5

containing more counts than one showing whether such counts refer A.D. 1878. to the same or to different facts.

A count charging a previous conviction may be in the form shown in the example (OO.) in the first schedule hereto, or to the like effect.

SECTION 403.

JOINDER OF COUNTS AND PROCEEDINGS THEREON.

Any number of counts, either for the same or for different offences, may be included in the same indictment, and the jury may find either generally that the defendant is guilty or not guilty upon the 10 whole indictment, or that he is guilty upon one or some, and not guilty upon other, counts, or in the alternative that he is guilty upon one or more of several counts.

If different counts relate to different facts, and if the court thinks it conducive to the ends of justice to do so, it may direct that the 15 defendant shall be tried separately upon any one or more of such

20

counts. Such order may be made either before or in the course of the trial, and if it is made in the course of the trial the jury shall be discharged from giving a verdict on the counts on which the defendant is directed to be tried separately.

If the jury find the prisoner guilty generally on the whole indictment, the legal effect of such finding shall be to convict him of each of the offences charged against him, and the court may thereupon pass upon him the same sentence as if he had been separately convicted of every such offence, provided that not more than one 25 sentence shall in any case be passed upon any person upon the same facts.

If the defendant is convicted in the alternative of having committed one of several offences, he may be sentenced to any punishment which might have been awarded to him if he had been 30 convicted only of that offence for which the greatest punishment which can be awarded is least severe.

35

If one judgment is passed upon any such verdict it shall be good if the indictment contains any count in respect of which it might have been passed.

SECTION 404.

CHARGE OF PREVIOUS CONVICTION.

When an indictment contains a count charging the defendant with having been previously convicted, the defendant shall not at the time of his arraignment be required to plead to it unless he plead 40 guilty to the rest of the indictment, nor shall such count be men

A.D. 1878. tioned to the jury when the defendant is given in charge to them, nor shall he be tried upon it if he is acquitted on the other counts, but if he is convicted of any other part of the indictment, he shall, before he is called upon to say why judgment should not be passed upon him, be asked whether he has been previously convicted as 5 alleged or not, and if he says that he has not, or does not say that he has, the jury shall be charged to inquire into the matter as in other cases.

SECTION 405.

WHERE A DEFENDANT MAY BE CONVICTED OF AN OFFENCE DIFFERENT FROM 10
THE ONE CHARGED IN THE INDICTMENT.

(a.) If the offence charged in the indictment is so defined that
if part of the definition were omitted the remainder would constitute
an offence, and if so much only of the whole indictment as
stitutes such last-mentioned offence is proved, the defendant may, 15
without amending the indictment, be convicted of the offence which
he is proved to have committed.

(b.) If it is proved that the defendant attempted to commit the offence charged in the indictment, but did not actually commit it, he may, without amending the indictment, be convicted of attempting 20 to commit the offence, whether such attempt is punishable under any special enactment of any statute or under the 33rd section of this Act only. If he is proved to have done any act with intent to commit the offence with which he is charged, and if it is an offence to do such an act with such an intent, he may without amending the 25 indictment be convicted of such last-mentioned offence.

(c.) If the court is of opinion that there is evidence for the consideration of the jury that the defendant has committed an offence or offences with which he is not charged in the indictment, and of which he cannot be convicted without amending it, and upon his 30 conviction for which he would not be liable to a greater punishment than he would be liable to if he were convicted on the indictment, and that the defendant would not be prejudiced thereby in his defence, the court may in its discretion direct a count or counts to be added to the indictment charging the defendant with such offence 35 or offences, and the jury shall give their verdict thereon in the same way as if such count or counts had formed a part of the original indictment.

SECTION 406.

HOW IF EVIDENCE PROVES A MORE SERIOUS OFFENCE.

If upon the trial of any indictment it appears to the court that there is evidence for the consideration of the jury that the defendant

40

10

15

has committed an offence upon a conviction for which he would be A.D. 1878, liable to a more severe punishment than could be awarded to him upon a conviction of the offence for which he is being tried, the court may in its discretion discharge the jury from giving any 5 verdict upon the indictment on which the defendant is being tried, and may order the defendant to be indicted for such first-mentioned offence, and if necessary bind over the prosecutor and the witnesses to appear, prosecute, and give their evidence upon the trial of such indictment.

The defendant shall not be entitled to be acquitted of the minor offence if the court do not think proper to discharge the jury as aforesaid, but if he is convicted thereof he shall not be liable to be convicted upon the same facts of any other offence of which he might then have been convicted.

SECTION 407.

WHAT OBJECTIONS MAY BE TAKEN TO AN INDICTMENT AND WHEN.

If an indictment does not state, and cannot by any amendment authorised by the provisions herein-before contained be made to state, any indictable offence of which the defendant has had notice. 20 by depositions or affidavits under the provisions herein-before contained, it shall be quashed either on a motion made before the defendant pleads or on a motion made in arrest of judgment. A written statement of every such motion shall be delivered to the officer of the court by the defendant, and shall be entered upon the 25 record. It may be in the form given in the schedule (SS.), or to the like effect.

SECTION 408.

SPECIAL PLEAS.

Special pleas in abatement or in bar of the indictment, and 30 further pleadings thereon, shall be in writing in the form given in form (TT.) in the first schedule hereto, or to the like effect, and shall be entered upon the record.

35

40

The following pleas, and no others, may be pleaded in abatement of an indictment:

(a.) A plea that the court has not and that some other court has jurisdiction over the offence or over the offender. If judgment is given in favour of the defendant upon such a plea the court shall send the indictment to be tried before the court which has jurisdiction over the offence or over the offender.

(b.) A plea that one bill was found was not

or more of the grand jurors by whom the
qualified to act as a grand juror. If judg-

A.D. 1878. ment is given in favour of the defendant upon this plea the court shall, if the grand jury are not discharged, direct the bill to be sent again before the grand jury, and direct the juror or jurors who are not qualified to withdraw themselves therefrom. If the grand jury has been discharged, or if there are not a sufficient 5 number of qualified grand jurors to find a bill, the court shall adjourn the case until a future time, and recommit the defendant to custody, or admit him to bail, and bind over the prosecutor and witnesses to appear before another grand jury.

The following special pleas, and no others, may be pleaded in 10 bar; that is to say :

(i.) A plea that the defendant has been previously convicted or acquitted, as the case may be, of the same offence; or

(ii.) A plea that the defendant has been pardoned for his offence by Her Majesty; or

15

(iii.) In the case of a defendant charged with a defamatory
libel a plea that the defamatory matter published by him was
true, and that it was for the public benefit that the matters
charged should be published in the manner and at the time
when they were published. Every such plea must be in writing, 20
and must set forth the particular fact or facts by reason of
which it was for the public good that such matters should be
so published, and the defendant must give such notice to the
prosecutor of his intention to plead it as the court at the trial
may consider reasonable, in default of which notice the court 25
may refuse to permit the plea to be pleaded, or may adjourn
the trial of the case upon such terms as it thinks fit. The
defendant may in addition to such plea plead that he is not
guilty. The prosecutor may reply to such plea that he denies
its truth.

When notice is given to the prosecutor of the defendant's intention to plead any such plea he may apply to any judge of the High Court for any order in respect thereof for which he might apply if a justification were pleaded in a civil action for libel.

If any such special plea, as is firstly or secondly referred to, is pleaded and denied to be true in fact, the court shall impannel a jury of any twelve indifferent persons to try whether such plea is true in fact or not.

30

35

If the court holds that the facts alleged by the defendant do not 40 prove the plea, or if the jury finds that it is false in fact, the defendant shall be required to plead to the indictment.

SECTION 409.

SPECIAL VERDICTS.

If the jury wish to find a special verdict the court shall put such questions to them as it thinks necessary to enable itself to raise for 5 the consideration of the Court of Appeal the questions of law which the jury do not wish to decide by their verdict. A special entry shall be made in the record of such questions and of the answers thereto given by the jury, and the court shall also draw up such a statement of the circumstances of the case as will enable the 10 Court of Appeal to understand the object and effect of the said questions and answers, and in the same form as a case reserved for the opinion of the Court of Appeal. The provisions herein-before contained as to settling other special entries in the record shall apply to such statements. The subsequent proceedings upon such a 15 verdict shall be the same as upon a case reserved for the opinion of the Court of Appeal, provided that the court before which the trial is had shall not pass judgment upon the defendant until the Court of Appeal has given its decision.

20

SECTION 410.

TIME FOR PRESENTING INDICTMENT IN CERTAIN CASES.

No indictment shall be presented against any person for high treason, or for being accessory after the fact to any treason more than three years next after the committing of the offence, unless the defendant is charged with an offence against section 34. sub-section 25 (a) or (b) of this Act, or unless the offence was committed out of Her Majesty's dominions or at sea.

30

No indictment shall be presented against any person for any offence against sections 65, 66, or 67 of this Act after five years from the time when the offence was committed.

No indictment shall be presented against any person for any of the offences referred to in the first column of the schedule hereto, unless proceedings are commenced against the offender in respect thereof, either by laying an information before a magistrate, or otherwise within the time limited in that behalf in the second 35 column of the said schedule.

A.D. 1878.