1905. 167 [IN THE FULL COURT.] R. v. WARTON. Criminal Law Murder Evidence, admissibility of-Statement made by deceased person in prisoner's presence-DepositionDying declaration-The Justices Act of 1886 (50 Vic., No. 14), 88. 72, 77, 104, 113. On the trial of W. on a charge of having wilfully murdered M., oral evidence of statements made by M. in W.'s presence and taken down in writing, was tendered, and objection taken. The evidence was admitted and the prisoner convicted. On a case reserved, Held, that when such evidence is tendered, it is for the Court to decide whether the surrounding circumstances are such that an inference that the prisoner, after hearing the statements, substantially admitted the truth of the whole or some part thereof, could be drawn by the jury from the silence, conduct, or demeanour of the prisoner, or from the character of any observations or explanations he thought fit to make; and that unless there is some evidence to justify such an inference, the statements should not be allowed to be given. Held, further, that the surrounding circumstances showed that the evidence objected to was properly admitted against W. When, in the opinion of the Court, there is evidence sufficient to allow the statements to be given to the jury, the weight of it and the inference to be drawn are for the jury to determine. R. v. Smith (1) approved. CROWN CASE RESERVED. The prisoner was charged with wilful murder, and was found guilty of murder at the May Criminal Sittings. He was sentenced to death, but execution was respited pending the decision of a point reserved for the decision of the Full Court. The following was the case stated by the learned Chief Justice :The prisoner was tried before me at the May Criminal Sittings in Brisbane on a charge of having wilfully murdered William Munday. It was not disputed that the prisoner shot Munday at Toowong on the evening of the 23rd March last, but no other person was present at the time. Munday died at the Brisbane Hospital on the morning of the 25th March of the wound inflicted (1) 1897, 18 Cox. C.C. 470, F. C. R. v. WARTON. by the prisoner. The latter was arrested about half-past eleven on the night of the 23rd, and was taken to the Hospital between He was taken into a a bed, who identified one and two on the morning of the 24th. A few minutes afterwards, after some consultation, Mr. Payne charged the prisoner with shooting Munday with intent to kill him. and the latter was again sworn, and gave evidence in the presence and hearing of the prisoner. This was also taken down in writing. and signed by Munday and Mr. Payne. These two statements are not identical in words. The point of difference was elicited by Mr. Power, of counsel, who defended the prisoner. At the trial Inspector White deposed that he was able, by looking at the first statement, to refresh his memory as to what took place at the time and to repeat what was said by himself, by Munday, and by the prisoner. Mr. Power objected, on the grounds that the statement having been reduced to writing and signed by Munday. oral evidence of its contents could not be given, and further that the statement, though made in the prisoner's presence, was not for that reason admissible against him, because it was taken with formalities which rendered inapplicable the operation of the rule that statements made in the presence of a party are admissible in evidence against him. He referred to Phipson on Evidence. Ch. XXI., Child v. Grace (1), R. v. Turner (2), R. v. Mitchell (3). I overruled the objections. He then asked leave to cross-examine the witness as to the later statement made by Munday, and I permitted him to do so. Inspector White, being cross-examined, then said that Munday made two statements, the second of which was on oath after the (1) 1825, 2 C. & P. 193. (2) 1832, 1 Moody C.C. 347. (3) 1892, 17 Cox. C. C. 503. 1905. prisoner was formally charged with unlawfully shooting William Munday with intent to kill him. He said that he took it down in writing, that he had compared the two statements, which differed very slightly, but were in the main exactly the same. Mr. Power then took the further objection that as the two statements differed, the later one superseded the earlier. I compared the two written statements, but thought the discrepancy of no importance. I overruled the objection, and admitted Inspector White's account of what took place in respect of the first statement. The second statement was afterwards tendered in evidence by the prosecution, was objected to by Mr. Power, and, not being pressed, was rejected. On the application of prisoner's counsel I reserved for the consideration of the Full Court the question whether the evidence objected to was properly admitted. The prisoner was found guilty of murder, and sentenced to death. I respited execution of the sentence pending the judgment of the Full Court on the question reserved. A copy of my notes appended to this case. The question for the consideration of the Court is Was the evidence objected to properly admitted? Power, for the prisoner: If the evidence objected to was admissible at all it was admissible only in one of three ways- as a dying declaration, as a deposition under the Justices Act, or as a statement made in the prisoner's presence. As a statement it was inadmissible, for the circumstances under which it was made were such that a reply could not be expected from the prisoner, because the formalities precluded him from answering. It was a statement formally made in the presence of the prisoner. He could not interject, no reply could be expected, and no inference could be drawn from his demeanour or silence. The prisoner was compelled to remain silent, for the taking of the evidence was in the nature of a judicial proceeding. The Justices Act of 1886, 88. 72, 77, 104, 113. If the evidence was admitted as a statement the learned Judge should have at least told the jury that, owing to the circumstances, there was no evidence of such conduct on the prisoner's part as would make it admissible against him. Phipson L F. C. 169 R. v. WARTON 170 F. C. R. v. WARTON. ST. R. QD. on Evidence, 5th Ed., ch. XXI., Roscoe on Criminal Evidence, p. 48, R. v. Smith (1), R. v. Stevens (2), R. v. Welsh (3), R. v. Mitchell (4), R. v. Mann (5), R. v. Appleby (6), R. v. Swinnerton (7), Taylor on Evidence, 9th Ed., pp. 527, 528. [REAL J. You must go so far as to contend that if a statement is made before Justices on oath in the presence of the prisoner, that statement cannot be put in at the trial as a statement.] Yes. The formalities required by ss. 72, 77, 104, 113 of The Justices Act of 1886, take it out of the category of a statement made in a prisoner's presence. They distinguish the present case from R. v. Smith (1). If this evidence was properly admitted as a statement made in the prisoner's presence, it would be equally admissible if the charge had been shooting with intent, and Munday had not died. The circumstances prevented the prisoner from indicating anything by his conduct. [REAL J. He had a right to cross-examine.] The opportunity for so doing is an excellent reason for admitting the evidence as a deposition, but an excellent reason for rejecting it as a statement. For he is bound to maintain silence until the time for cross-examination arrives. In R. v. Mann (8), the deposition was not put in because it was irregular; moreover, that case is dissented from in R. v. Mitchell (9), which is like the present case; R: v. Fearshire (10), R. v. Dillon (11), R. v. Wylde (12), Macdonnell v. Evans (13), R. v. Hollis (14), R. v. Wallace (15), R. v. Radbourne (16). : [REAL J. The prisoner afterwards admitted that he shot the deceased.] We are not concerned with that. [REAL J. I think we are; for when it was admitted that he was at the scene of the crime it was some evidence that the deceased's account of the circumstances was not inaccurate. Could the Judge say that that was not some evidence which the jury might (1) 1897, 18 Cox C.C. 470. (10) 1779, 1 Leach 202. (12) 1834, 6 C. & P. 380. (13) 1852, 11 C.B. 930. (14) Sydney Morning Herald, 27th May, 1905. (15) 1898, 19 N.S.W.L.R. 155. (16) 1787, 1 Leach 457. 1905. take into consideration-that is, by abstaining from asking any questions on the point, he, at least, admitted his presence at the scene of the tragedy. The evidence is pertinent at least to the question of the identification of the prisoner.] If the first deposition was properly taken under the Justices Act, no inference can be drawn from the silence or non-denial by the prisoner to any charge made by the first or any witness, for he is entitled to make a statement only after the examination of all the witnesses (s. 104). If it was not properly taken, it could not be used for any purpose, otherwise s. 111 of the Justices Act would be inoperative. As far as was shown it was probably in form, but if it was informal as being taken before one justice only (ss. 77 and 104), and because no formal charge was made, the second deposition was the only evidence admissible, but was not put in evidence. O'Donnell v. Chambers (1), Reg. v. Hughes (2). The fact that the prisoner cross-examined the deceased may make the deposition admissible as a deposition, but it was not put in as such. As a deposition it would have been the best evidence, and should have been produced. The statutory deposition of a witness is not only the best, but the only proof of what he stated. Leach v. Simpson (3), quoted in R. v. Coll (4), R. v. Bond (5), R. v. Walter (6), R. v. Gay (7). Russell on Crimes, Vol. III., p. 362. Secondary evidence could not be given, for it was not shown that the depositions were inadmissible or could not be produced, and the statute requires evidence so taken to be reduced into writing, and when reduced into writing the earlier communication is superseded, and no parol evidence can be given. If verbal evidence of the deceased's statement were admissible, all the evidence taken in the Police Court proceedings would be admissible in the same way. But it is not, for it is taken in a formal way, and the prisoner is restrained from interfering, interjecting, or commenting. In none of the cases cited is it suggested that if the oral evidence corresponds with the depositions the former can be given, or that a witness can refresh his memory, in giving (1) 1905 V.L. R. 43. (3) 1839, 5 M. & W. 309. (4) 1889, 24 L.R. (Ir.) 522. (5) 1850, 4 Cox C.C. 231. (7) 1835, 7 C. & P. 230. F. C. 171 R. v. WARTON |