Hearing case for the complaint.] If the defendant does not admit the truth of the complaint, then the justice proceeds to hear such evidence as may be adduced in support of it (v). There is no express provision in the Petty Sessions Act, giving the right to the complainant or his counsel to make an opening statement; but there can be little doubt but that it was the intention of the legislature that he should have the right to state his case (w). For the purpose of the complainant substantiating his case by testimony, he must either prove the case himself, or call his witnesses to prove the facts alleged (x). Ordering witnesses out of court.] At this stage of the proceedings, it is probable that the complainant or defendant will apply to have the witnesses kept out of court until called upon to give evidence, in which case it will be proper for the justices (though not compulsory upon them), to comply with the request, and direct that all the witnesses on both sides should await somewhere outside the court until called in. This application is one to the discretion of the magistrates, and they may accede or not to the application, and direct in what manner it may be carried out (y). An exception, however, is always made in favour of medical witnesses (when their evidence is merely to medical facts) and to the respective attorneys of the parties. The defendant, too, notwithstanding he is to be called as a witness, will have a right to remain, it being an act of justice to him that he should hear the case made against him, and which he has to answer. Should, however, any of the witnesses, in defiance of this order, remain in court, the justices will have no right to exclude their testimony, though such conduct will properly be the subject for strong observations, and will naturally weaken the strength of their evidence (z). Examination of witnesses to be taken down.] When justices see Man v. Davers, 3 B & Ald. 103; taking their evidence, and their Paley on Conv. 86. (v) 14 & 15 Vic. c. 93, s. 20. (w) See 14 & 15 Vic. c. 93, ss. 9 & 20. (x) The power of compelling the attendance of witnesses, the way they are to be sworn, the mode of competency have been already discussed, vide ante, chap. 8. (y) See Selfe v. Isaacson, 1 F. & F. 194. (2) Cook v. Nethercote, 6 C. & P. 741; Chandler v. Horne, 2 M. & Rob. 423. proceed in summary cases to hear any complaint as to an offence, if required by either party or their agent, they are to take, or cause to be taken, a note of so much of the evidence as is material, in a book kept for that purpose by the petty sessions clerk, and the justice is to sign the book on the same day (a). It is, however, generally laid down that it is the duty of justices to take the examination of the witnesses in writing (b), in order that if called upon they may be enabled to set it forth with accuracy (c); and also for their own assistance and protection, in the event of proceedings being adopted in respect of their adjudication (d). Contempt of court.] It is provided by the 9th section of the Petty Sessions Act (e), that if any person shall wilfully insult any justice sitting in any court or place, or shall commit any other contempt of any such court, he may by verbal order direct the offender to be removed or taken into custody, and at any time before the rising of the court by warrant commit him to gaol for a period not exceeding seven days, or fine him in a sum not exceeding two pounds. As the contempt of court is more likely to be committed by a prisoner, and that after the magistrate has passed sentence on him, the magistrate has a right, under the above section, to award an extra amount of punishment to take place on the expiration of the first (f). The evidence to be confined to the information or complaint.] The adjudication of the justices should be confined within the limits of the information or complaint, and the evidence allowed to be given before them should be restricted to what is clearly per (a) 14 & 15 Vic. c. 93, s. 20. (b) In re Rix, 4 D. & R. 352 ; R. v. Marsh, 4 ib. 263. (c) R. v. Warnford, 5 D. & R. 489. (d) Paley on Conv. 97. The magistrate who convicts must have heard the evidence, and not allow it to be taken in his absence by his clerk, or any other person; R. v. Inhabts. of Darton, 12 A. E. 78; Caudle v. Seymour, 1 Q. B. 889. (e) See App. 14 & 15 Vic. c. 93, (f) It is not necessary to state in the warrant what the insult was; Levy v. Moylan, 10 C. B. 189. It may be mentioned that a criminal information will not be granted for mere words spoken against a magistrate, imputing to him corrupt conduct in his magisterial capacity, if unaccompanied by acts tending directly to obstruct the exercise of his functions ex parte the Duke of Marlborough, Bittleston & Symons, R. 26. tinent to the subject matter under investigation. Thus, where on an application for sureties to keep the peace, an assault as well as a threat was proved, and the justices not only ordered the defendant to find sureties, but also, notwithstanding the protest of the complainant, convicted the defendant of an assault, a certiorari was granted for the purpose of quashing the conviction (g). Proof of facts.] The degree of evidence, provided it be legally admissible, and the credit due to the witnesses, are exclusively for the judgment of the magistrates (h). In this respect they are placed in the position of a jury, if there were such evidence before the magistrates as would be sufficient to be left to the jury (i). As proceedings before justices, however, are usually of a criminal and penal nature, and as they are substituted for a jury of twelve men, who must, in order to convict, have all been satisfied by the evidence of the criminality of the defendant, the evidence ought to be fully satisfactory and convincing to the mind and conscience of the magistrate, before he pronounces the party to have been guilty. If any reasonable doubts exist in his mind, the party charged is entitled to the benefit of that doubt (j). Of fact within jurisdiction.] The fact proved must appear to be within the jurisdiction of the convicting magistrate (k). Any variance between the information and the evidence adduced in support thereof, as to the place in which the offence is alleged to have been committed, is not to be deemed material, provided it be proved to have been committed within the jurisdiction of the justices hearing the information (1). Time of offence.] The evidence ought also to fix a certain date to the offence in respect of time (m). As a certain time is usually limited by statute for a summary prosecution before justices, it is necessary, on that account, to fix the offence to (g) R. v. Deny, 2 L. M. & P. 230. (h) R. v. Bolton, 1 Q. B. 66; ex parte Aldridge, 4 D. & R. 83; re Geswood, 2 El. & Bl. 952; re Js. of Bristol, 23 L. J. M. C. 213; Paley on Conv. 98. (i) R. v. Reason, 6 T. R. 375; R. v. Bolton, 1 Q. B. 66. (j) 2 Stark. Ev. 414. (k) R. v. Highmore, 2 Ld. Raym. 1220; R. v. Jeffries, 1 T. R. 241. (7) 14 & 15 Vic. c. 93, s. 39. (m) Paley on Conv. 99; R. v. Fuller, 1 Ld. Raym. 510. a certain date, in order that the proceeding may appear to be within the prescribed period (n). It is provided by the Petty Sessions Act (o), that in all cases of summary jurisdiction coming within the operation of the statute, the complaint must be made, when it relates to the non-payment of any poor-rate, county-rate, or other public tax, at any time after the date of the warrant authorizing its collection; when it relates to the non-payment of money for wages, hire, or tuition, within one year from the termination of the term or period in respect of which it is payable; when it relates to any trespass, within two months from the time when the trespass occurred; and in any other case, within six months from the time when the cause of complaint arose (p). By the same statute (q) a variance between the information and the evidence as to the time of committing the offence is not to be deemed material, if it be proved that the information was in fact laid within the time limited by law for laying the same. Negativing exemptions.] If the information or complaint negatives any exemption, exception, proviso, or condition in the statute on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant may prove the affirmative thereof, if he will have advantage of the same (r). Slight evidence, however, on the part of the defendant will be sufficient to make a prima facie case, and call upon the plaintiff to rebut it (s). Proof of damage.] Where the magistrate is empowered to award certain damages by way of compensation to the party injured, there must be proof of some precise number or quantity by which the damage may be measured, as under 24 & 25 Vic. c. 97, for damage to real or personal property (t). Of the defence.] When the magistrate has heard the evidence (n) Ib., and see R. v. Woodcock, 7 East, 146; Cathcart v. Hardy, 2 M. & S. 534. (0) 14 & 15 Vic. c. 93, s. 10. (p) See ante, p. 34. (q) Sec. 39; see what cases are excluded from the operation of this act, s. 42. (r) 14 & 15 Vic. c. 93, sec. 20; R. v. Stone, 1 East, 653; R. v. (8) Smith v. Jeffries, 9 Price, 257. (t) See R. v. Burnaby, 2 Ld. Raym. 900; Charter v. Greame, 13 Q. B. 216; see also Paley on Conv. 106. in support of the complaint, then he is to hear the defence, and such evidence as may be adduced on behalf of the defendant (u). Claim of right.] Besides a denial of the charge, the accused may defend himself by proving that he is within some proviso or exception, which excuses or qualifies the fact charged; or, that the act complained of was done under an asserted authority, or pursuant to a claim of right or property (v). Former conviction or acquittal.] A former conviction for the same fact would be a good defence; and a former acquittal upon the merits of the same offence will be an answer to a second information in respect of it, against the same party (w). Certificate of dismissal.] By the 24 & 25 Vic. c. 100, ss. 44, 45, if the justices upon the hearing of any case of assault or battery upon the merits (a) mentioned in the preceding sections of that statute shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they are directed forthwith to make out a certificate of dismissal and deliver it to the defendant, and this will operate as a release from all further or other proceedings, civil or criminal, for the same offence. The word forthwith in this section means upon the application of the party entitled to the certificate (y). Evidence in reply.] If the defendant has examined any witnesses, or given any evidence, other than as to his general character, the prosecutor or complainant may examine witnesses in reply (z). Observations in reply not allowed.] The prosecutor or complainant, however, is not entitled to make any observations in reply upon the evidence given by the defendant; nor is the defendant entitled to make any observations in reply upon the evidence given by the prosecutor or complainant (a). When the case has closed on both sides, the magistrate either convicts the party, or dismisses the information or complaint. These provi (u) 14 & 15 Vic. c. 93. s. 20. (v) Paley on Conv. 117. See as to claim of right ousting the jurisdiction of a magistrate, ante, p. 26. (w) See also 24 & 25 Vic. c. 96, s. 109, Larceny Act. (c) That is, the decision of the jus tices must be after having heard the evidence. (y) Costar v. Hetherington 5 Jur. N. S. 985, Q. B. (2) 14 & 15 Vic. c. 93, s. 20. |