Sect. 18.
NOTE.

The prosecution must prove affirmatively that a prisoner's confession was free and voluntary, and was preceded by no inducement to make a statement held out by a person in authority (Reg. v. Thompson, [1893] 2 Q. B. 12; 57 J. P. 313; 62 L. J. M. C. 93; 17 Cox C. C. 641).

This section does not render inadmissible in evidence on the trial a statement voluntarily made by the prisoner before a magistrate when brought up on application for a remand (Reg. v. Stripp, 20 J. P. 279; 25 L. J. M. C. 109; 1 Dear. C. C. 648; 2 Jur. 452). The caution and warning prescribed by the statute are intended to apply to the final proceeding only, when, after all the witnesses have been examined, the prisoner is asked whether he has anything to say in answer to the charge, and the statute does not exclude any declaration or voluntary statement made by the person accused before, during, or after the inquiry.

arson.

Caution to Prisoner.-With reference to the caution to be given to the accused, the following may be noticed: C. was examined on oath as a witness before commissioners having jurisdiction to inquire into the origin of fires, there being no charge against any individual, and no caution was given to the witness. C. signed his depositions, and he was afterwards charged with On appeal to the Judicial Committee of the Privy Council from a judgment of the Queen's Bench of Quebec, Canada, it was held that the depositions of C. were admissible in evidence against C. on the trial, and that the caution required to be given to accused persons by 11 & 12 Vict. c. 42, s. 18, does not apply to witnesses who are asked questions tending to criminate them (Reg. v. Coote, 37 J. P. 708; 42 L. J. M. C. 45; 21 W. R. 553; 29 L. T. 111 ; 4 L. R. C. P. 599). And the reason for so ruling is thus given: "The depositions on oath of a witness legally taken are evidence against him should he be subsequently tried on a criminal charge, except so much of them as consists of answers tending to criminate him, and to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends on the maxim, Nemo tenetur seipsum accusare, but does not apply to answers given without objection, which are to be deemed voluntary."

Procedure under this Section.-With reference to s. 18 and the preceding section, the following opinion, which is understood to have been given on a case submitted by the Leeds justices to the then Attorney-General, Sir A. E. Cockburn, and cited in 15 J. P. 463, may be referred to :

"1. The language of s. 17 admits of the construction, and the interests of justice require, that magistrates should hear and examine such of the witnesses offered by a prisoner as appear (in the language of the statute) to know the facts and circumstances of the case.

"The time for calling on the prisoner to make his statement is when the examination of the witnesses for the prosecution is completed, and this will in general be the most rational and convenient time for taking the examinations of the prisoner's witnesses,

which ought to be taken viva voce and reduced to writing, and signed and certified in the same way as examinations taken on the part of the prosecution.

"3. The examination of the prisoner's witnesses should be transmitted to the sessions or assizes, with the examinations of witnesses for the prosecution.

"4. It is not the duty of the magistrates to bind over the prisoner's witnesses, with the exception of any who, though adduced for the prisoner, appear to be material for the prosecution.

"5. It is incumbent on the prosecutor to have in readiness at the trial all who have been bound over as witnesses for the prosecution. "6. The costs of the prisoner's witnesses (i.e., those of them not bound over for the prosecution) cannot be included in the examining magistrate's certificate of expenses."

Accused Person to be asked by Justice if he Desire to Call Witnesses, and their Depositions to be Taken and Returned to Court of Trial if Accused Person call any.-Now, by the Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 3, the justice or justices, before he or they shall commit the accused person for trial or admit him to bail, shall, immediately after obeying the directions of s. 18 of the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), demand and require of the accused person whether he desires to call any witness; and if the accused person shall in answer to such demand, call or desire to call any witness or witnesses, such justice or justices shall, in the presence of such accused person, take the statement on oath, 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; and such depositions of such witnesses shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same, and transmitted in due course of 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, 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 prosecution shall extend and be applicable to the depositions of witnesses hereby directed to be taken.

The Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 1 (h), provides that "nothing in this Act shall affect the provisions of section 18 of the Indictable Offences Act, 1848, or any right of the person charged to make a statement without being sworn." If the accused person applies to be called as a witness, his evidence should be taken (like that of an ordinary witness for

Sect. 18.

NOTE.

Sect. 18.

NOTE,

the defence) after he has been asked if he desires to call any witnesses.

A prisoner, who is defended by counsel, can make a statement to the jury without being sworn before his counsel addresses the jury instead of giving evidence under the Criminal Evidence Act, 1898 (Rex v. Pope, 18 T. L. R. 717). On prisoner's statements and evidence, see an article at 64 J. P. 321.

Court will not Interfere with the Conduct of Case before Justices-Questions for Justices in Committing for Trial— What Evidence for Defendant to be Taken, and Effect and Object of Provisions of 30 & 31 Vict. c. 35, s. 3.-In R. v. Carden, 5 Q. B. D. 1 ; 44 J. P. 119; 49 L. J. M. C. 1; 41 L. T. 504; 28 W. R. 133; 14 Cox C. C. 359, an application for a mandamus to a justice to hear certain evidence upon an information for libel laid before him under s. 5 of 6 & 7 Vict. c. 96. The reference to the statute passed in consequence of the decision therein, will be found post, p. 350. In his judgment in the case, COCKBURN, L.C.J., commented upon the duties of justices in hearing cases under 11 & 12 Vict. c. 42. He said, at p. 5 of 5 Q. B. D.: "In the present case we are applied to, while the case is under consideration, to interfere and direct the magistrate as to the course he shall pursue. While we have authority to issue a mandamus to hear and determine, we have no authority to control the magistrate in the conduct of the case, or to prescribe to him the evidence which he shall receive or reject, as the case may be. It is said that in this case the magistrate has declined jurisdiction. That involves the question whether he had jurisdiction to hear this evidence. The duty and province of the magistrate before whom a person is brought with a view to his being committed for trial or held to bail is to determine, on hearing the evidence for the prosecution and that for the defence, if there be any, whether the case is one in which the accused ought to be put on his trial. It is no part of his province to try the case, and unless there is some further statutory duty imposed on the magistrate the evidence before him must be confined to the question whether the case is such as ought to be sent for trial, and if he exceeds the limits of such inquiry he transcends the bounds of his jurisdiction." And LUSH, J., said: "The first contention is, that the accused person has a right to require the magistrate to receive any evidence which might be serviceable to him if put upon his trial, though it may have no tendency to prove or disprove the charge.'" (The argument was based upon particular phrases in the Acts 2 & 3 Ph. & M. c. 13 (repealed), and the Criminal Law Act, 1826 (7 Geo. 4, c. 64), and 11 & 12 Vict. c. 42.) "Then again, in Jervis' Act, s. 17, it is provided that the justice shall take the statement upon oath or affirmation of those who shall know the facts and circumstances of the case,' and shall put the same into writing. Up to this period, then, it is clear that all that was to be put into writing was the evidence that was material to the charge against the accused, and so matters long continued. Then came Russell Gurney's Act (30 & 31 Vict. c. 35). By s. 3 of that Act

6

provision is made for the first time for taking the evidence of the prisoner's witnesses." The learned judge then says that the object of s. 3 was not to perpetuate testimony for the defendant, but to enable poor people accused of crime to have their witnesses bound over instead of subpoenaing them. "The alternative words in s. 3, anything relating to the facts and circumstances of the case or tending to prove the innocence of the accused,' have, in my opinion, this meaning: evidence may be material to the defence and yet not tend to prove the innocence of the prisoner. There are many charges which include a minor offence, as, for instance, the charge of murder, which includes that of manslaughter. The words would include evidence tending to reduce the crime from murder to manslaughter, though not tending to prove the prisoner entirely innocent. There are many other charges to which the same observation applies, as that of robbery, which may be charged to have been committed with violence, and charges of assaults, which may be of different sorts and degrees. So a charge of libel may be of simple libel or libel aggravated by the knowledge that the libel was false. In all these cases the accused would be entitled to call evidence to reduce the offence charged to the minor offence; and it is, in my opinion, this kind of case which the alternative words of s. 3, to which I have referred, are intended to cover. The general result of the Acts seems to me to be to confine the evidence before the magistrate to evidence tending to prove the guilt or innocence of the accused, or to rebut the charge that is made." See also R. v. Yorkshire JJ., Ex parte Gill, 49 J. P. 729.

In Cox v. Coleridge, 1 B. & C. 50; 2 D. & R. 86, BAYLEY, J., said: "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. See also 48 J. P. 573.

Calling Witnesses for Defendant before Justices. - The following as to the propriety of calling witnesses for the defence before the magistrate may be usually referred to: In a case tried before HANNEN, J., at the Hampshire Assizes, it was sought to prove an alibi, and it appearing that the witnesses called for the purpose had not been examined before the magistrate, the learned judge remarked: In such cases it was a grievous mistake that these witnesses were not called before the magistrates; and the

Sect. 18.

NOTE.

Sect. 18. attorney engaged in the defence acted very wrongly in not calling them, as it left the evidence open to grave suspicion (Vide Law Times, March 12th, 1870, p. 367).

NOTE.

Newspaper Libel Act, 1881.—Under 44 & 45 Vict. c. 60, s. 4, in a prosecution for libel in a newspaper against the proprietor, publisher, etc., a court of summary jurisdiction has power to receive evidence as to the truth of the matter charged in the libel, as to the report being fair and accurate, and published without malice, and as to any matter which under that Act or any other Act or otherwise might be given in evidence by way of defence by the person charged on his trial on indictment, and the court if of opinion that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case. This section reverses the decision in R. v. Carden, 5 Q. B. D. 1; 44 J. P. 119; 49 L. J. M. C. 1; 41 L. T. 504; 28 W. R. 133 ; 14 Cox C. C. 359; and R. v. Flowers, 44 J. P. 377. But in a prosecution against the proprietor of a newspaper for a seditious libel, evidence of the truth of the matters therein alleged and that such publication was for the public benefit, was held to have been rightly rejected by the magistrates (Ex parte O'Brien, 15 Cox C. C. 180; 12 L. R. Ir. 29).

Section 5 of the above Act provides for a summary conviction for libel published in a newspaper if the court of summary jurisdiction deems the libel to be trivial in character, giving the accused, however, the option of being tried by a jury under s. 27 of the S. J. Act, 1879, ante, p. 163.

Debtors Act, 1869.-By 32 & 33 Vict. c. 62, s. 18, it is provided that the justices before whom a person is charged with a misdemeanor under the second part of that Act shall take into consideration any evidence adduced before them tending to show that the act charged was not committed with a guilty intent.

19. Place of examination not to be deemed an open court.] That the room or building in which such justice or justices shall take such examinations and statement as aforesaid shall not be deemed an open court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion, to order that no person shall have access to or be or remain in such room or building without the consent or permission of such justice or justices, if it appear to him or them that the ends of justice will be best answered by so doing.

Open Court. The law officers of the Crown on December 1st, 1884, advised that justices acting in relation to indictable offences are a court of summary jurisdiction within the repealed s. 7 of the S. J. Act, 1884, ante (in place of which section now see s. 13 (11) of the Interpretation Act, 1889, post), and therefore must sit in