Consequences of not obeying the subpana. Attendance of a witness who is in custody. Witnesses' privilege from arrest. In the event of the non-appearance of a witness in answer to a subpœna, he incurs certain penalties. If the writ has been sued out of the Crown Office, the Queen's Bench, upon application, will grant an attachment for the contempt of court. In other cases the proceedings must be by way of indictment (g). But to render a witness subject to these penalties, he must have been served personally, and served a reasonable time before trial. If his expenses have not been tendered, and he is so poor as not to be able to go to the trial, this will probably be allowed by the court as a sufficient excuse. If the witness is in custody, the proceedings are different. If in criminal custody, a secretary of state, or any judge of the superior courts, may, on application by affidavit, issue a warrant or order under his hand for bringing up such person to be examined as a witness (h); or his attendance may be secured by a writ of habeas corpus ad testificandum. If in civil custody, a writ of hab. corp. ad test. is obtained upon motion in court or application to a judge in chambers, founded upon an affidavit stating that he is a material witness. If the evidence of a person in court is required, he is bound to give it, although he has not been subpoenaed. A witness, whether subpoenaed or bound over by recognizance, either to prosecute or give evidence, is privileged from arrest whilst attending the trial on every day of the assizes or sessions until the case is tried; also for a reasonable time before and after trial whilst coming to or returning from the place of trial. As we have seen, preventing a witness from attending or giving evidence is a contempt of court; and (g) v. Arch. 321. (h) 16 & 17 Vict. c. 30, s. 9. intimidating a witness from giving evidence for the prosecution is a misdemeanor (i). witnesses for As to witnesses' expenses.-In felonies, the court may Expenses of order the payment to the prosecutor and his witnesses the prosecuof a reasonable sum for expenses, trouble, and loss of tion. time; and this whether the result of the trial be a conviction or acquittal, or no bill be found (j). And although no bill be preferred, a like reasonable sum may be ordered to be paid to those who bond fide attend the court in obedience to their recognizances or subpœna. The amount to be paid for the attendance before the examining magistrate must be ascertained by the certificate of the magistrate granted before the trial (). Further, if a charge is made bond fide on reasonable and probable cause, although there has been no committal for trial, the magistrate before whom the accused was brought and examined may grant to any witness examined a certificate of his expenses (1). In very many cases of misdemeanor there is a like power of ordering payment of witnesses' expenses. The particular misdemeanors will be found mentioned in 7 Geo. 4, c. 64, s. 23; 14 & 15 Vict. c. 55, ss. 2, 3 ; and other statutes which deal with individual offences. Each of the Criminal Consolidation Acts provides that the court, before whom any indictable misdemeanor punishable under such Act is prosecuted or tried, may allow the expenses of witnesses, as in felony; and in prosecutions by the treasury in coinage offences shall allow such expenses (m). (i) v. p. 96. (j) 7 Geo. 4, c 64, ss. 22, 24, 25. (k) Ibid. s. 22. () 29 & 30 Vict. c. 52 (a temporary statute since continued yearly). This statute applies also to misdemeanors. (m) 24 & 25 Vict. c. 96, s. 121; c. 97, s. 77, c. 98, s. 54; c. 99, s. 42; c. 100, s. 77. Expenses of witnesses for the defence. Payment of costs by the defendant. In a similar manner, in certain indictable offences dealt with by the magistrates in the exercise of their summary jurisdiction, the magistrate may order the payment of witnesses' expenses (n). The So much as to witnesses for the prosecution. court has, however, also discretionary power to order the payment of the expenses of witnesses for the prisoner who appear after having been bound by recognizance by the examining magistrate to give evidence (o). In the event of a conviction for treason or felony, the court may order the prisoner to pay the whole or part of the costs of the trial; and in cases of assault the defendant, on conviction, may be made to pay the prosecutor's costs and a reasonable allowance for loss of time (p). It will be remembered that in cases under the Vexatious Indictments Act the prosecutor may, at the discretion of the court, be required to pay the defendant's costs on the acquittal of the latter (q); and also that, in private prosecutions for the publishing of a defamatory libel, if judgment is given for the defendant, he may recover costs from the prosecutor (r). (n) 42 & 43 Vict. c. 49, s. 28. (p) 33 & 34 Vict. c. 23, s. 3. (q) v. p. 360. (r) 6 & 7 Vict. c. 96, s. 8; v. p. 118. CHAPTER XVI. THE EXAMINATION OF WITNESSES. THIS is a subject on which, though a wide latitude is allowed to counsel, some rules may be laid down as directly authorized, others as developed in and sanctioned by practice. of examina We have already noticed the general course of the General course examination of witnesses (s); namely, that the wit- tion. nesses for the prosecution are first examined in chief by the counsel for the prosecution, and then crossexamined by the counsel for the defence; and after the case for the prosecution has closed, then the witnesses for the defence are examined by the counsel for the defence, and cross-examined by the counsel for the prosecution; in each case the witness being re-examined by the party calling him, if it is thought desirable. It should also be remembered that the court may at any time put such questions as it thinks fit to the witness, even after he has left the witness-box; and that if, after the counsel has finished his examination or crossexamination, he thinks of some other question which ought to have been asked, that question can be put only through or by leave of the court. Through the court, also, are asked questions which occur to the jury. All the witnesses whose names are on the back of What witnesses should the indictment should be called by the counsel for the be called. prosecution; and although he does not ask them any (8) v. p. 399. Witnesses ordered out of court. Functions, &c. of the counsel for the prosecution; of the counsel for the prisoner. question or even call them, the defence may have them called, so that they may be subjected to cross-examination. But in such a case the counsel for the prosecution may re-examine (t). When any collusion is suspected among the witnesses, or it is thought that any of them will be influenced by what they hear from counsel or other witnesses, those who have not yet been examined are ordered to leave the court until they are wanted, and after examination they are required to remain in court. The judge will do this, either at his own instance, or on the application of the opposite party. If the order be disobeyed, the witness may be punished as for his contempt; but, though the disobedience will be matter of remark for the jury, the judge has no right to reject his testimony (u). At the outset it will be well to acertain the position of the counsel for the prosecution and for the defence respectively, their functions and conduct, their respective parts, and the spirit in which they should conduct them. It is needless to observe that it is not the object of the counsel for the prosecution to get a conviction at any price. It is his duty to see that the case against the prisoner is brought out in all its strength; but it is not his duty to conceal, or in any way diminish the importance of, its weak points. His function is not to inquire into the truth, but to put forward, with all possible candour and temperance, that part of it which is unfavourable to the prisoner (v). On the other hand, the counsel for the prisoner has before him, as his object, the acquittal of the prisoner. His duty is to act as an advocate, and not to any (t) R. v. Edwards, 3 Cox, 82; R. v. Beezlen, 4 C. & P. 220. (v) Fitz. St. 160. |