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c. 42.

4. Defence of Accused, and examining his Witnesses. If evidence

The evidence for the prosecution being closed, the next course insufficient, accused to be is pointed out by 11 & 12 Vict. c. 42, as follows:-sect. 25 discharged ; enacts,—"that when all the evidence offered upon the part of 11 & 12 Vict. “the prosecution against the accused party” (and, as may

, here be read since 30 & 31 Vict. c. 35, s. 3, post, p. 957, also Sect. 25.

the evidence for the accused party], 27 “shall have been heard, “ if the justice or justices of the peace then present shall be “of opinion that it is not sufficient to put such accused party

upon his trial for any indictable offence, such justice or

justices shall forthwith order such accused party, if in cus“tody, to be discharged as to the information then under

inquiry ; 28 but if, in the opinion of such justice or justices, but if other- “ such evidence is sufficient to put the accused party upon his wise, committed.

“ trial for an indictable offence, or if the evidence given raise " a strong or probable presumption of the guilt of such accused “party," the justice or justices are to commit the accused for trial; 29 but before carrying this out, the practice is to hear

the attorney for the accused, to read the evidence over, and Sect. 18. state the charge or charges to the accused, then to caution Depositions him as required by sect. 18, infra, and hear his witnesses; to be read, and accused

and if they conclusively answer the charge or charges the to be justice or justices should discharge the accused. 29 The sect. 18 cautioned.

enacts—“that after the examination of all the witnesses on the “part of the prosecution as aforesaid” (and for the accused,

27 In some cases, the justices being informed that witnesses in court will be called for the accused to prove certain facts, might desire to hear them before coming to a decision, and in such a case he may himself call those witnesses and take their depositions in the usual way before or instead of proceeding to carry out the 11 & 12 Vict. c. 42, s. 18.

28 In the cases within 22 & 23 Vict. c. 17, ante, pp. 945, 946, the prosecutor may enter into a recognizance to prosecute notwithstanding the accused is discharged by the justices.

29 When Justices to discharge or commit Accused.] In Cox v. Coleridge (1 B. & C. 50), Mr. Justice Bayley observed, -.“I think that a magistrate is clearly bound, in the exercise of a sound discretion, not to commit any one unless a primâ facie case is made out against him by witnesses entitled to a reasonable degree of credit.” Justices ought not, therefore, to balance the evidence and decide according as it preponderates, for this would, in fact, be taking upon themselves the functions of the petty jury, and be trying the case ; but they should consider whether or not the evidence makes out a strong, or probable, or even a conflicting case of guilt; in any one of which cases they should commit the accused to trial. If, however, from the slender nature of the evidence, the unworthiness of the witnesses, or the conclusive proof of innocence produced on the part of the accused, they feel that the case is not sustained, and that if they sent it for trial he must be acquitted, they should discharge the accused.

c. 42.

30 & 31 Vict. c. 35, s. 3, post, p. 959] « shall have been 11 & 12 Vict. "completed, the justices of the peace, or one of the justices

Sect. 18. " by or before whom such examination shall have been so “completed as aforesaid, shall, without requiring the attend

ance of the witnesses, read or cause to be read to the accused “the depositions taken against him, and shall say to him “ these words, or words to the like effect:

* Haring heard the evidence, do you wish to say anything in answer to the charge ? you are not obliged to say anything " . unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you

upon your trial;' 30 And whatever the prisoner shall then say in answer thereto Statement to " shall be taken down in writing (N) and read over to him,- evidence on

be read as " and shall be signed by the said justice or justices,—and trial. “ kept with the depositions of the witnesses,—and shall be “ transmitted with them as hereinafter mentioned ;-and after"wards upon the trial of the said accused person the same " may, if necessary, be given in evidence against him ;-with“out further proof thereof, unless it shall be proved that the " justice or justices purporting to sign the same did not in “ fact sign the same;-provided always, that the said justice First proviso " or justices, before such accused

and further shall make person

any state.

caution. “ment, shall state to him, and give him clearly to understand, " that he has nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been holden out to him to induce him to make any admission or confession of his guilt, but whatever he shall then say may be given in " evidence against him upon his trial, notwithstanding such pro" mise or threat :-provided, nevertheless, that nothing herein Second pro“ enacted or contained shall prevent the prosecutor in


any case “ from giving in evidence any admission or confession or “ other statement of the person accused or charged, made at

30 The words “should you be committed for trial" might with propriety be added to this statutory caution after the word “trial,” because, should the witnesses, if any, called for the accused, who may, under 30 & 31 Vict. c. 35, s. 3, be called at this stage of the inquiry, exculpate the accuse he should be discharged by the tices under 11 & 12 Vict. c. 42, s. 25, supra. Pursuant to 30 & 31 Vict. c. 35, s. 3, there should be also added to this caution after the last-suggested addition—" Do you desire to call any witness ? If you do, it must be done after you have made your oun statement."

Receiving evidence for the accused party.

any time, which by law would be admissible as evidenco “ against such person.” 31

Before the passing of the 30 & 31 Vict. c. 35, justices were not bound to receive evidence offered for an accused; but if he were charged with having stolen property, and gave a reasonable account of how he came by it, and referred to some person as the person from whom he received it, the magistrate should have sent for, and should now send for, and examine that person with a view to exonerate or to contradict the accused ; 32 not, however, where the accused gives two different accounts, although it may be prudent to have the persons at the trial; 33 nor where circumstances exist in the case which render that account unreasonable, or its truth improbable. 34 Where a person charged with felony has witnesses in attendance at the time of the examination before the magistrate, Lord Denman, C. J., recommended that they should be then examined if the prisoner wished it, and if their evidence is believed, and

31 Cases on Statement of Accused-Statement of his Counsel or Attorney.] See ante, pp. 950, 951, and Notes 20 and 24. See as to the admissibility of the statement, Reg. v. Sansome, 19 L. J. (N. S.) M. C. 143; 1 Den. C. C. 545; 3 C. & K. 332 ; Reg. v. Bond, 19 L, J. (N. S.) M. C. 138 ; 1 Den. C. C. 517. The particular enactment contained in the first proviso to sect. 18, supra, is directory only (cases Id.); and if the statement appears upon the face of it to have been duly taken, and to have been transmitted with the depositions, it is receivable in evidence without further proof (Reg. v. Harris, 4 Cox, C. C. 147, per Erle, J.). Mr. Justice Coleridge, in July, 1850, in his charge to a grand jury, said, in speaking of the prisoner's statement, —-“Now it would simplify the matter very much if, as well as printing the first part given in the schedule of the act, you were also to print the latter part, so as to prevent any difficulties when the case comes to trial.” The words recommended should be added in these terms: "And you are also clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to you to induce you to make any admission or confession of your guilt ; but whatever you shall now say may be given in evidence against you upon your trial, notwithstanding such promise or threat." See 3 Russell on Crimes, 4th ed. p. 445. In many cases the accused simply says that he leaves his defence in the hands of his counsel or solicitor, instead of making a statement. In these cases, as the counsel or solicitor's argument in defence is not taken down in writing, and therefore will not be in possession of the court before whom the accused is tried, it is usual in important cases for a written statement of the accused, prepared by his legal adviser, to be handed in to the justices and to form part of the depositions to be transmitted to the court above.

32 Reg. v. Crowhurst, 1 Car. & K. 370 ; Reg. v. llughes, 1 Cox, C. C. 176; Reg. v. Smith, 2 Car. & K. 207, per Denman, C. J.

33 Reg. v. Dibley, 2 Car & K. 818. In Reg. v. Wilson (26 L. J. (N. S.) M. C. 45 ; 1 Dears. & Bell, C. C. 157), it was held, that it is not necessarily incumbent on the prosecution to call the persons to whom the prisoner has referred to disprove his statement.

34 Rog, v. Harmer, 3 Cox, C. C. 487.

c. 35.

answers the charge, no further proceedings need be taken ; 30 & 31 Vict. but if these witnesses contradict those for the prosecution in

Sect. 3. material points, the case should be sent to a jury, and the depositions of the accused's witnesses should be taken and signed by them and transmitted to the judge, together with the depositions in support of the charge. 35 Now, by 30 & 31 Accused Vict. c. 35, s. 3, after reciting that “complaint is frequently asked by

person to be " made by persons charged with indictable offences, upon justice if he

desire to call " their trial, that they are unable by reason of poverty to call witnesses. " witnesses on their behalf, and that injustice is thereby occa"sioned to them; and it is expedient to remove, as far as " practicable, all just ground for such complaint,” enacts, " in * all cases where any person shall appear or be brought be"fore any justice or justices of the peace, charged with any " indictable offence, whether committed within this realm or " upon the high seas or upon land beyond the sea, and whether "such person appear voluntarily upon summons, or has been * apprehended with or without warrant, or be in custody for " the same or any other offence, such justice or justices before "he or they shall commit such accused person for trial or "admit him to bail, shall, immediately after obeying the “ directions of the eighteenth section of the act eleventh and "twelfth Victoria, chapter forty-two" (ante, p. 952), “demand " and require of the accused person whether he desires to call

any witnesses ;—and if the accused person shall, in answer

to such demand, call or desire to call any witness or wit"nesses, such justice or justices shall, in the presence of such " accused person, take the statement on oath or affirmation, “ both examination and cross-examination, of those who shall "be so called as witnesses by such accused person, and who “shall know anything relating to the facts and circumstances " of the case or anything tending to prove the innocence of “such accused person, and shall put the same into writing; 36 " and such depositions of such witnesses shall be read over to Their deposi

tions to be “and signed respectively by the witnesses who shall have taken and re“ been so examined, and shall be signed also by the justice or turned to

justices taking the same, and transmitted in due course of court of trial


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35 2 Car. & Kir. 845, Taunton Lent Assizes, 1849.

36 Vide fort No. 54, Oke's “Formulist,” 6th ed. pp. 492, 493, adapted to this enactment. These witnesses for the accused, if tendered, should be examined notwithstanding the charge be one of libel under 6 & 7 Vict. e. 96, which can only be justified before a jury.

c. 35.

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30 & 31 Vict. “ law with the depositions, and such witnesses, not being

" witnesses merely to the character of the accused, as shall in “ the opinion of the justice or justices give evidence in any

way material to the case or tending to prove the innocence of the accused person, 37 shall be bound by recognizance to

appear and give evidence at the said trial ;--and afterwards,

upon the trial of such accused person, all the laws now in force relating to the depositions of witnesses for the prose“cution shall extend and be applicable to the depositions of

" witnesses hereby directed to be taken." Provisions of Sect. 4. “All the provisions of the said act eleventh and 11 & 12 Vict. C. 42, ex

“twelfth Victoria, chapter forty-two, relating to the summontended to this “ing and enforcing the attendance and committal of wit

nesses, and binding them by recognizance and committal in Sect. 4.

“default, and for giving the accused person copies of the " examinations, and giving jurisdiction to certain persons to “ act alone, shall be read and shall have operation as part of

" this act.” 38 Sect. 5. Sect. 5 (set out, post, p. 985) authorizes the court where the

accused is tried to allow the expenses of the witnesses called by him who are bound over by the justices to give evidence on the trial.


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[Vide N, No. 34, Oke's Formulist, 6th ed. pp. 492, 493.]

5. Examination for an Offence in another Jurisdiction. 11 & 12 Vict. c. 42, s. 11, ante, p. 897, provides regulations for the backing of a warrant and the arrest of the accused thereunder, and bringing him before the justice who backed it, if so directed, who may then take the examination of the witnesses (see sect. 22, infra).

11 & 12 Vict. c. 42, s. 11. Where accused is arrested under a backed warrant.

37 Not actually proving the innocence of the accused, for in that case it is apprehended the accused must be discharged, as sect. 25 of 11 & 12 Vict. C. 42, then comes into operation, this provision of 30 & 31 Vict. c. 35, s. 3, being taken as a part of sect. 18 of 11 & 12 Vict. c. 42.

38 The provisions referred to in the 11 & 12 Vict. c. 42, as to summoning witnesses, are in sect. 16, ante, p. 939; binding them by recognizance and committal, sect. 20, post, p. 966 ; giving accused copies of depositions, sect. 27, post, p. 967; and as to jurisdiction of certain persons to act alone, see sect. 29, as to metropolitan police and stipendiary magis. trates, and sect. 30 as to the lord mayor and an alderman of the city of London.

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