CHAP. V. lease under a proviso for re-entry;-and this ground of protec tion subsists in England to the present day. Exposure to action, loss, or debt. Documents. It was ever at one time matter of question, whether a witness however might not also claim exemption, on the ground that the answer to the question put to him might expose him to some civil action, or pecuniary loss, or might charge him with a debt. This has now, however in England, for some time past, been set at rest by an enactment of the Legislature, which, in the case of a question relevant to the matter at issue, declares that the witness cannot by law refuse to answer on the ground that the answer may establish, or tend to establish, that the witnesss owes a debt, or is otherwise subject to a civil suit (1). The statute partakes less of the character of a new enactment, than of an Act declaratory of the existing law (which, in fact, on its face it purports to be); and though India is not mentioned in it, nor has there been any actual Indian legislation on the point, the statute has been treated as regulating the law there. It should be observed, however, that it makes relevancy a condition to the right of examination; and it preserves the protection on the ground of exposure to penalty or forfeiture. In this last respect the Evidence Act of 1855 places the law in India on a different footing from that of England. Requiring only as a preliminary condition that the question be relevant to the matter at issue, section 32 of the Indian Act declares the witness liable to answer, notwithstanding the answer may expose, or tend directly or indirectly to expose, him to a penalty or forfeiture of any kind. The English statute does not in terms refer to the production of documents; but documents are considered to fall within its spirit; and their production has been held compellable accordingly, notwithstanding it might be prejudicial to the civil interests of the witness, as respects exposure to action, pecuniary loss, or the charge of debt (2). "I can find no rule of law," says Patteson, J., "which prevents a man from producing anything, except in the case of title-deeds." The Indian Act has the like silence in this particular as the English one. Documents in connection with this point are not in terms referred to. (1) 46 George III, c. 37. (2) Doe v. Dale, 3 Queen's Bench Reports, p. 609. Clause 21, indeed, of the Indian Act addresses itself to the CHAP. V. subject of documents; and enacts that a witness, whether a party to a suit or not, shall not be bound to produce any document, held by him for any other person who would not be bound to produce it if in his own possession. Clause 22 provides that, in the case of a party to a suit being a witness, he shall not be bound to produce any document not relevant or material to the case of the party requiring its production; and though Clause 23 enacts that a witness summoned to produce a document shall bring or cause it to be brought into Court, albeit there may be a valid objection to the right to compel production, or to put it in evidence, or to disclose its contents, it leaves the validity of the objection to be determined by the Court; to which, for that purpose, it gives power of inspection; and, in discharging the duty of inspection, it directs the Court to receive any admissible evidence respecting the document which may be given by the objector, and to call in the aid of interpreters. None of these clauses however would seem addressed to the point of production, where production might involve exposure to either civil liability or penalty. Indeed they appear rather framed to protect from, than enforce, production; and that, whenever either the document is held by one as a trustee for another not himself bound to produce it, or the document is itself irrelevant to the issue. It may be considered accordingly that the production in question would in India be so far regulated by English law, that exposure to pecuniary consequences would constitute no ground of protection to the document sought to be produced. Moreover, the Indian Act withdrawing even the exposure to penalty or forfeiture as a ground of protection, it would seem to follow, on a corresponding principle, that the production of documents might be insisted on, notwithstanding the pretext of the exposure thereby to penalty or forfeiture. criminal charge With respect to the ground of protection against answering, Exposure to in the exposure to criminal charge, it might be anticipated that, according to if English law had its protection against exposure to civil penalty English law. or forfeiture, a fortiori would this exist in relation to criminal liability; and against any course of examination having this tendency, the law of England protects. 66 Upon a principle," says Mr. Starkie, "of humanity, as well as of policy, every witness is protected from answering questions, CHAP. V. by doing which he would criminate himself. Of policy, because it would place the witness under the strongest temptation to commit the crime of perjury; and of humanity, because it would be to extort a confession of the truth by a kind of duress, every species and degree of which the law abhors. It is pleasing to contrast the humanity and delicacy of the law of England in this respect with the cruel provisions of the Roman law, which allowed criminals, and even witnesses, in some instances, to be put to the torture for the purpose of extorting a confesssion" (1). Continuing liability to consequences. Indirect tendency to Whether, however, the exposure be one to consequences, either civil or criminal, those consequences must have a still possible existence. Thus, in a case of crime, if its punishment have been undergone, or in the case of penalty, if the time for enforcing it have passed, or in one of forfeiture, if the forfeiture have been released, the cause for protection ceasing, the protection would cease with it, and the witness be bound to answer. It is not necessary that the exposure should be the necessary create liability, result of the disclosure. It is sufficient ground of protection it Allowance of protection discretionary with Judge. Foreigners. Doubt if protection not such be even its indirect tendency. Whether it be a case of crime, penalty, or forfeiture, the protection would extend to every link in the chain of exposure, however remote. The protection once claimed, the tendency of the question is one for the decision of the Judge; and this he must decide on such general statement only of the probable effect of the testimony as may suffice to make the objection intelligible. To require of the witness a full or minute explanation would in itself, by its very statement, destroy the protection. But the mere declaration of the witness as to the effect of the testimony, even though delivered on oath, would be insufficient, were the circumstances detailed inadequate in themselves to induce the Judge to award the protection; the point has now been definitively settled (2). A foreigner cannot object to answer on the ground that his testimony might expose him to prosecution in his own country. It has been doubted whether the chivalrous consideration of the too extensive. English law has not been carried beyond the verge at which the purposes of justice would require it to stop and a distinction has been suggested, though never formally recognized, between the case in which the examination is sought to be pursued from its (1) Starkie on Evidence, p. 41. (2) R. v. Boyes, 30 Law Journal (Q. B.), p. 301; Taylor on Evidence, Vol. II, p. 1264; and Best on Evidence, p. 177. direct bearing on the issue, the subject of trial, and that in which its only object is to discredit the witness. It has been said that, even assuming that the protection should exist in reference to the latter, it should be withheld in the instance of the former; and the distinction appears a reasonable one (1). On several occasions the English Legislature has either directly deprived the witness of the privilege, or by an Act of Indemnity has rendered it valueless. CHAP. V. relation to criminal Be this, however, as it may, so far as relates to testimony Law of India in bearing on the issue, the knot, as regards India, has been cut by liability to the Indian Act, which (though called for probably in the peculiar charge. circumstances of the country) is, in this respect, in antagonism to the protective principle of the English law. The Evidence Act enacts (Section 32) that a witness shall not be excused from answering any question relevant to the matter at issue, in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate him, or that it will expose, or tend directly or indirectly to expose him to a penalty or forfeiture. It contains, however, at the same time, a provision that no answer the witness may thus be compelled to give shall, except for the purposes of punishment for false evidence, subject him to arrest or prosecution, or be used as evidence against him in any criminal proceeding. It will be noticed that the Act makes relevancy to the matter at issue a condition of the obligation; so that, even under this provision, an answer, it is apprehended, could not be compelled for the mere purpose of discrediting a witness, did not the matter, the subject of enquiry, fall within this condition of relevancy. As in the case of documents involving an exposure to pecuniary liability, so neither in those affecting self-crimination, does the Indian Act, in terms, contain any express provision. We have already suggested, as respects the cases in which the Act withdraws the privilege from answering on the ground of exposure to civil penalty or forfeiture, that the protection to the document would follow the fate of the protection against answering; and the like principle would seem to apply to documents obnoxious to the establishment of criminal liability. (1) See Taylor on Evidence, Vol. II, p. 1262; and post, p. 146. CHAP. V. Exception in case of Insolvents. Degrading India. Protection to title-deeds English law. The protection has never been imported into the Bankrupt or Insolvent Law, and the minor protection afforded to a witness under the 32nd Section of the Indian Act is not extended to the insolvent in proceedings under the Insolvent Act. The law is still unsettled in England as to how far a witness is bound to answer questions tending to disgrace him, or degrade his character. Mr. Best says:- "Whether a witness is compellable to answer questions having a tendency to disgrace him; as, for instance, whether he was ever convicted of an offence, or suffered some infamous punishment, or been in gaol on a criminal charge, is a great question in our books, and one on which any attempt to reconcile the authorities would be perfectly hopeless. It is indeed settled that he must answer if the question is relevant to matter in issue in the cause: the doubt is, when it relates to collateral matters, and is only put in order to test his credit" (1). But in India the Evidence Act (II of 1855), Section 33, says that a witness may be questioned as to his having been convicted; and if he denies the fact, or refuses to answer, the conviction may be proved (2). II. The next ground of exception, that of trenching on proaccording to prietary rights, addresses itself to the title-deeds of property; and these the law protects from production, whether belonging to the witness himself, either beneficially, or in the character of a trustee (3), or held by him as the solicitor or other agent of another. It does this in the latter instance, whether the real beneficiary be before the Court or not. Title-deeds according to Such is the undoubted law of England on the subject; and it Law of India. is apprehended that the same would prevail in India; and that even in the Courts not established by Royal Charter. The Evidence Act of 1855, indeed, contains, as we have seen, a provision (Section 22) relieving a witness, being a party to a suit, from the production of documents not relevant or material to the case of the party requiring its production, and so far apparently implies an antecedent obligation to produce what was relevant or material. It will be observed, however that, if the clause imply, it does not create, the obligation; and it is apprehended that there is nothing in this provision which can abrogate the well-established rule which protects title-deeds from production (1) Best on Evidence, p. 180; and see Taylor on Evidence, Vol. II, p. 1266; and ante, (2) See post, Chap. VIII. p. 145. (3) Taylor on Evidence, Vol. I, p. 810. |