action or suit, in which all parties are competent); (c) and as in such cases the Crown is the real prosecutor, and the informers or persons preferring the charge are nominal prosecutors, they are not, therefore, parties to the proceeding, but "persons in whose behalf such proceedings are brought" within the 2nd section; consequently their wives or husbands are not excluded by the 3rd s. of 16 Vic., No. 14, or by s. 3 of 22 Vic., No. 7, (which sections appear only to disqualify the husband or wife of the party charged), from giving evidence therein, when summoned or examined on their behalf; but, it would seem that they cannot be called by the defendant. (D) In all other cases before Justices, such as proceedings relative to orders for payment of money, or otherwise, (a distinction made by Jervis's Act 11 & 12 Vic., c. 43, s. 1), the complainant and the defendant are "parties" to the proceeding in all cases before Justices. The 3rd section of 16 Vic., No. 14, excepts only indictable offences and summary convictions from the operation of the 2nd section; and it therefore follows, that all other proceedings before Justices, such as sureties of the peace, recovery of wages, bastardy cases, &c., are within the latter section, which allows any party to the proceeding, or any other person, to give evidence for either party thereto. The 3rd sect. of 16 Vic., No. 14, & 22 Vic., No. 7, (excepting husbands and wives from giving evidence for or against each other in any criminal proceedings), also do not interfere with, or exclude, the testimony of the husband or wife in cases of personal injury committed by one upon the other, or in cases of high treason, where their evidence was previously admissible, (Arch. Cr. Pl., pp. 227, 228), but leave the law in that respect as it stood before, for the statute is to extend the competency of witnesses, and not to diminish such. Practically, therefore, the operation and effect of the statutes, 16 Vic. No. 14, and 22 Vic. No. 7, may be thus

(c) The words "criminal proceeding" over-ride both the exceptions, viz., any indictable offence, and any offence punishable on summary conviction, (AttorneyGeneral v. Radloff, 10 Exch., 94). The learned Editor of the last edition of Paley, (p. 92), says: "It is submitted that every proceeding before a Magistrate, where he has power to commit, in contradistinction to his power of making an order, is a criminal proceeding, whether the Magistrate be authorized, in the first instance, to direct payment of a sum of money as a penalty, or at once to adjudge the defendant to be imprisoned."

It is because a man and his wife are sometimes both of them parties to the same information, or other criminal proceeding, that the clause prohibiting them, under such circumstances, from testifying for or against each other, is retained in this Act; were it not for such a clause, a wife, conjointly indicted with her husband for murder, might be called by the prosecutor to establish the man's guilt, or the man might be examined by the counsel for the defence, to prove the woman's innocence.

It would hardly seem necessary to add, that the wife of a prosecutor in any such proceeding is not excluded from giving evidence either for the Crown or for the defendant, (Taylor Ev., 1060), were it not for the following extraordinary decision of the Parramatta Bench, which occurred but a few months ago: The wife of a man who had been most brutally assaulted, was called to give evidence, corroborating that of her husband, as to what had happened. The Magistrates were persuaded by the attorney for the defence that, under this clause, the wife was incompetent to give evidence for the husband, and dismissed the case, alleging that they did so because the husband's evidence was unsupported. (D) See the last edition of Oke's Synopsis, (1859); sed quære.

shown in the two classes of proceedings, with this general exception in all cases, and with respect to all persons, whether the proceeding be in its nature criminal or otherwise, that nothing in the Act contained "shall render any person compellable to answer any question tending to crimi nate (E) himself or herself," (s. 3); but he is competent to do So, and may therefore answer such a question if he chooses.

1st. As to Indictable Offences, and Offences Punishable on Summary Conviction.

1. The informer or prosecutor is competent and compellable to give evidence for himself or the defendant. (S. 2).

2. The husband or wife of the informer or prosecutor is likewise competent and compellable to give evidence for each other, but not for the defendant, as he or she would, in that case, be giving evidence against the other, which is prohibited, except in cases of personal injuries committed by one upon the other. See supra, and Note (D).

3. The defendant (the party charged) is not competent or compellable to give evidence for or against himself or herself. (S. 3).

4. Neither the husband nor wife of the defendant can give evidence on either side, except in cases of personal injuries committed by one upon the other, where the evidence of the injured party is admissible against the

other as before the Acts.

2ndly. As to Orders for Payment of Money, such as Wages to Servants and Apprentices, Bastardy Cases; also, Sureties to Keep the Peace, &c., and all other proceedings in Special and Petty Sessions, (not being Criminal proceedings, and not excepted in the 3rd Section).

1. The complainant is competent and compellable to give evidence for himself or the defendant. (S. 2).

2. The husband or wife of the complainant is likewise competent and compellable for or against each other.

3. The defendant is competent and compellable for himself or either or any of the parties to the proceedings. (S. 2).

4. The husband and wife of the defendant is likewise competent. Accomplice.-A prisoner ought not to be convicted upon the evidence

(E) The word "criminate" only protects the party from answering such questions as tend to subject him to some penalty or punishment, and does not apply where the question merely tends to fix a civil responsibility on him, (see 46 Geo. III., c. 37), as in the case of an application for an order in bastardy; for although it is an offence to beget a bastard child, and punishable in the Ecclesiastical Court, the prosecution must, by the 27 Geo. III., c. 44, s. 2, have been commenced within 8 cal. m., (from the sexual connection), and therefore the putative father would not, in many cases, be amenable, by lapse of time, to that proceeding; and according to the decision of Tenterden, C. J., in Roberts v. Allatt, (M. & M., 194), he is not excused from answering a question on that ground, the time limited for proceeding being past. The objection that the question will tend to degrade a witness is equally untenable. The doubt only exists where the questions put are not relevant to the matter in issue, but are merely propounded for the purpose of throwing a light on the witness's character; for if the transactions to which the witness is interrogated form part of the issue, he will be obliged to give evidence, however strongly it may reflect upon his character." (2 Phil. Ev., 421). See Tayl. Ev., 1136.

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of any number of accomplices, if unconfirmed or uncorroborated by ot he testimony, and such confirmation ought to consist in some circumstance affecting the identity of the accused. A guilty man can always relate the facts of the case, but it does not follow that the person accused was connected with the transaction. There is a danger that, when a man is fixed and knows that his own guilt is detected, he should endeavour to purchase impunity by falsely accusing others. (R. v. Foster, 7 C. & P., 107). And see R. v. Sparks, 1 Fost. & F., 388. But a conviction on such evidence cannot be quashed as bad in law. (R. v. Stubbs, 25 L. J. M. C., 6).

Prosecutor]-It has long been held, that a prosecutor in a criminal proceeding is a competent witness against a prisoner, and although there. were formerly exceptions to the rule, they have all now been removed by this and other statutes.

Prisoner].—In all indictable erimes or offences punishable on summary conviction, the prisoner cannot be compelled, nor is even competent, to give oral evidence cn oath for or against himself, but he still has his right to state his case before the committing Magistrate or to a Jury.

Degrading Questions].-Questions tending to degrade a witness, it seems, may be asked, but he is not bound to answer them; if he choose to answer such questions, his answer is conclusive. In the Criminal Court, Sydney, 1847, the Chief Justice, Sir A. Stephen, intimated that the three Judges had held a consultation with a view of settling the practice of the Court on this subject, and had decided, that the safer and better way would be not to allow such questions to be put; or, if put, not to be pressed upon the witness. (Suttor's A. M., 168).

VI. EXAMINATION AND CROSS-EXAMINATION.

Examination in chief]-The witness, when placed in the box, 1st, May be examined in chief by the party who calls him: 2nd, May be cross-examined by the adverse party: 3rd, Then he may be re-examined by the party who calls him.

On Examination in chief, a witness must not be asked leading questions, i.e., questions suggesting the answer to the witness; or questions in such form that the witness by answering "yes," or "no," shall give the reply and the evidence which the examiner wishes to elicit.

A witness must be asked only questions of fact, which are relevant and pertinent to the issue; and he cannot be asked irrelevant questions, or questions as to his own inferences, or personal opinion of facts.

Cross-Examination].-On cross-examination a witness may be asked leading questions. (Parkin v. Moore, 7 C. & P., 408).

The mode of examination is, in truth, regulated by the discretion of the Court, according to the disposition and temper of the witness, the Court frequently permitting an adverse witness to be cross-examined by the party calling him.

On cross-examination, a witness may be asked any question, the answer to which may tend to affect his credit; but he will not, generally, be bound to answer such questions; he may be asked questions which affect his veracity or memory, such as, whether he has ever been convicted of any

crime,-whether he is intimate with or under obligations to the party now calling him, whether he is not inimical to the opposite party, &c., &c.

General Remarks].—In examining in chief, the object of the party should be, to elicit from the witness all the material facts which he is called to prove, and to take especial care that the witness does not stand down until he has proved the part of the case he is expected to prove. Generally, it is desirable and proper to ask him only such questions as will confine him to the matter in issue, and such as will elicit his own personal and independent account of it. Unless he deviate into hearsay

or other inadmissible kinds of evidence, or unless he ramble into utterly irrelevant matter, it is advisable not to interrupt him.

If he be dishonest or hostile, a more stringent style of examination may be adopted.

In criminal cases, especially where the prisoner is undefended, it is the practice, and probably the duty, of the prosecuting party to ask a witness questions which are favorable to the prisoner; for the duty of the prosecutor is to lay all material evidence impartially before the Court, and not to obtain a conviction.

VII. WRITTEN EVIDENCE AND PRESUMPTIONS.

Written Evidence].- Convictions before Magistrates are proved by examined copies, which are made out, on application, by the Clerk of the Bench. In many cases, under particular statutes, copies certified by the proper officer are sufficient evidence.

Orders]. The original order must be produced, if possible, but secondary evidence may be given of it, if it appear that the party whose duty it is to produce it, has been served with notice to produce. (R. v. J. of Peterborough, 18 L. J. M. C., 79).

Extrinsic Evidence.]-Extrinsic evidence is inadmissible to contradict, vary, add to, or subtract from the term of a written document; but extrinsic oral evidence is admissible to prove that a written contract, not under seal, has been discharged, either before or after breach. A written instrument cannot be released or avoided by evidence of intrinsically inferior nature; e.g., a deed must be released by a deed; but, where a deed is not under seal, and is not subject to any particular statutory regulation, it is parol evidence; and therefore, generally, a written contract can be discharged by oral evidence.

Extrinsic evidence is admissible, in cases of doubt, to explain written evidence; it is admissible to interpret technical words or peculiar terms in the document, unknown to the Court; it is admissible to identify the person or thing mentioned in the instrument, and to place the Court, as near as may be, in the position of parties to it; but no evidence of the intention of the parties to the document is admissible; the Court interprets quod dixit, not quod voluit.

Presumptive Evidence].-Onus probandi lies on party asserting affirmative. The law presumes innocence; where the proof of guilt is insufficient, the prisoner must be acquitted. The law presumes, in criminal matters, that every man intends the probable consequences of an act which may be highly injurious. The law presumes that a person acting in a public capacity is duly authorized to do so. (Thus, a due appoint

ment is presumed where it becomes a question whether a person acting as a public officer was so at the time. (2 Camp., 131; 3 Id., 433). The law presumes everything to the disadvantage of a man who withholds evidence. The law presumes in favour of the continuance of life; where it is proved that the person has not been heard of for seven years, the presumption arises that he is dead; but this presumption is only in favour of the fact of his death; there is no presumption as to any specific time when the death took place.

A tenant cannot dispute his landlord's title.

Corpus Delicti].-Sir M. Hale lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will not give an account how he came by them, unless an actual felony be proved of the said goods. 2. Never to convict any person of murder or manslaughter till, at least, the body be found dead,- -on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing.

EXCISE.

See "CUSTOMS," (ante, p. 79).

EXPLOSIVE MATERIALS.

See "ARSON," (ante, p. 20), 1 Vic., c. 85, s. 5, and "GUNPOWDER," (pust).

EXTORTION.

M. at Com Law. Bail comp.-Extortion by any officer, by colour of his office.

P. Fine or impr., or both. (Arch. Cr. Pl., 644; 1 Hawk., c. 68, s. 1.; 2 Salk., 680).

N.B.-There are various other such offences, punishable by particular

statutes.

FALSE IMPRISONMENT.

See "ARREST."

M. at Com. Law. Bail comp.-False imprisonment.

P. Fine or impr., or both. (2 Inst., 589; Arch. Cr. Pl., 553).

FALSE PRETENCES.

The statutory offence of obtaining goods or money by false pretences depends upon 7 & 8 G. IV., c. 29, s. 53.

Between this offence and larceny the most intelligible distinction is this-In larceny the owner of the thing stolen has no intention to part with his property therein to the person taking it; in the former case, the owner has such intention, but the money or chattel is obtained from him by fraud. "If," says Parke, B., "a person, through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for ob taining the chattel under false pretences." (Powell v. Hoyland, 6 Ex., 70).