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9. Constables.- Coroners' constables can be sworn as witnesses, or as jurors, or as both together.1

SEC. 2.-PRIMARY EVIDENCE.

It is an inflexible rule that the best evidence of which the nature of the thing is capable must be given. Hence a copy of a deed or will is inadmissible as evidence, so long as the original exists and is producible, no matter however indisputably authenticated.

On the same principle, so long as a written document can be produced, oral evidence of its contents is inadmissible, except when it is in the possession of an adverse party, who refuses or neglects to produce it; or when it is in the possession of a party who is privileged to withhold it, and who insists on his privilege; or when the production of the document would be, on physical grounds, impossible, or very inconvenient; or when the document is of a public nature, and some other mode of proof has been specially substituted for reasons of convenience. The preliminary question as to whether secondary evidence of a document should be admitted or not, is one for the coroner to decide alone, after hearing all the evidence tendered on the point.

And a written statement of a witness is not to be admitted as equal to the oral evidence of the 1 Reg. v. Winegarner, 17 O. R. 208.

2 Roscoe's Cr. Ev. 2.

B.C.-13

witness himself. Any evidence which has testimony of a more original kind behind it must not be received until the better evidence is shewn to be unprocurable. But if the original evidence cannot be produced, the next best need not to be required, for there are no degrees in secondary evidence.

SEC. 3.-PRESUMPTIVE EVIDENCE.

On many investigations no direct proof as to the perpetrator of the crime can be obtained; but circumstances point so strongly in one direction, that it would be contrary to reason not to call upon the suspected person to contradict or explain this evidence against him. Evidence of this kind is called presumptive, and care must be taken not to draw too hasty conclusions from it.

A case may here be mentioned which will serve to illustrate the subject, and also, from its unfortunate result, to shew the danger of placing too much reliance upon presumptive evidence. A man was apprehended with a horse in his possession which had recently been stolen, and as he could give no satisfactory explanation of how he came by the animal, and the thief was unknown, the law presumed he was the man who had stolen it. Horsestealing was then a hanging matter, and the poor man was executed. Afterwards it came out that the real thief, being closely pursued, had overtaken the man and asked him to hold the horse for a few minutes, and in this way the thief escaped and the innocent man was found with the horse.

In this connection the following presumptions may be mentioned:

The law presumes innocence.

The law presumes in criminal matters that every person intends the probable consequence of an act which may be highly injurious.

Every one is presumed to be sane at the time of doing or omitting to do any act, until the contrary is proved.1

The law presumes that a person acting in a public capacity is duly authorized to do so.

If a man by his own wrongful act withhold the evidence by which the facts of the case would be manifested, every presumption to his disadvantage will be adopted.2

A presumption may be rebutted by a contrary and stronger presumption.3

There is no presumption that a married woman committing an offence does so under compulsion, because she commits it in the presence of her husband."

SEC. 4.-MATTERS OF OPINION.

Ordinary witnesses must only state facts, and leave the judge or jury to draw all inferences from them. Their own opinions regarding the facts to which they testify should not be received. But

155-56 V. c. 29, s. 11, Dom.

2 Powell's Ev. 56.

35 Taunt, 326.

4 55-56 V. c. 29, s. 13, Dom.

the opinions of skilled or scientific witnesses are admissible to elucidate matters which are of a strictly professional or scientific character.1

SEC. 5.-MATTERS OF PRIVILEGE.

A witness may be asked any question, but there are many he need not answer.

A witness is not now excused from answering any question tending to criminate himself, or which may tend to establish his liability to a civil proceeding at the instance of the Crown or of any other person, but no evidence so given can be used against him in any criminal proceeding thereafter instituted against him, other than a prosecution for perjury in giving such evidence.2

Counsel, solicitors and attorneys cannot be compelled to disclose communications which have been made to them in professional confidence by their clients. This, however, is the privilege of the client, not of the legal advisers.

Clergymen and medical men do not possess the same privilege with regard to confidential communications made to them in the performance of their professional duties; but the judges have shewn a disinclination to receive such communications made to clergymen.

1 Powell's Ev. 93. Wharton, in his work on Criminal Evidence, lays it down as a general rule in the justice and propriety of which Mr. Justice Gwynne, of the Supreme Court of Canada, says in Preeper v. The Queen, 15 S. C. Rep. at p. 418, he entirely concurs, that it is not necessary for a witness to be an expert to enable him to give an opinion as to matter depending upon special knowledge, when he states the facts upon which he bases his opinion.

2 The Canada Evidence Act, 1893, s. 5.

A witness is not allowed to state facts, the disclosure of which may be prejudicial to any public interest.

In criminal cases no evidence can be excluded on the ground of indecency.1

SEC. 6.-HEARSAY EVIDENCE.

Hearsay evidence, or the oral or written statement of a party who is not produced in court is, as a general rule, not admissible. The principal exceptions to this rule requiring notice are

(a) When offered in corroboration of a witness' testimony, to shew that he affirmed the same thing before on other occasions.2

(b) When it is essentially connected with a transaction and forms part of it.

(c) When given as popular reputation or opinion or as the declarations of deceased witnesses of competent knowledge, if made before the litigated point has become the subject of controversy, and without reasonable suspicion of undue partiality or collusion.3

(d) When the evidence consists of dying declarations in cases of homicide. The death of the deceased must be the subject of the investigation, and the circumstances of the death the subject of the dying declarations. Here the feeling of responsibility on the approach of death is looked

1 Powell's Ev. 83. 2 Powell's Ev. 87.

3 Powell's Ev. 94.

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