REGINA v. GARDNER, C.C.R. Judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners." At the time that Act was passed the prisoner was not entitled to give evidence, and there could therefore be no right of comment on the part of the counsel for the prosecution. But for section 3 he would have had a right of reply, but that right is expressly taken away by the section where the only witness called for the defence is the prisoner. The evidence of a prisoner on his own behalf is not "evidence against" the prisoner within the meaning of section 2 of the Act of 1865 so as to entitle the prosecuting counsel to comment upon it in summing up. Biron, for the prosecution, was not called upon to argue. LORD RUSSELL OF KILLOWEN, C.J.—In my judgment the quarter sessions took the right view in reference to each of these points. The prisoners were charged with breaking into a warehouse and stealing goods therefrom. Both prisoners were defended by counsel, and at the close of the evidence for the prosecution the prisoners' counsel called the prisoners as witnesses, and called no other witnesses. The first question which arises is, when is that evidence to be given-before or after the summing-up of counsel for the prosecution? The question depends on the Criminal Evidence Act, 1898. By section 1 the prisoner is competent but not compellable to give evidence for the defence. Then section 2 provides that "Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution." And section 3 enacts that" In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply." The question arises, what in such circumstances is the proper course for the Court to pursue? The answer is clear. The words of the section are that the prisoner is to be called "immediately after the close of the evidence for the prosecution." It is therefore clear that the Justices were right in holding that the evidence of the prisoners was to be given directly after the close of the evidence for the prosecution. Then, does that operate as a postponement merely or as an extinguishment of the right of the prosecuting counsel to sum up? If the latter had been intended, the statute would, I think, have said so in express terms. It effects merely a postponement of the summing-up to a later stage. The quarter sessions were therefore right in holding that the prisoners must be called at the close of the evidence for the prosecution, and that the summingup was postponed. The second point is whether the counsel for the prosecution, who is thus called upon to sum up, is entitled to comment not only on the evidence called for the prosecution, but also on the evidence given by the prisoner. The counsel for the prisoner contends that the prosecuting counsel cannot comment on any evidence except that which has been called for the prosecution. He bases that argument upon section 2 of the Act of 1865. Of course, when that Act was passed the prisoner could not give evidence, but by the recent Act the prisoner may give evidence before the time for summing up the evidence for the prosecution has arrived. Is it to be said that the prosecuting counsel is to shut his eyes to the fact that the prisoner has been called and given evidence inconsistent with his own case? For example, where a prisoner is called and sets up an alibi, is it good sense to say that counsel is to shut his eyes to that evidence, and not to point out to the jury, for example, that the prisoner has not called any one to corroborate his statement when he might have done so? Before the recent Act it was for many years the invariable course to put in the statement made by the prisoner REGINA v. GARDNER, C.C.R. before the Justices as part of the case for the prosecution, and to allow comment upon it. That supports the view we take that counsel for the prosecution may now, in summing up, point out any inconsistencies or weaknesses-in other words, may comment on the prisoner's evidence. The quarter sessions were therefore right upon both the questions raised. HAWKINS, J.-I am of the same opinion. The words of section 2 of the Act of 1865 are that "the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners." Supposing that when that Act was passed a prisoner had been able to give evidence: the object of his doing so would have been to lessen the value of the evidence for the prosecution, and the object of the Summing-up must have been to take the prisoner's evidence, and shew that the evidence for the prosecution ought not to be disturbed by reason of it. WILLS, J.-I am of the same opinion. The second question is really answered by the answer to the first, because, unless the right to sum up is taken away altogether, it follows that the summing-up must be upon all the materials before the Court. The provision as to the summingup of the evidence in section 2 of the Act of 1865 must be taken to be impliedly repealed. I cannot suppose that anything so mischievous could have been intended as to confine the prosecuting counsel's summing-up to comments upon the evidence adduced by the prosecution. WRIGHT, J., and BRUCE, J., concurred. Conviction affirmed. Solicitors-George Mallam, Oxford, for prisoner [CROWN CASE RESERVED.] 1898. Nov. 12. j REGINA V. RHODES.* [68 L. J. Q.B. 83.] Criminal Law-Evidence-False Pretences-Evidence of Offences Similar but Subsequent to the Charge-Connected Scheme of Fraud-Admissibility-Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36)-Grand Jury-Prisoner's Evidence Judge's Right to Comment on Prisoner's Failure to Give Evidence at Trial. Where on the trial of an indictment for obtaining goods by false pretences there is evidence that, at dates subsequent to the from other persons by similar false preoffence charged, the prisoner obtained goods tences, such evidence is admissible when it points directly to one and the same system of fraud and a connected scheme of dishonesty. Under section 1 of the Criminal Evidence Act, 1898, a prisoner is not entitled to give evidence for the defence before the grand jury. A Judge at the trial has the right to comment on a prisoner's failure to give evidence on his own behalf under the Criminal Evidence Act, 1898; but the right of comment rests solely on the Judge's discretion, and its exercise depends upon the circumstances of each particular case, and is one as to which no general rule can be laid down. The Case stated by the Chairman of a Court of quarter sessions before whom the prisoner had been convicted of obtaining a certain quantity of eggs by false pretences from one William Bays. indictment charged that the prisoner at the date of the offence did falsely pretend that he was carrying on business as a farmer or dairyman, and did then require the eggs for use in his business, and was then in a position to pay for the eggs, by means of which false pretences he did then unlawfully obtain from the prosecutor 660 eggs of the value of 21. 1s., with intent to defraud. Before the bill of indictment was sent to the grand jury, the prisoner, who was in custody, applied in person under * Coram, Lord Russell of Killowen, C.J., Wills, J., Wright, J., Bruce, J., and Darling, J. REGINA v. RHODES, C.C.R. section 1 of the Criminal Evidence Act, 1898, to give evidence for the defence before the grand jury. The Chairman declined to permit him to do so. It was proved by the prosecution that the defendant had advertised in the newspapers circulating in the Isle of Ely and district for new-laid eggs; that he gave no name, but only an address, "Norfolk Farm Dairy, High Street, Mitcham, Surrey"; and the prosecutor, believing he was dealing with a responsible firm, sent two consignments of eggs, for which he never was paid. Further evidence was given to prove that the defendant had no right to the title "Norfolk Farm Dairy," as the name had been left painted over the shop front by a former occupier, who sold his business and goodwill in March, 1897, the defendant having gone to reside there nearly a year afterwards. In the course of the trial two witnesses, William Ellston and James Chambers, were called for the prosecution to prove that the prisoner had, in the one instance a week and in the other two months subsequently to the transaction with the prosecutor, obtained eggs of them also, and that they had sent him twelve dozen and fifteen dozen eggs respectively, under precisely similar conditions to those sent by the prosecutor. Both of these witnesses resided in the Isle of Ely, and lived about equidistant apart from Chatteris, the prosecutor's home. They had both been called before the magistrates on the hearing before the committal to corroborate the prosecutor in respect to having similar dealings with the prisoner, but the prisoner was not committed for trial in respect thereof. Counsel for the defence objected to the (1) By section 1 of the Criminal Evidence Act, 1898, Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows (b) The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution." reception of their evidence on the ground that it could not be received as proof of fraud, and he referred to Reg. v. Holt [1860].2 The Chairman overruled the objection and admitted the evidence on the authority of Reg. v. Forster [1855] 3 and Reg. v. Francis [1874].4 There was evidence to prove that the prisoner did very little trade, and in addition to other witnesses a Mrs. Freeborn was called. She had bought the business from the prisoner in July, 1898, shortly after he had obtained the eggs, and was examined to prove that the prisoner did no trade worth speaking of, judging from her experience of the business she did after taking possession of the shop. On cross-examination she stated that she once had a customer who wanted six dozen eggs, which she had not in stock, but she did not know his name. Counsel for the prosecution suggested that there was no bona fide customer, but that the person, whoever he was, had been sent at the prisoner's instance to create an impression that there was a large demand for eggs. Upon this the prisoner made a communication to his solicitor, and thereupon his counsel said it was 66 'a Mr. King of Mitcham" who wanted the eggs, and upon the Chairman observing that a bare statement of that kind was insufficient, he undertook to clear the matter up when he came to the defence, and, if necessary, to call evidence. On the close of the case for the prosecution, counsel for the prisoner intimated that he called no witnesses for the defence. The Chairman summed up to the jury, and drew attention to the fact that it would have been more satisfactory if evidence had been called to clear up the mystery of the person who was said to have wanted six dozen eggs; and pointed out that under the Criminal Evidence Act, 1898,' it was open to the prisoner to give evidence on his own behalf in support of the statement made by his counsel that it was "a Mr. King of Mitcham." Counsel for the defence objected, but the Chairman ruled that the prohibition in section 1, sub-section b of the Act as to commenting upon the (2) 30 L. J. M.C. 11. (3) 24 L. J. M.C. 134. (4) 43 L. J. M.C. 97; L. R. 2 C,C.R, 128. REGINA v. RHODES, C.C.R. prisoner's failure to give evidence did not apply to the Court. The Chairman considered that this was not an ordinary case, because the suggestion of the prisoner's counsel as to the purchaser being a 66 Mr. King of Mitcham" was unquestionably inspired by the prisoner himself. He also relied on the statements of counsel that evidence would be called to prove the alleged fact, which was otherwise calculated to mislead both the Court and the jury, and thought it was obviously his duty to draw attention to the omission, believing it was a case where the prisoner ought to have gone into the box and given his account of the matter. The jury found the prisoner guilty. The questions were 1. Was the prisoner entitled to give evidence for the defence before the grand jury? 2. Was the evidence of Ellston and Chambers as to subsequent transactions admissible as proof of fraud? 3. Had the Chairman the right to comment upon the prisoner's failure to give evidence? H. St. J. D. Raikes, for the prosecution. -The first question is whether the prisoner should be permitted to give evidence before the grand jury. [LORD RUSSELL OF KILLOWEN, C.J.— The Court thinks that point unarguable; the grand jury have nothing to do with the prisoner's evidence, but to find a prima facie case.] As to the second point, the witnesses Ellston and Chambers had been taken in by the same advertisement that deceived the prosecutor, and although their evidence related to transactions subsequent to that charged in the indictment, yet the continuous appearance of the advertisement in the newspapers of the district brings the whole of the transactions together, and points to one and the same system of fraud. Their evidence is therefore admissible to prove this. As regards evidence of guilty knowledge, Reg. v. Forster covers that point; and as regards the admissibility of evidence of subsequent transactions, Reg. v. Francis distinguishes Reg. v. Holt.2 4 As to the third point, the Chairman was right. [LORD RUSSELL OF KILLOWEN, C.J.That is a matter which must be dealt with by the Judge in each particular case.] No counsel appeared for the prisoner. LORD RUSSELL OF KILLOWEN, C.J.— There are three points only in the case which affect the prisoner. Upon the first point the Chairman was clearly right. The right of the prisoner to give evidence is by section 1 of the Criminal Evidence Act, 1898,' plainly limited to giving evidence for the defence, and only for the defence. The grand jury have nothing to do with the defence. Their function is sitting in private to hear the evidence, or at any rate part of it, for the prosecution, and to find out whether a prima facie case has been made out. The prisoner is a competent witness for the defence at every stage of the proceedings, but not before the grand jury, because they have nothing to do with the defence, and would have no power to give effect to the prisoner's evidence. The second point is whether the evidence of Ellston and Chambers was or was not admissible. The Case is not stated with precision as to facts and dates. The charge is one of false pretences, that the prisoner was carrying on the business of a farmer or dairyman, and requiring eggs for his business, and that this was all sham. The fact was that the business was non-existent. The prosecution proved the false pretence as regards William Bays, but gave the further evidence of Ellston and Chambers. The scheme of fraud was to issue an advertisement for eggs in a series of newspapers circulating in the district inhabited by Bays and the two other witnesses who were defrauded. The advertisement was a sham, and its repetition formed part of the same scheme of fraud, by means of which the prosecutor and both these witnesses were taken in. Had the witnesses been taken in by the advertisement and defrauded of their eggs before the date at which the prosecutor was defrauded of his and not at a remote period, there can be no question but that their evidence was admissible. But the fact that these witnesses were not taken in by the advertisement till a date REGINA v. RHODES, C.C.R. after that at which the prosecutor was defrauded-in the one case a week, and in the other about two months-raises the difficulty. From the facts found in the Case it is plain that the prisoner was carrying on a single and entire scheme of fraud by means of one and the same sham business and sham advertisements. Had the transactions been disconnected and isolated, I should be by no means prepared to admit evidence of the later transactions upon a charge arising out of a former transaction. But here, where, so far from being isolated, a plain connection between each of these transactions is afforded by the advertisement, which shews that the whole scheme was one entire fraud, and that the business was an absolute sham, and that the method was the same in every case, and with the one view of defrauding the public, I am of opinion that the evidence of Ellston and Chambers with regard to the prisoner's subsequent transactions with them was admissible. Reg. v. Holt2 was possibly rightly decided, but throws no light upon the present case. However, the reasoning upon which the late Lord Coleridge, C.J., founded his judgment in Reg. v. Francis1 seems to be applicable, and to elucidate the principle that evidence may be admissible tending to shew that the prisoner was pursuing a course of similar acts. The third point relates to the Chairman's comment upon the prisoner's failure to give evidence on his own behalf in support of his counsel's suggestion in his cross-examination of the woman who had succeeded to the premises occupied by the prisoner as his place of business, and who had been called to prove that there was no real business. The cross-examination was directed to shew the contrary, and the suggestion of the prisoner was that a "Mr. King of Mitcham was a real customer. This was never cleared up. All we have to decide is, Had the Chairman a right to make such an observation, as properly and fairly arising under the circumstances? I think he had a right, but what the comment should be must rest on the discretion of the Judge in each case, and with regard to which it is impossible to lay down any general rule. The wise exercise of that discretion depends upon I have the circumstances of each case. no reason to think that the Chairman was wrong in the present case in making the observation he did. He certainly did not exceed his right in making it. WILLS, J.-I am of the same opinion, and merely wish to add a few observations upon the second point, as to the admissibility of the evidence. In all cases of this kind, whoever has to decide upon the admissibility of evidence such as that in question must consider carefully the charge itself and the circumstances under which it is made. The charge here is that the prisoner falsely pretended he was carrying on a real business when he was carrying on a bogus business. How is this to be shewn when a man has, as the prisoner had here, some of the apparatus of a regular business-that is to say, a real shop with his name over it-unless by shewing that other like transactions have been carried on by the accused, and that the transaction, the subject of the charge, was part of a system forming a single and entire scheme of fraud. If these other transactions be prior in date to the one in question, there can be no doubt as to their admissibility in evidence. What difference does it make whether they took place before or after, so long as they would fairly lead to the inference that the transaction on which the charge is based is part of a connected system of operations? The difficulty here is the interval of time which elapsed; and if there had been no connecting link between the first and last transactions I agree that the evidence of the last transaction would have been inadmissible. It might happen that no stronger link connecting two transactions would be required than the fact that they took place almost simultaneously; but here the interval between the first and last was two months, and without some link of connection the distance of time might be too great. But here again we find that the same advertisement had been continued, and that its operation in the last case was precisely similar to its operation in the first. This being so, in my judgment the evidence relating to the later trans |