Criminal Evidence Act



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 cases, the consequences of which must necessarily be far 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.1 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.2 In certain cases, 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.3 Those cases


(1) Where the charge is for one of the offences against a woman or girl under the Criminal Law Amendment

1 S. 1, post, p. 13. B.

2 S. 1 (a), post, p. 13.

3 S. 4, post, p. 39. b

Act, 1885; or for a similar offence under the Offences against the Person Act, 1861; or for an offence committed by a wife or husband against the property of the other under 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.4

(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 cases of bodily injury inflicted by the one on the other.5

(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 6-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.R


The Act applies from its commencement to all criminal proceedings in England and Scotland 10, but not in Ireland.11

4 S. 4 (1), post, p. 39. See Schedule to Act, post, p. 55; and Table of Offences, post, pp. 58-61.

5 S. 4 (2), post, p. 39; see note 3 on p. 44.

6 See per Mellor, J., in R. v. Stephens (1866), L. R. 1 Q. B. 702, at 708; 35 L. J. Q. B. 251; 14 L. T. 593.

7 S. 6 (1), post, p. 50, and note 2, post, p. 52.

8 S. 6 (2), post, p. 50, and notes 3

and 4, post, p. 53. Up to the pre-
sent time (8th October, 1898), the
Act has not been specially applied
to Courts Martial, but the Earl of
Halsbury, L.C., has stated in the
House of Lords that he had no
doubt it would be so applied. See
Debate in the House of Lords on
1st August in Times of 2nd August,

9 S. 6 (1), post, p. 50.
10 See s. 5, post, p. 49.
11 S. 7 (1), post, p. 54.

This Act, therefore, will bring about a complete change in almost all our criminal proceedings. Similar enactments have been 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 competent but not compellable to give evidence." 12 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.13 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." 15

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

12 N. S. W. Criminal Law and Evidence Amendment Act of 1891, s. 6, post, p. 96.

13 Ibid.

14 See e. g. the enactments in

Canada, s. 4 (2), post, p. 93; New Zealand, s. 400, post, p. 98, and s. 8, post, p. 100; Victoria, s. 34 (3), post, p. 106.

15 See South Australian Act, 1882, ss. 1, 3, post, pp. 102, 103.

comment 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 under the new procedure. They will 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 (b) is only subservient, is as to whether any inference of guilt may be drawn from the fact that the accused, 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 incumbent 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.16

16 See on this subject the observations of Mr. Justice Matthew Henry Stephen in R. v. Kops (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 Englishmen, 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 police 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 in the shade rubbing red

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