedule to this Act, and in a second count with committing an offence not referred to in the Schedule, and if the defendant's wife or husband