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Where counsel for the prosecution is allowed to comment 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 invited 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 will be said that such a matter as this of comment may safely be left to the discretion 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 with leniency and consideration, the discretion is not confined 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 comment 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 2.
Wales, constituted of seven Judges, in the case of R. v. Kops (1893)," which came before the Privy Council on appeal in 1894.18 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 correctly 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 all 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," 19 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." 20 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 will 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 stringent rules for restricting such cross-examination are laid
17 14 N. S. W. Law Reports, 150. 18 Kops v. R., (1894) A. C. 650; 6 R. 522; 70 L. T. 890; 58 J. P.
19 S. 1 (f.), post, p. 14.
down, the restriction intended by this clause will in practice prove illusory.
When the Bill was before the House of Lords on the 1st August, 1898, Lord Russell of Killowen, C. J., expressed his opinion that the limitation of crossexamination 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. 21 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
21" Once they 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 limitation 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 unwilling, 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 believed would operate for good as far as it went."-Speech of Lord Russell of Killowen; see Debate in the House of Lords in The Times, 2nd August, 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 our rules of evidence, questions put in cross-examination are divisible into two main classes. Either they must relate to facts in issue, or to facts relevant, or deemed to be relevant, thereto; 22 or, secondly, they must tend to test the witness's "accuracy, veracity, or credibility; or to shake his credit by injuring his character." 23 Almost any question addressed to those matters must be permitted.24 But if all questions of the second class, although they may be absolutely irrelevant to the charge preferred, are to be allowed in cross-examining 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 familiar rule of evidence in criminal cases, that a prisoner being charged with having 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
22 See Stephen's Digest of Evid., Art. 127, 3rd ed. 128; 4th ed. 143. 23 Stephen's Digest of Evid., Art. 129, 3rd ed. 129; 4th ed. 144.
24 For a striking illustration of the powerlessness of a Judge in a criminal case to prevent counsel insisting on a witness being compelled to answer a scandalous question wholly irrelevant to the issue
and barely relevant to the credibility of the witness, see R. v. Orton, alias Castro (1874), Summing-up of Cockburn, C. J., Vol. 2, 720-722; and Illustration (a) to Art. 129 in Stephen's Dig. Evid., ubi supra. As to the power now given to a Judge in civil cases to disallow vexatious and irrelevant questions, see R. S. C. 1883, Order 36, rule 38.
Sir J. F. Stephen, "is one of the most characteristic and distinctive 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 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." 25 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 life.
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 advocated the change in our law have appeared to minimise, 25 Stephen's Dig. Evid., 3rd ed. 148; 4th ed. 163.