KING'S BENCH DIVISION. Friday, October 28, 1910. (Before DARLING, PICKFORD, and Lord COLERIDGE, JJ.) Justices REX V. BROS; Ex parte HARDY. (a) Taking depositions outside court-house-Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 17-Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 6. A justice, where a person is charged before him with an indictable offence, is bound under sect. 17 of the Indictable Offences Act, 1848, to take the depositions of a witness who is dangerously ill at the place where such witness is, if it is practicable for him to do so. Whether or not it is practicable is for the justice to decide exercising his discretion in a judicial manner. If it is not practicable for the justice to take the deposition, another justice may take such deposition under sect. 6 of the Criminal Law Amendment Act, 1867. CAUS NAUSE shown against a rule nisi directed to a metropolitan police magistrate, directing him to show cause why he should not take the evidence of a witness, Ralph Price Hardy, at the witness's residence, pursuant to sect. 17 of the Indictable Offences Act, 1848, or pursuant to sect. 6 of the Criminal Law Amendment Act, 1867 (Russell Gurney's Act), in order that such evidence might be used upon the hearing of an information preferred by the applicant against certain persons charged with offences under the Assurance Companies Act, 1909. The magistrate's affidavit stated: An application was made by counsel, under Russell Gurney's Act (30 & 31 Vict. c. 35), s. 6, for me to take the deposition of Ralph Price Hardy, said to be dangerously ill. As the depositions were being taken before the Court under the Indictable Offences Act (11 & 12 Vict. c. 42), I was of opinion that that was the proper procedure in this case. I refused, therefore to take a deposition under Russell Gurney's Act on the authority of Reg. v. Katz (64 J. P. 807). No application has yet been made for me to take the deposition under the Indictable Offences Act, s. 17. As the case is still pending I have no doubt application will be made, and I should be glad of the direction of the Court of King's Bench in the matter. (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. It is practicable and permissible to take the deposition under the Indictable Offences Act, but the question for the Court is whether it is expedient. It is unusual for the Court to take a deposition outside the court-house, except in the case of murder, or, perhaps, manslaughter, and I have never known it done in a case of misdemeanour. Information was laid and summonses issued under sect. 24 of the Assurance Companies Act, 1909, which makes it a misdemeanour to falsify a balance-sheet. The matter would have been dealt with summarily, but doubt having arisen as to the jurisdiction of the Court, it was decided to take depositions under the Indictable Offences Act, so that the defendants might be tried on indictment at the Central Criminal Court. If the case had been dealt with under the Summary Jurisdiction Acts it would have been heard, tried, and determined in open court (42 & 43 Vict. c. 49, s. 20). Now applications to a magistrate to go out and take depositions are made only by a superior officer of police in serious charges. It would be a new departure to allow private prosecutors to take a magistrate away from his court whenever an important witness in an indictable misdemeanour was certified to be dangerously ill. By sect. 17 of the Indictable Offences Act, 1848: In all cases where any person shall appear or be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon the bigh seas, or on land beyond the sea, or whether such person appear voluntarily upon summons or have 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 to prison for trial, or before he or they shall admit him to bail, shall in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (M.) on oath or affirmation of those who shall know the facts and circum. stances of the case, and shall put the same into writing, and such depositions 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 the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness is examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and authority to do, and if upon the trial of the person so accused as first aforesaid it shall be proved, by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. By sect. 6 of the Criminal Law Amendment Act, 1867: Whenever it shall be made to appear to the satisfaction of any justice of the peace that any person dangerously ill and in the opinion of some registered medical prac titioner not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, and it shall not be practicable for any justice or justices of the peace to take an examination or deposition in accordance with the provisions of the said Act of the person so being ill, it shall be lawful for the said justice to take in writing the statement on oath or affirmation of such person to being ill, and such justice sball thereupon subscribe the same, and shall add thereto, by way of caption, a statement of his reason for taking the same, and of the day and place when and where the same was taken, and of the names of the persons (if any) present at the taking thereof, and, if the same shall relate to any indictable offence for which any accused person is already committed or bailed to appear for trial, shall transmit the same with the said addition to the proper officer of the Court for trial at which such accused person shall have been so committed or bailed; and in all other cases he shall transmit the same to the clerk of the peace of the county, division, city, or borough in which he shall have taken the same, who is hereby required to preserve the same, and file it of record; and if afterwards, upon the trial of any offender or offence to which the same may relate, the person who made the same statement shall VOL. XXII. A A REX v. BROS ; Ex parte HARDY. 1910. JusticesTaking depositions outside court-houseIndictable Offences Act, 1848 (11 & 12 Vict. c. 42), 8.17Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 6. REX v. BROS; Ex parte be proved to be dead, or if it shall be proved that there is no reasonable probability that such person will ever be able to travel or to give evidence, it shall be lawful to read such statement in evidence, either for or against the accused, without further proof thereof, if the same purports to be signed by the justice by or before whom it purports to be taken, and provided it be proved to the satisfaction of the Court that reasonable notice of the intention to take such statement has been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person, or bis counsel or attorney, had, or might have had, if he had chosen to be present, full opportunity of cross-examining the deceased Taking depo- person who made the same. 1910. Justices sitions outside court-houseIndictable Offences Act, 1848 (11 & 12 Vict. c. 42), Act, 1867 W. H. Leycester for the defendants. Leslie Scott, K.C. and A. P. Poley in support of the rule. DARLING, J.-In this case a rule nisi had been obtained calling 8. 17- upon a metropolitan magistrate to show cause why he should not Criminal Law go and take the deposition of a person who is dangerously ill Amendment and unable to attend the police-court. The obligation is (30 & 31 Vict. imposed on the magistrate to take the depositions of all persons c. 35), s. 6. in these circumstances by sect. 17 of the Indictable Offences Act, 1848. [His Lordship having read the section continued:] Therefore there was a primary duty to take the depositions of all persons who can throw any light on the case where there is a charge of an indictable offence, and that would oblige the justice to go to the bedside of the witness in all cases of a charge of an indictable offence. Then came the Criminal Law Amendment Act, 1867, which by sect. 6 provides that where it is not practicable to take the deposition of a sick person in accordance with sect. 17 of the Indictable Offences Act, 1848, then if it is made to appear to the satisfaction of any justice, not merely the justice who is charged with the investigation of the case, that any person is dangerously ill, it shall be lawful for him to take that person's deposition. Here the magistrate asks this Court for our direction, and we can say that the duty of the magistrate is to take the depositions of all persons who can give useful evidence on oath. That may not always be practicable, and it must be obvious that a magistrate cannot give up the investigation of the cases and the consideration of all the work on which he is engaged and go away to a distance. That would be impracticable. In such a case the parties should find some other magistrate to take the deposition, possibly in the place where the sick person is to be found, and the deposition would be taken under the Act of 1867. The magistrate states that it is unusual to take a deposition outside the court-house except in the case of murder or perhaps manslaughter, and that he has never known it done in a case of misdemeanour. All I can say is that there is no such limitation in sect. 17 of the Indictable Offences Act, 1848, which applies where a person is charged with any indictable offence. It is obvious that a case of manslaughter may not be nearly so serious as many other indictable offences. There is no authority for saying that the magistrate is not bound to take a deposition outside his court except in cases of murder or manslaughter. The magistrate goes on to say that REX BROS; 1910. court-house applications to a magistrate to go out and take depositions are made only by a superior officer of police in serious charges. There is nothing to show that no one has a right to make such applications except a superior officer of police. He also says that it would be a new departure to allow private prosecutors to take a magistrate away from his court whenever an important witness in an indictable misdemeanour was certified to be dangerously Justicesill. It may be that it would be a new departure, but the Taking depomagistrate is not bound to go unless he thinks it practicable for sitions outside him to do so. If it is not practicable for him to go, the Indictable deposition can be taken under the Act of 1867. I do not think Offences Act, that the magistrate is at liberty to make a rule that he will not 1848 (11 & 12 go unless he is asked by a superior officer of police and unless the case is one of murder or manslaughter. He must go in every case where there is a charge of an indictable offence if it is practicable for him to do so. Whether it is or whether it is not practicable is for the magistrate to decide, exercising his discretion in a judicial manner. I think this rule should not be made absolute, as under the circumstances there is no occasion to do so. As the magistrate has said that it is practicable to take the deposition under the Indictable Offences Act, 1848, we think he ought to do it. PICKFORD, J.-I am of the same opinion. Sect. 17 of the Act of 1848 makes it the duty of the magistrate to take the depositions in the case of all indictable offences. That is a duty which he can only perform if it is practicable, and if it is not practicable, an application can be made to some other justice under the Act of 1867. If it is practicable, it is not for the magistrate to consider whether it is expedient or not, and the only matter he can consider is whether it is practicable. The result of any other decision would be disastrous, because unless it is not practicable, it would be impossible for any other justice to take the deposition under the Act of 1867, and therefore the result would be that the deposition could not be taken at all. I agree that in considering whether it is practicable the magistrate is entitled to take into consideration whether the taking of the deposition will be such an interference with public business as to make it impracticable. Lord COLERIDGE, J.-I agree. The magistrate, having held that it is practicable for him to take the deposition under the Indictable Offences Act, 1848, and having intimated that on an application being made under that Act he would not take it on the ground that he never did it except in cases of murder or manslaughter and only when asked by a superior officer of police, has laid down a rule which the law does not justify. If it is practicable he ought to go and take the deposition, and he is the person to decide whether it is practicable. Rule discharged. Solicitors: Hargraue, Son, and Barrett; Blanckensee and Co. Vict. c. 42), s. 17 Criminal Law Act, 1867 COURT OF CRIMINAL APPEAL. Thursday, December 8, 1910. (Before Lord ALVERSTONE, C.J., PICKFORD and AVORY, JJ.) ROSE (app.) v. KEMPTHORNE (resp.) (a) Assault-Serving County Court process-Personal servicePlacing document in coat. The appellant met the respondent in the street and tendered him an order for discovery which had been made against the respondent in a County Court action, the appellant acting on behalf of the solicitor to the other party to the action. The respondent refused to accept the document, and the appellant thrust it into the inner fold of the respondent's coat. Held, that as the appellant was entitled to serve the respondent personally, and as there was no evidence that the appellant touched the respondent more than was necessary to bring the document home to the respondent, the appellant was not guilty of any assault on the respondent. CASE stated on an information preferred by the respondent, under 24 & 25 Vict. c. 100, s. 42, against the appellant, for that the appellant on the 18th day of May, 1910, did unlawfully assault and beat him, the respondent. At the hearing the following facts were proved : The respondent was, on the 18th day of May, 1910, the defendant in an action in the County Court of Harwich, in which action an order for discovery of documents had been made against him. The respondent was proceeding along Church-street, Harwich, to the Great Eastern Railway Station to catch the 12.30 p.m. train when he was overtaken by the appellant, who, acting on behalf of the solicitor to the plaintiff in the County Court action, said to him, "Wait a minute, doctor; I have something for you,' at the same time tendering him the order for the discovery, which the respondent declined to accept, saying, "You know perfectly well who is representing me in the County Court. I refuse to accept and peruse documents in the public street." The appellant thereupon thrust the document into the inner (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law |