« ElőzőTovább »
NEW SOUTH WALES.
THE CRIMINAL LAW AMENDMENT
ACT OF 1883.
46 VICT. NO. 17.
Passed 26th April, 1883.
Came into operation 1st July, 1883: s. 1.
470. Conduct of defence at trial.-Every accused person on his trial may, if so advised by counsel, make any admissions 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 prosecution 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.
THE CRIMINAL LAW AND EVIDENCE
55 VICT. No. 5.
Passed 14th December, 1891.
6. Accused and husband or wife competent witnesses.]Every person charged with an indictable offence, and the husband or wife, as the case may be, of the person so charged, shall be competent, but not compellable,1 to give evidence in 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 antecedents.2
1 As to the effect of the words "competent, but not compellable," see R. v. Kops (1893), 14 New South Wales Law Reports, 150; and S. C. on appeal to the P. C., Kops v. R., (1894) A. C..650; 6 R. 522; 70 L. T. 890; 58 J. P. 668; and the observations ante, pp. 18-25.
2 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 implied leave: R. v. Nelson (1893), 10 New South Wales Weekly 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 statement, and afterwards give evidence on his own behalf: R. v. Smith (1896), 17 New South Wales Law Reports, 104.
[The Justices of the Peace Act, 1882 (No. 15), was the first statute in New Zealand which rendered a person charged with an offence 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 remainder by s. 75 of the Indictable Offences Summary Jurisdiction 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 CRIMINAL CODE ACT, 1893.
Passed 6th October, 1893.
Came into operation on a day appointed by the Governor's Proclamation (not to be earlier than three months after gazetting of Proclamation): s. 3 (1).
Provisions relating to Procedure apply to all prosecutions commenced on or after that day: s. 3 (2); and see further s. 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
person shall not be called as a witness without the consent of such accused person, except in any case in which such wife or husband are compellable to give evidence, or the charge be 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 examinationin-chief.
(4.) Provided that, so far as the cross-examination relates to any previous conviction of the accused, or to the credit of the accused, the Court may limit such crossexamination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness.
399. 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 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 direction 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? You 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 against 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 charged shall be allowed to be made thereon.1
1 See ante, p. 18.
401. Summing up.]-(1.) If an accused person, or any one of several accused persons being tried together, is
defended by counsel, such counsel 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 intention to adduce evidence, the counsel 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, if 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 OFFENCES SUMMARY
58 VICT. No. 47.
Passed 24th October, 1894.
Came into operation on passing.
8. Evidence 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