judge did not distinguish between larceny of a cheque and that of its proceeds, c. q., as showing that the defence had not been appreciated: Hampton, 84 L. J. K. B. 1137; 24 Cox C. O. 722; 113 L. T. 378; 11 Or. A. R. 117, 1915. Actual misstatement of essential evidence may be a ground for quashing: Feldman, 5 Cr. A. R. 214, 1910; the chairman may have misled the jury: Crane, 6 Cr. A. R. 185; 75 J. P. 415, 1911; where, in fraud, the judge did not distinguish between 'under value' and 'under cost price': Brooks, 6 Cr. A. R. 264, 1911; where there being a good deal of suspicion but not much evidence,' there was the more need of a careful direction: Savidge, 7 Or. A. R. 34; 76 J. P. 32, 1911, where the judge said that defendant's witnesses could not be tested as they had not before publicly given their evidence -whereas they had done so before a coroner. In Wann, 7 Or. A. R. 135; 23 Cox C. C. 183; 76 J. P. 269; 28 T. L. R. 240; 107 L. T. 462, 1912, where the issue depended on a date which was not sufficiently discussed: c. q.; so in Corrigan, 1912, where the judge stated that defendant said he had bought parts of the stolen property from two different men, whereas he only mentioned one. See also Hagan, 9 Cr. A. R. 25, 1913: c. q. Owing to a mistake in his note 'on a matter of importance,' there was a wrong direction: c. q.: R. Myers, 9 Cr. A. R. 264, 1913. The direction should distinguish between defendant's evidence of what he had heard and what he had known himself: Wolff, 10 Cr. A. R. 107, 1914: five judges: perjury. When the judge drew an unfavourable inference from a certain person not being called, and suggested unwarrantably an offence on his part, after he and other evidence was heard, c. q.: J. H. Hall, 11 Cr. A. R. 22, 1915. Where there was a total misapprehension of an indictment and a direction on a count not before the jury, c. q. on that count as a matter of course: G. Simpson, 3 Cr. A. R. 54, 1909; so J. Long, 8 Cr. A. R. 17, 1912.

Details-brevity] But a judge need not go into every detail in the case (though sometimes it would be better if he did): Hayes, 2 Or. A. R. 70, 1909; Anon., 11 Or. A. R. 283, 1915; nor discuss the defence: Nicholls, 1 Cr. A. R. 167, 1908, where, if he had done so, he might have done it unfavourably' to the defence; nor is he bound to suggest to the jury that they can acquit, unless the facts require it: S. Lyons, 5 Cr. A. R. 99, 1910; or put to them a mere hypothesis' of 'impulsive insanity': F. Thomas, 7 Or. A. R. 36, 1911; the summing up must be looked at as a whole: Crippen, 5 Cr. A. R. at 267, 1910; Kleiss, 4 Cr. A. R. 101, 1910; ib. 146, W. Butler; and its substance rather than its terms: Bradshaw, 1910; H. Carter, 7 Cr. A. R. 194, 1912; especially where counsel have dealt with both sides exhaustively and the case is 'plain': McDougall, 7 Or. A. R. 132, 1912.

Defence before committal] The judge should be acquainted with this: Corrigan, 8 Cr. A. R. 4, 1912: c. q. partly on the ground of a misstatement about this.

Previous conviction] Not only must there be no unauthorised reference to this point, but the judge should not use language suggesting a previous conviction when none is in evidence: Burnell, 10 Cr. A. R. 222, 1914.

Comment on defence] When this amounted to charging the witnesses with perjury and to an expression of belief in defendant's guilt, c. q.:

Frampton, 1917. But the C. C. A. will not review comment on defendant not giving evidence or not calling a particular person: Voisin, 13 Cr. A. R. 89, 1918.

II. LAW.

See cases above, and title, Inadmissible Evidence.

The mere fact that counsel for the defence has not taken a point' of law does not affect the judge's duty to take it: M. A. Smith, 12 Or. A. R. 42, 1916. The O. C. A. must have some apprehension of injustice before it will interfere: Bowler; M. Cohen and Bateman, 1909, where the court said (2 Or. A. R. 207): A mistake of the judge as to fact or an omission to refer to some point in favour of the prisoner is not a wrong decision of a point of law which (ib. 208) would be fatal unless the case came within the proviso of the section' [i.e. 4 (1) of Cr. Ap. A.]. To the same effect, H. Martin, 1 Cr. A. R. 52, 1908, where the judge may in some small respects have slightly misstated the effect of the evidence,' and Totterdell, 5 Cr. A. R. 276, 1910, where there were serious irregularities' and the chairman made a mistake in law. See above, p. 292.

Onus] See that title. One clear rule is that where a primâ facie case having been made against him, defendant offers an explanation, the jury must be directed that the onus of proof of guilt is still on the prosecution and that, if on the whole evidence they are in doubt, they should acquit: Stoddart, 2 Cr. A. R. 217; 73 J. P. 348; 25 T. L. R. 612; 53 S. J. 578, 1909: c. q. So H. Field, 4 Cr. A., R. 190, 1910, and Hagan; and cf. J. A. Bradley, 1910. So in larceny it must be pointed out that the prosecution must prove intent: Sturgess, 9 Or. A. R. 120, 1913: c. q. For receiving, see especially, Schama, &c., 1914, with the comment of the C. C. A. in Hamilton, 1917; Badash; Aubrey, 11 Or. A. R. 182, 1915; G. Bryant, 13 Cr. A. R. 49, 1917: c. q.

Intent] See cases above. Where there was no direction on intent in treason, c. q.: Ahlers. It is a serious misdirection to tell the jury to consider, has defendant proved himself innocent?'; circumstances calling for explanation must not be confused with those establishing guilt: Brain, 13 Cr. A. R. 199, 1918: c. q.; especially when defendant gives evidence: A. E. Lewis, 14 Cr. A. R. 33, 1919: c. q.

Mistake] In Dyson, 1908, manslaughter, the judge omitted to direct the jury on the year and a day' rule: c. q. (ten years' p. s.). Under 8. 13 (1) of the Debtors A. it is necessary to find an intent to defraud, and when a jury was directed to the contrary, c. q.: Brownlow, 4 Or. A. R. 131, 1910. In Ellsom, 7 Cr. A. R. 4; 76 J. P. 38; 28 T. L. R. 1, 1914, murder, the judge wrongly assumed that an incriminating statement by the chief witness for the crown had been known to the defence, and treated it therefore as 'tantamount to his deposition and evidence at the trial,' whereas the defence knew only of other statements by him-which vitiated the whole direction: c. q. So when the summing up used evidence in the depositions not given at the trial: Rimes, 7 Cr. A. R. 240; 28 T. L. R. 409, 1912.

Consent] This defence must be clearly put and when it was not,

Direction on Law.

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297

c. q. J. A. Bradley, 4 Cr. A. R. 225; 74 J. P. 247, 1910. So when the judge told the jury that this defence was an afterthought' when in fact it had been made before the magistrates: Rodda, 5 Or. A. R. 85; 74 J. P. 412; 26 T. L. R. 539, 1910. When this defence is not raised the judge may mention the fact: Wann. But if he does, he must not mislead the jury into thinking that, if consent is a good defence, they may convict, though in fact they believe that there was consent: Horn, 7 Or. A. R. 200; 76 J. P. 270; 28 T. L. R. 336, 1912. In J. May, 1912, 3 K. B. 572; 82 L. J. K. B. 1; 23 Cox C. C. 327; 77 J. P. 31; 108 L. T. 351; 29 T. L. R. 24; 8 Cr. A. R. 68, indecent assault, five judges formulated the following principle: if the facts of a case proved in evidence are such that the jury might reasonably infer consent, there ought to be a direction to the jury that question. It is easy to point out where the onus of proof lies and what is the evidence on that point in any particular case. But if the facts proved . . are not such that the jury might reasonably infer consent, and particularly if the case has been conducted by counsel in such a way as to make the question of consent immaterial [as in this case] or an entirely secondary issue to the main defence, there is no necessity for such a direction. It is impossible to lay down a rule applicable to all cases. . . If counsel acquiesces in the judge's statement that consent (or any other defence) is not to be raised, he cannot rely on that defence on appeal: Wann, above.

.. on

False pretences] The direction on the pretence relied on must be precise: Heath, 7 Cr. A. R. 247, 1912: c. q.; so in Dutt, 8 Cr. A. R. 51, 1912, where there was not a separate direction on separate obtainings or on the guilty knowledge of the defendant at the time of each. Though it is not necessary to insist on the intent to defraud in every case, e.g. W. R. Carr, 12 Cr. A. R. 140, 1916, c. q. where this was omitted: Ferguson, 9 Or. A. R. 113, 1913; Secombe, 12 Cr. A. R. 275, 1917; W. Hunt, 13 Cr. A. R. 157, 1918. A proper direction is especially necessary where evidence has been improperly admitted: R. Wilson, 1913; where there are several counts and no election there must be a direction on each separate offence: Norman, 1915. But in Bentote, 13 Cr. A. R. 149, 1918, where there was no direction on intent, the O. C. A. applied the proviso to s. 4 of the Or. Ap. A. In Summerskill, ib. 170, 1918, there was no specific direction on the intent, no distinction between it and a mistake: c. q.: 'it is very dangerous to refer to recklessness' or 'carelessness.'

Larceny-by a trick] See Hilliard. When the defence is that the property charged is not stolen the identity must be put to the jury: Bruhin, 11 Cr. A. R. 276, 1915: c. q.; Buol, ib. 306: c. q. See also J. Clay, 1909.

Receiving stolen property] See Onus, above. The direction must deal with the knowledge of defendant: Higginbottom, 8 Cr. A. R. 81, 1912: c. q.; and his possession: C. Cook, ib.; Flatman, ib. 256-joint, not to be presumed; and Ashworth, 1911; Leary, 9 Cr. A. R. 85, 1913: c. q. in all. So Hampson, 11 Cr. A. R. 75, 1915, where the jury were not asked to consider whether defendant's explanation was reasonable. In a clear case there need be no reference to the proof that the property was stolen: T. Austin, 1916; H. L. Hamilton, 13 Cr. A. R. 32, 1917: no kind of indication what constituted guilt; no direction on count of being accessory after the fact: c. q.; J. Bacon, ib. 36,

1917: defence that receiving was innocent ignored: c. q. Especial caution is necessary where there are other charges, convictions, pleas or confessions on the same facts: Halikiopulo.

Corroboration] i. Of Accomplices: see that title. Asking the jury directly to say whether the accomplice's evidence has been corroborated in material particulars implicating' defendant is not enough; nor to tell the jury that defendant's possession is such corroboration: Norris, 1916.

ii. Other cases. If counsel has insisted on this point the judge need not be so emphatic: Quinn, 6 Cr. A. R. 269, 1911; but he should consider, as the trial develops, whether a witness may turn out to be an accomplice: Jennings, 1912.

There should be a caution on the uncorroborated evidence of a young child: Pitts, 8 Cr. A. R. 128, 1912, apart from any rule of law: Cratchley, 9 Cr. A. R. 232, 1913; see W. Davies, 1915. In perjury the judge must direct that each assignment must be corroborated: Gaskell, 8 Cr. A. R. 107; 77 J. P. 112; 20 T. L. R. 108, 1912: c. q. He is entitled to say that the corroboration in law is sufficient: Bory, 12 Cr. A. R. 15, 1916: abortion (and, perhaps, generally, ib.).

Alibi] This defence must be left expressly to the jury: it is not for the judge to say that it has broken down: Rufino, 7 Cr. A. R. 47; 76 J. P. 49, 1911; E. Curtis, 1913; Finch, 1916: c. q. Apparently the jury should be directed that they cannot disregard evidence of an alibi unless there is stronger evidence against it: Chadwick, &c., 12 Cr. A. R. 247, 1917: c. q.

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Alternative verdict] The option of the jury to find the lesser offence must depend on the particular circumstances of the case. It cannot be said as a matter of law that the judge must always tell the jury they can find the lesser offence': Naylor, 5 Cr. A. R. 21; 74 J. P. 460, 1910; and he may tell them not to: Fitzgibbons, 7 Or. A. R. 264, 1912: murder and manslaughter; Parratt, 8 Cr. A. R. 193, 1913: disclosing information. When the only defence in murder is accident, he is not bound to suggest manslaughter: J. Fletcher, 1912; Clinton, 12 Or. A. R. 215, 1917; but where there is this alternative defence (or even where there is not, if the facts warrant it), it must be properly put: Hopper, 1915, 2 K. B. 431; 84 L. J. K. B. 1371; 79 J. P. 335; 31 T. L. R. 360; 25 Cox O. C. 34; 11 Cr. A. R. 136: murder, where manslaughter was substituted and sentence varied. Cf. Gorges, 11 Cr. A. Ř. 259, 1915, where there were alternative defences of accident and manslaughter, and the judge said of the former, I do not think you will have any great difficulty in disposing of that.'

In Parks, 10 Cr. A. R. 50, 1914, unlawful wounding' was substituted for wounding with intent to do grievous bodily harm,' where there had been no direction on the point; cf. Vaughan, 1908.

But, on the other hand, the judge should not direct the lesser offence to be found (e.g. indecent assault instead of attempted rape) because he thinks defendant's evidence amounts to it; he must not take away from the jury the decision of facts: J. West, 4 Cr. A. R. 179, 1910: c. q. Cf. G. Stevens, 1913.

Prejudice] Irrelevant observations on the morality instead of the law of a case may lead to quashing: Bloom, 1910.

Special verdict of insanity] In a proper case there should be a clear direction that the jury can find this: J. W. Smith, 5 Cr. A. R. 130; 26 T. L. R. 614, 1910. But when defendant repudiates this defence and sets up another, e.g. self-defence, the latter must not be ignored: J. H. Hill, 7 Cr. A. R. 26; 22 Cox C. C. 625; 76 J. P. 49, 1911: c. q. The essential direction is that the issue is sanity or insanity, and if this is given formal reference to a 'special' verdict is unnecessary: Coleman, 7 Or. A. R. 65, 1911.

It seems that the judge should carefully discuss the evidence of insanity: Loake. He is entitled to make known his views on M'Naughten's case; Marsland, 7 Cr. A. R. 80, 1911. Though insanity must be put to the jury, inability to form an intention owing to drunkenness, if there is no evidence that defendant was drunk, need not be: Honeyands, 10 Or. A. R. 60, 1914. See Intoxication.

Similar acts] See Inadmissible evidence, above. Where these have wrongfully been given in evidence, the judge cannot too emphatically confine the jury's attention to the act charged: Probets. Where they are admissible, the direction must be express that they are alleged solely as proof of a specific intent: Baird, 1915.

Confession] See Boughton, 1911.

Co-defendant's incriminating statement] See that title.

Conspiracy] It is not enough to treat the case of each defendant separately; the alleged concert must be dealt with: Bailey and Underwood, 9 Cr. A. R. 94, 1913: c. q. So Ashdown, 1916. The jury must not assume that if one is convicted the other must be: F. Higgins, 14 Cr. A. R. 28, 1919: c. q.

Assault indecent or common?] See Assault.

More than one defendant] The direction must carefully distinguish between different defences: Rowan; especially where one defendant is likely to suffer from connection with another: Batty; Pritchard, 9 Cr. A. R. 210; 23 Cox C. C. 682; 109 L. T. 911, 1913: one c. q. Cf. Seddon. Where there was no direction on the statements of codefendants, c. q.: Altschuler, 11 Or. A. R. 243, 1915; Ashdown, 12 Or. A. R. 34, 1916: c. q. So McGill, 1914: c. q.; W. Johnson, 6 Cr. A. R. 82, 1910: false pretences; Schofield, 12 Cr. A. R. 192, 1917: c. q.; Ashworth, 1911: all c. q.; A. Graham, 14 Or. A. R. 7, 1919: c. q.; A. Matthews, ib. 23: c. q.; and see Conspiracy, above.

Several charges in one indictment] There should be a direction that if the jury are satisfied with the defence [alibi] on one, it is open to them to acquit on all: T. Finch, 12 Or. A. R. 77, 1916: c. q. Where there was mis-direction on one of distinct counts tried together, c. q.: E. Morgan, 13 Cr. A. R. 2, 1917.

More than one indictment] The direction must be especially careful where the defendant has been tried by the same jury for a similar offence: Brereton, 10 Cr. A. R. 201, 1914.

Motive] In Brownhill, 8 Cr. A. R. 120, 1912: libel, appellant complained that the judge had not mentioned the absence of motive, but