PART VII. witnesses.

Party discredit ing his

Own

witness.

(Bishop of Durham v. Beamont, 1 Campb. 207.) But if his character has been impeached general evidence of his good conduct may be given by the party calling him in support of his character. (Bate v. Hill, 1 C. & P. 100; Rex v. Clarke, 2 Stark. N. P. C. 241.) And, perhaps, this is so where his character is only impeached on cross-examination.

By the 28 & 29 Vict. c. 18, s. 3, a party producing a witness shall not be allowed to impeach his character by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent (see Jackson v. Thomason, 31 L. J. Q. B. 11; 1 B. & S. 745) with his present testimony; but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

If a witness gives evidence different to that which the party calling him expects, such party is at liberty to make out his own case by other witnesses, though in so doing he contradicts his own witness; for such evidence is evidence in the cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental and consequential only. A witness is not adverse within the meaning of this section, merely because his testimony is unfavourable to the party calling him. To be so "adverse" he must, in the opinion of the judge, be" hostile." (Greenough v. Eccles, 5 C. B. (N.s.) 786; 28 L. J. C. P. 160.)

CHAPTER XXXIII.

WRITTEN EVIDENCE.

We will now make some observations as to the proof and effect of public documents. There are many statutes which have been passed for facilitating the proof of such documents, which will be found referred to in 3 Russ. on Crimes, pp. 407–433 (a). It is not our intention to set these out at length. Some of them and of the rules of most general application in criminal cases, however, will be here referred to.

a. Public documents

b. Private documents

p. 239. p. 248.

CHAP. XXXIII.

The courts take judicial notice of a public statute. By Public the 8 & 9 Vict. c. 113, s. 3, all copies of private or local and documents. personal Acts of Parliament not public Acts, if purporting

to be printed by the Queen's printers, are admissible in Statutes. evidence, without proof being given that such copies were so printed. By the 13 & 14 Vict. c. 21, s. 7, Every Act made after 1850, except the contrary be expressly provided therein, is deemed to be a public Act, and is judicially taken notice of as such. In some Acts of Parliament, which are not public statutes, a clause is inserted declaring them to be public Acts, and that they shall be taken notice of as such, without being specially pleaded; in which case they need not be proved. By the 41 Geo. 3, c. 90, s. 9, copies of the

(a) The 31 & 32 Vict. c. 37, relates to the proof of certain procla mations, orders, and regulations; the Extradition Acts, 1870 and 1873, 33 & 34 Vict. c. 52, s. 15, and 36 & 37 Vict. c. 60, s. 4, relate to the authentication of warrants and depositions, &c., made under these Acts; the 14 & 15 Vict. c. 99, s. 7, relates to proclamations, judgments, &c., of foreign states and of the colonies; the 28 & 29 Vict. c. 63 relates to the proof of colonial laws; the 14 & 15 Vict. c. 99, ss. 9, 10, relates to the proof of Irish judgments; the 22 & 23 Vict. c. 63, gives a mode of ascertaining the law in different parts of the Queen's dominions; the 24 & 25 Vict. c. 11, contains similar provisions as to ascertaining the law of certain foreign countries; the 6 & 7 Vict. c. 86, an Act for registering births, deaths, and marriages in England, and the Births and Deaths Registration Act, 1874, 37 & 38 Vict. c. 88, ss. 38, 49, 51 relate to the proof of births and deaths; see also 3 & 4 Vict. c. 92, and 27 & 28 Vict. c. 97 as to non-parochial registers.

PART VII. statutes of Great Britain and Ireland prior to the union, printed by the duly authorized printer, are received as conclusive evidence of such statutes.

Gazette.

Public

books and documents.

Certain

documents to be received in

The Gazette proves itself without proof of its being bought at the Queen's printers. (See 31 & 32 Vict. c. 37.) It is evidence of many things contained therein, and by sect. 2 of the above statute it is primâ facie evidence of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council, also of any proclamation, order, or regulation issued by or under the authority of certain departments of the Government. (See 3 Russ. on Crimes 410.)

Whenever an original book or document is of a public nature and admissible in evidence as such, an examined copy is, for public convenience, also admissible-thus examined copies of entries in the books of the bank of England (Mortimer V. M'Callan, 6 M. & W. 58), or in the books of the Commissioners of Land-tax or of Excise, or in a poll-book at an election (Mead v. Robinson, Willes, 424) are evidence of the originals.

By the 8 & 9 Vict. c. 113, s. 1, "Whenever by any Act now in force or hereafter to be in force any certificate, official or public document, or document or proceeding of any corevidence poration or joint-stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be receivable seal or sig in evidence of any particular in any court of justice, or before of person any legal tribunal, or either House of Parliament, or any signing the committee of either House, or in any judicial proceeding, the

without proof of

nature,&c.,

same.

Courts, &c., to take judicial

notice of

signature of certain judges, &c.

same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp where a seal or stamp is necessary, or of the signature or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence."

A person de facto filling an office, carrying with it the custody of the records of the court, may lawfully give such a certificate, although he may not hold such office de jure. (R. v. Parsons, 35 L. J. M. Č. 67.)

By sect. 2, "All courts, judges, justices, &c., are to take judicial notice of the signature of any of the judges of the superior courts at Westminster, provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document."

CHAP.

XXXIII.

By the 14 & 15 Vict. c. 99, s. 14, "Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper Examined custody, and no statute exists which renders its contents or certified provable by means of a copy, any copy thereof or extract copies of therefrom shall be admissible in evidence in any court of certain documents justice, or before any person now or hereafter having by admissible law or by consent of parties authority to hear, receive, and in eviexamine evidence, provided it be proved to be an examined dence. copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of 90 words." The provisions in this section are cumulative, and do not restrict the proof to the mode pointed out by it. (Reg. v. Mainwaring, D. & B. 132.)

without

By the 14 & 15 Vict. c. 99, sect. 10, every document ad- Documents missible in evidence of any particular in any court of justice admissible in Ireland, without proof of the seal or stamp or signature proof of authenticating the same, or of the judicial or official character seal, &c., in of the person appearing to have signed the same, shall be Ireland admitted in evidence to the same extent and for the same equally admissible in purposes in any court of justice in England or Wales, or England or before any person having in England or Wales by law or Wales. by consent of parties authority to hear, receive, and examine evidence, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same.

admissible The copy

Except upon an issue of nul tiel record, a record may be Proving a proved either by an exemplification or a copy. Exemplifi- record. cations are either under the great seal or under the seal of the court in which the record is preserved, and are without proof of the genuineness of the seal. must be proved by some witness who has examined it with the original; and it ought to appear that the original was seen in the hands of the proper officer, or in the proper place for its custody. An office copy in the same court in the same cause, is equivalent to a record; but in another court, or in another cause in the same court, the copy must be proved.. The Crown side of the court of quarter sessions is a court of record. (R. v. Smith, 8 B. & C. 341.)

The issue of nul tiel record seldom occurs in criminal cases, except where the defendant pleads autrefois acquit or

M

Proof of conviction or ac

quittal.

PART VII. autrefois convict (a). By the 14 & 15 Vict. c. 99, s. 13, "Whenever in any proceeding whatever (Richardson v. Wilks, 42 L. J. Ex. 15; L. R. 8 Ex. 69) it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified or purport to be certified under the hand of the clerk of the court, or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof:" and see the 14 & 15 Vict. c. 100, s. 22, as to what certificate is sufficient evidence of a trial for felony or misdemeanor upon the trial of an indictment for perjury committed thereon. The indictment, with the officer's note upon it of a verdict of not guilty, is sufficient evidence during the same assizes, upon a plea of autrefois acquit, that the prisoner was acquitted upon such indictment. (Rex v. Parry, 7 C. & P. 836.) And the caption of the general gaol delivery of the Central Criminal Court, the indictment with the note of the prisoner's plea, the verdict and the sentence entered thereon, together with the minutes of the trial entered by the officer of the court in the minute book are sufficient evidence at a subsequent sessions of the Central Criminal Court. (Reg. v. Newman, 2 Den. C. C. 390; 21 L. J. M. C. 75,)

Proof of previous

conviction.

66

By 34 & 35 Vict. c. 112, s. 18, a previous conviction may be proved in any legal proceeding whatever against any person by producing a record or extract of such conviction, and by giving proof of the identity of the person against whom the conviction is sought to be proved, with the person appearing in the record or extract of conviction to have been convicted. A record or extract of a conviction shall, in the case of an indictable offence consist of a certificate, containing the substance and effect only (omitting the formal part of the indictment and conviction), and purporting to be signed by the clerk of the court or other officer having the custody of the records of the court by which such conviction was made, or purporting to be signed by the deputy of such clerk or officer; and in the case of a summary conviction shall consist of a copy of such conviction, purporting to be signed

(a) As to the mode of proof of a record on this issue, where the statute mentioned infra does not apply, see 3 Russ. on Crimes, 413.