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A.

B. N. P.

C. C. A.

C. C. R.

c. q. H. L. imp. L. A.

P.

P. d.

p. s. Phips. rpd.

8.

St. Tr.

T.

W.

w. h. 1.

.Act.

SOME ABBREVIATIONS.

..Buller's Nisi Prius.
.Court of Criminal Appeal.
..Crown Cases Reserved.
..conviction quashed.

.House of Lords.

.imprisonment.

Larceny Act.

.Pollock on Possession in the Common Law (1888). ..preventive detention.

.penal servitude.

.Phipson's Law of Evidence (1911).

.repealed

..section.

....Howell's State Trials.

.Taylor on Evidence (1906).

Wright on Possession in the Common Law (1888).

.with hard labour.

PART I.

GENERAL HEADS.

A. EVIDENCE.

General rules] of evidence are, at common law, the same in criminal and civil proceedings. (Accordingly under this head there are many rules seldom applicable except in civil cases.) There is no difference as to the rules of evidence,' says Abbott J., 'between criminal and civil cases: what may be received in the one may be received in the other; and what is rejected in the one ought to be rejected in the other.' Watson, 2 Stark. N. P. C. 116 at 155; 32 St. Tr. at 492, 1817; Murphy, 8 C. & P. 306, 1837, amplifying Buller J., de la Motte, 21 St. Tr. 810, 1781.

Application of rules] So Hotham B. adding at the same time it has been stated that one is more disposed to resist, and more cautious in receiving evidence in a case where the party has much at stake, as in favour of life,' Cator, at 144. See p. 80. So Reading L.C.J.: 'But they [the principles of the law of evidence] are not enforced with the same rigidity against a person accused of a criminal offence as against a party to a civil action. There are exceptions to the law regulating the admissibility of evidence which apply only to criminal trials and which have acquired their force by the constant and invariable practice of judges when presiding at criminal trials. They are rules of prudence and discretion and have become so integral a part of the administration of the criminal law as almost to have acquired the full force of law. A familiar instance of such a practice is to be found in the direction of judges to juries strongly warning them not to act upon the evidence of an accomplice witness unless it is corroborated." Christie, 1914, A. C. 564; 10 Cr. A. R. 164, H. L., where (59, 159) L. Moulton, accepting the general rule, went on: But there is a great difference in the practice. The law is so much on its guard against the accused being prejudiced by evidence which, although admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable. Under the influence of this practice, which is based on an anxiety to secure for everyone a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure.' Cf. 'If I were asked whether there be any difference left between a

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criminal statute and any other statute not creating an offence I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law': per Pollock C.B., A.-G. v. Sillem, 33 L. J. Ex: 110; 1864.

Another instance of a difference is in the admission of judges' notes as evidence in civil cases only. See pp. 5, 69, 198, and Presumptions and Phips. p. 419:

Insanity] This proceeding is either a criminal prosecution or a civil suit If a criminal prosecution it can neither be instituted nor carried on while the accused is a lunatic. If it be a civil suit, lunacy 13. no bar,' per Kelly C.B. (and Denman J. and Pollock J.) advising the H. L. in Mordaunt v. Moncrieff, L. R. 2 Sc. App. 381, 1874, adopted by L. Hatherley, ib. 394.

Witness] And it seems that in a criminal case the judge may call a witness without the consent of the parties, but not in a civil case: P. 160.

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Technical rules] In a criminal case no such application' can be made as may be made in a commercial cause to the judge under the provisions of the Judicature A. 1894, and the rules thereunder, or by consent to dispense with the technical rules of evidence for the avoidance of expense and delay which might arise from commissions to take evidence and otherwise (reg. 6 of Judges' Notice, 1895: Annual Practice 1918, p. 2388). The Admiralty Judge seems to have even greater powers by consent': ib. 2390. Hence in Cargill, Channell J. observed: 'I think that the ordinary rules of evidence do sometimes do an injustice. The rules are made to meet the general run of cases, and it cannot be helped if in particular cases they work an injustice: it is better to apply the rules strictly than to allow it to be supposed that a judge has a discretion to relax them if he thinks they will work an injustice' (J. P. and Cr. A. R.). Hence a judge cannot exclude a confession, though he may wish that it was not put in: T. Fletcher, 9 Cr. A. R. 54, 1913. See per L. Halsbury, Christie, 10 Cr. A. R. 149. Cf. the remarks of the C. C. A. in Shellaker.

Complaint by female of sexual offences] Hearsay (which see) is admitted only in criminal cases.

Verdict] A majority verdict cannot be accepted in criminal cases. Parties] In a civil case they may call each other, but in a criminal case the Crown has no right to call a defendant.

Counsel] For a difference in the position of counsel see Berens, 1865.

Admissions] There are no admissions in criminal cases dispensing with proof as distinguished from admissions or confessions which are evidential' (except by a plea of guilty,' p. 169). Phips. 11, 5 (and except defendant's statements sworn and unsworn); see Confessions and Thornhill, 1838. Eyre J. rebuked counsel for asking Horne Tooke (at 73) to look at a paper and acknowledge it, and strongly advised him not to admit it, as he might not understand the legal effect of the admission: cf. ib. 114. Counsel for defendant suggested (before evidence) that as there would be no question made

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as to the facts, it might be convenient at once to discuss the law of the case. Erle J. We cannot in a criminal case take anything as admitted, and therefore the evidence must be gone into': Bateman, 1 Cox C. C. 186, 1845, forgery.

Inadmissible evidence] The court must object if party or counsel do not: per Abbott J., Watson, 491, 1817. Until the Judicature Acts it vitiated verdicts, both criminal and civil: per L. Coleridge C.J.: Gibson, 1887. Now [in 1905], according to T. 1881 c, if no objection is taken in civil cases there is no remedy, while in criminal a conviction is void even if there is enough evidence aliunde,' citing Gibson. But for the law in the C. C. A. see this title below.

Where evidence was improperly received but the jury voluntarily said that they had not been influenced by it, and there was ample material for a conviction without it, Parke B. stated that the rule in civil and criminal cases was different in this respect: Forster, 6 Cox C. C. 521, 1855, C. C. R.: conviction affirmed.

Best evidence] It is the 'first and most signal rule' (Gilb. Ev. p. 3) of evidence that the best evidence of which the case is capable shall be given; for if the best evidence be not produced, it affords a presumption that it would make against the party neglecting to produce it: ib. Best, Ev. Bk. 1, s. 87 and foll.; but see p. 5. What is 'best' in each case is a matter of law; the testimony of an observer (i.e., through one of the five senses) is always preferred. But the best often may be secondary.' The court must be reasonably satisfied that due diligence has been used' [i.e., to produce primary evidence']. But it is not necessary to negative every possibility-it is enough to negative every reasonable probability-of anything being kept back,' per Alderson B., M'Gahey v. Alston, 2 M. & W. 214, 1836: secondary evidence of contents of a cheque let in after proof of sufficient search for it.

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Writings] See Documentary evidence. A most important application of this principle is that which rejects secondary and requires primary evidence of the contents of relevant written documents of every description. The contents of every written paper are, according to the ordinary and well established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence.' The rule was so stated by the judges on the occasion of the trial of Queen Caroline, 2 Brod. & B. 286, 1820. The only exceptions to it may be divided into the following classes (each of which is dealt with below):(1) Where the written document is lost or destroyed; (2) Where it is in the possession of an adverse party who refuses or neglects to produce it; (3) Where it is in the possession of a party who is privileged to withhold it, and who insists on his privilege; (4) Where the production of the document would be, on physical grounds, impossible, or highly inconvenient; (5) Where the document is of a public nature, and some other mode of proof has been specially substituted for reasons of convenience. It is apparent, therefore, that, in order to let in the secondary evidence in these cases, certain preliminary conditions must be fulfilled.

In Banks, 1916, appellant was cross-examined about the contents of an incriminating letter of his not to prosecutrix' and the reply thereto, without either being produced: the C. C. A. commented on this pro

ceeding (but applied the proviso to s. 4 (1)' of the C. A. A.): 'it was not regular to insist that the appellant should give an answer

i.e. according to the rule, Phips. 473: he may be asked on cross-examination as to any documents, yet he cannot be compelled to make such admissions in the box.' See Cross-examination.

It is not necessary, in every case where the fact that is to be proved has been committed to writing, that the writing should be produced, but (unless the contents of the writing are themselves a fact or facts in issue) only in those cases where the documents contain statements of facts, which, by law, are directed or required to be put in writing, or where they have been drawn up by the consent of the parties for the express purpose of being evidence of the facts contained in them. Indeed, in many cases the writing is not evidence, as in Layer, 16St. Tr. 214, 1722; 12 Vin. Ab. 96.

Instances] In an indictment for setting fire to a house with intent to defraud an insurance company, in order to prove that the house was insured, the policy must be produced, as being the best evidenceEllicombe, 5 O. & P. 522; 1 Moo. & R. 260, 1833; Kitson, 1 D. & P. C. C. 187; 22 L. J. M. C. 118, 1853-where, however, Phips. 518, gives the reason that the matter is collateral (and if not aliter)— and the insurance office cannot give other evidence in the absence of a notice to produce: Doran, 1 Esp. 127, 1791; but per Curiam in Kitson it is not absolutely necessary in all cases to produce the policy, but the intent to defraud alleged must be proved by proper evidence.'

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Matter of record] On the same principle, the records and proceedings of courts of justice, existing in writing, are the best evidence of the facts there recorded. Thus where it was necessary to prove the day on which a cause came on to be tried, L. Ellenborough said that he could not receive parol evidence of the day on which the court sat at nisi prius, as that was capable of other proof by matter of record, Thomas V. Ansley, 6 Esp. 80, 1806. So, on an indictment for disturbing a protestant congregation, L. Kenyon ruled that the taking of the oaths under the Toleration A. (1688), being matter of record, could not be proved by parol evidence. Hube, Peake, N. P. 180; 5 T. R. 542, 1792-4. In Rowland, 1 F. & F. 72, 1858, Bramwell B. held in perjury, that in order to prove the proceedings of the county court, it was necessary to produce either the clerk's book, or a certified copy there from bearing the seal of the court; the County Court A. of 1846 directing that such minutes should be admissible. And even where the transactions of courts which are not, technically speaking, of record are tobe proved if such courts preserve written memorials of their proceedings, those memorials are the only authentic modes of proof which the law recognises.' 3 Stark. Ev. 1043, 1st ed., 1824; 717, 4th ed., 1853. See p. 192. On indictment for perjury, where there was in existence the information in writing, on the hearing of which defendant was sworn, but it was not produced, an acquittal was directed. Dillon, 14 Cox C. C. 4, 1877. On an indictment under a rpd. statute (1697), it was necessary to show that the prosecution was commenced within three months after the offence committed. It was proved, by parol, that defendants were apprehended within three months, but the warrant was not produced nor proved, nor were the commitment or the depositions given in evidence to show on what transactions, or for what offence, or at what time, they were committed. On conviction, a question was reserved for the judges, who held that there was not

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