Original pro ceedings should clerk. himself of the sufficiency of the evidence, he can probably do this more expeditiously and pleasantly by dispensing with the tedious and irksome task of having written down in minute detail the testimony of the witnesses; but, in this Colony, it is made peremptory that the evidence be taken in writing, the Act of Council adopting the Administration of Justice Acts, (13 Vict., No. 43) providing (a) that in every case of summary conviction, all parties interested therein shall be entitled to demand and have copies of the information and depositions, as well as of the conviction or order, with a view to afford summary relief against erroneous decisions to any person who may feel aggrieved. It must, therefore, be deemed both necessary and expedient for the evidence to be carefully taken down, and then read over to and signed by the witnesses, as well as the Magistrate; and for such evidence to be filed with the original information at the clerk's office. All the depositions, in whatever manner they be preserved by may be taken, as well as the original information, should be carefully indorsed and preserved by the Magistrate's clerk, for future reference, as occasion may arise. Examination in absence of In the absence of professional assistance on the Counsel, &c., for part of the complainant, the examination of the the complainant witnesses is conducted by one of the Magistrates or the clerk; and the same rules and formalities Magistrate or the should be observed in the mode of putting the questions as in the Superior Courts. should be con ducted by the Clerk, and leading ques tions should be avoided. It is very common for gentlemen who have not studied the principles and rules of evidence, to fall into the error of supposing that the strictness observed in the Superior Courts, with regard to leading questions, &c., savours more of legal technicality than of equity or justice; and has a tendency to smother the truth, rather than promote its fair development; but practical experience readily detects the aptitude and ease with which an ignorant or dishonest witness may (a) s. s. 9, 12, & 15. establish a series of facts by merely answering yes or no to leading questions, when in reality he has no actual knowledge whatever of such facts, but has perhaps heard or supposed them. In short, the unanimous voice of the most learned jurists and philosophers, (not to mention the deliberate opinion of the learned Judges of modern as well as of former ages,) has decided that truth and impartial justice alike forbid leading questions to be put to a witness so as to suggest favorable answers, on his examination in chief, i. e. his original examination on behalf of the party who seeks the benefit of his testimony. But if Magistrates are careful to prevent leading questions, and to repudiate hearsay answers, they may be fairly allowed to relax somewhat from the strictness exercised in the Superior Courts, with regard to other rules of evidence which are not of such general force, and which have of late years been qualified to some extent by the learned Judges themselves. At all events, in the administration of impartial justice in their minor Courts, Magistrates ought not to deprive suitors of the benefit of the fullest investigation, by too nice an observance of technicalities. The recent Act, 11 & 12 Vict., c. 43, provides that every prosecutor of an information who has no pecuniary interest in the result, and every complainant in a complaint, whatever may be his interest in the result, shall be a competent witness in support of the information or complaint.(a) When the informant is entitled therefore to a portion of the penalty, and the proceeding is in the nature of a qui tam information, the informant or prosecutor's evidence cannot be received, unless his incompetency as a witness is expressly cured by the particular statute under which the information is laid. It was formerly held that a party could not re- When a witness pudiate or contradict the testimony of his own wit- may be called to (a) Sect. 15. contradict the evidence of a former witness. Extent of evidence to be heard. When a confession may be ness by calling subsequent witnesses for that purpose, on the ground that the evidence of the first witness was quite unexpected or different from what was anticipated; but the Court of Queen's Bench has of late distinctly recognized the principle that where the testimony of a witness militates in any material point against the party who calls him, such party is at liberty to adduce other evidence to contradict his former witness on any fact material to the case. (a) Magistrates have sometimes a difficult course to pursue in exercising their discretion, as to the extent to which they shall hear evidence; but they cannot be required to hear any evidence which ought not to influence them in their adjudication. (b) They should however require sufficient evidence to be adduced to prove the offence clearly, so as to satisfy the time, intent, and meaning of the statute. And where the penalty to be imposed is in the nature of compensation to complainant, evidence should be required of the extent of the damage. A free and voluntary confession made by a deused as evidence. fendant, whether in the course of conversation with private individuals, or while in the presence of the Magistrates, is admissible in evidence against him. (c) But before a confession is received in evidence, it must be clearly ascertained that it was perfectly free and voluntary, and was not obtained or improperly extorted by means of promises or threats. And although evidence of this kind ought to be regarded with some degree of jealousy by Justices, they would be wrong in rejecting it altogether. (d) Evidence of accomplice admissible in certain cases. So also the evidence of an accomplice is admissible, for where several persons have committed a joint offence, there seems to be no legal objec (a) Friedlander v. London Assurance Company. 4 B. & (b) R. v. Minshull, 1 N. & M. 277. tion to the admission of one of them as a witness against the others, in the same way as accomplices in the superior Criminal Courts are admitted "Queen's Evidence," as it is technically called; but a Magistrate ought scarcely to rely upon such testimony, unless materially corroborated by some collateral proof, although there are many cases where a jury have believed the uncorroborated testimony of an accomplice and convicted the the prisoner. (a) Where the particular statute under which the information is laid, is silent as to the nature or admissibility of the particular evidence to be given or required thereon, Justices are of course bound by those general rules of evidence which are to be found in the various treatises upon that branch of the law, and which rules are much too extensive to be farther noticed here, even in the most abridged form. witnesses to be As the examination in chief of each witness for Prosecutor's the prosecution is ended, the defendant should, cross-examined in all cases of summary conviction, if present, by defendant, be allowed, and even invited, to put any questions to the witness by way of cross-examination, with a view to elicit evidence in his own favour; and the prosecutor or complainant should then be allowed to re-examine the witness, if necessary, in the same manner as is practised in the Superior Courts. When the prosecutor or complainant has pro- and re-examined duced all his witnesses, and their evidence has by prosecutor. been heard, together with any other evidence which he may adduce in support of the information or complaint, the case for the prosecution is prosecutor is closed, and the defendant should be called upon When case for to address the Court in his defence, and produce Plosed, defendant his witnesses; or if he have the assistance of to address the counsel or attorney, it would be more prudent to leave the case altogether in his hands. (a) Rex v. Attwood, 1 Leach, C. C. 464, Rex v. Hastings, 7 Car. & P. 152. Court. Defendant's wit- When prosecutor may call wit Should the defendant call any witnesses in support of his defence, they should be sworn, and their evidence heard, together with any other evidence the defendant may adduce, in the same manner as the witnesses for the prosecutor or complainant, who should be allowed, at the close of each witness's evidence to cross-examine them. After the cross-examination of the defendant's witnesses by the prosecutor or complainant, and nesses in reply. their re-examination by the defendant, the Magistrates should hear the evidence of such witnesses as the prosecutor or complainant may produce, and examine in reply to contradict the witnesses of the defendant, in case he has examined any witness or given any evidence other than as to his general character, after which the case is ripe for adjudication. (a) Information to be justification is proved, Whenever a defendant can make it appear to dismissed where the Magistrates, either from the cross-examination of the witnesses for the prosecution, or the testimony of his own, that the alleged offence was committed in the assertion of a bona fide claim of right, or can substantiate any qualification, exemption, or exception in his favor, the information should be dismissed. Thus, where upon a charge of assault, laid under the statute relative to "Injuries to the Person," (b) the defendant proves a justification to the satisfaction of the Justices, or that the offence was of a trifling nature, they should dismiss the information, with or without costs, as they may think proper. however, such claim of right should appear to be malâ fide, or devoid of any reasonable foundation, or of any probability of its being established, the Justices should refuse to entertain the objection. (c) If A bond fide claim of right will operate in ousting the jurisdiction of Justices of the Peace, (a) 11 & 12 Vict., c. 43, s. 14. (b) 9 Geo. 3, c. 31. (c) Hunt v. Andrews, 3 B. & A. 341. |