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Attendance of witnesses.

Production of

witnesses.

How is the attendance of witnesses procured? In both felonies and misdemeanors the witnesses examined are usually bound over by recognizance by the committing magistrate to appear at the trial and give evidence. If they do not appear, the recognizances may be estreated and the penalty levied. All other witnesses may be compelled to attend by subpœna. This may be issued either at the Crown office in London, or by the clerk of assize, or clerk of the peace at sessions. A copy of the writ is served upon the witness personally, the original writ being shewn to him.

If a written instrument, required as evidence, is in documents by the possession of some person, he is served with a subpoena duces tecum, ordering him to bring it with him to the trial. Unless he has some excuse, allowed to be valid by the court, he must produce it at the trial. Such lawful excuses are the following: that the instrument will tend to criminate the person producing it; that it is his title-deed.

Consequences of not obeying the subpana.

Attendance of a witness who is in custody.

In the event of the non-appearance of a witness in answer to a subpoena, he incurs certain penalties. If the writ has been sued out of the Crown office, the Queen's Bench, upon application, will grant an attachment for the contempt of court. In other cases the proceedings must be by way of indictment (c). But to render a witness subject to these penalties, he must have been served personally, and served a reasonable time before trial. If his expenses have not been tendered, and he is so poor as not to be able to go to the trial, this will probably be allowed by the court as a sufficient excuse.

If the witness is in custody, the proceedings are different. If in criminal custody, a secretary of

(c) v. Arch. 321

state, or any judge of the superior courts, may, on application by affidavit, issue a warrant or order under his hand for bringing up such person to be examined as a witness (d); or his attendance may be secured by a writ of habeas corpus ad testificandum. If in civil custody, a writ of hab. corp. ad test. is obtained upon motion in court or application to a judge in chambers, founded upon an affidavit stating that he is a material witness. If the evidence of a person in court is required, he is bound to give it, although he has not been subpoenaed.

arrest.

A witness, whether subpoenaed or bound over by Witnesses' recognizance, either to prosecute or give evidence, is privilege from privileged from arrest whilst attending the trial on every day of the assizes or sessions until the case is tried; also for a reasonable time before and after trial whilst coming to or returning from the place of trial.

As we have seen, preventing a witness from attending or giving evidence is a contempt of court; and intimidating a witness from giving evidence for the prosecution is a misdemeanor (e).

the prosecu

As to witnesses' expenses.-In felonies, the court may Expenses of order the payment to the prosecutor and his witnesses witnesses for of a reasonable sum for expenses, trouble, and loss of tion. time; and this whether the result of the trial be a conviction or acquittal, or no bill be found (f). And although no bill be preferred, a like reasonable sum may be ordered to be paid to those who bonâ fide attend the court in obedience to their recognizances or subpoena. The amount to be paid for the attendance before the examining magistrate must be ascertained by the certificate of the magistrate granted before the trial (g). Further, if a charge is made bonâ fide on

(d) 16 &17 Vict. c. 30, s. 9.

(e) v. p. 91.

(ƒ) 7 Geo. 4, c. 64, ss. 22, 24, 25.
(g) Ibid. s. 22.

Expenses of witnesses for the defence.

Payment of costs by the defendant.

reasonable and probable cause, although there has been no committal for trial, the magistrate before whom the accused was brought and examined may grant to any witness examined a certificate of his expenses (h).

In very many cases of misdemeanor there is a like power of ordering payment of witnesses' expenses. The particular misdemeanors will be found mentioned in 7 Geo. 4, c. 64, s. 23; 14 & 15 Vict. c. 55, ss. 2, 3; and other statutes which deal with individual offences. Each of the Criminal Consolidation Acts provides that the court before whom any indictable misdemeanor punishable under such Act, is prosecuted or tried, may allow the expenses of witnesses, as in felony; and in prosecutions by the treasury in coinage offences shall allow such expenses (i).

In a similar manner, in certain indictable offences dealt with by the magistrates in the exercise of their summary jurisdiction, the magistrate may order the payment of witnesses' expenses (k).

So much as to witnesses for the prosecution. The court has, however, also discretionary power to order the payment of the expenses of witnesses for the prisoner who appear after having been bound by recognizance by the examining magistrate to give evidence (1).

In the event of a conviction for treason or felony, the court may order the prisoner to pay the whole or part of the costs of the trial; and in cases of assault the defendant, on conviction, may be made to pay the prosecutor's costs and a reasonable allowance for loss.

(h) 29 & 30 Viet. c. 52 (a temporary statute since continued yearly). This statute applies also to misdemeanors.

(i) 24 & 25 Vict. c. 96, s. 121; c. 97, s. 77, c. 98, s. 54 ; c. 99, s. 42; c. 100, s. 77.

(k) 42 & 43 Viet. c. 49, s. 28.

(30 & 31 Vict. c. 35, s. 5.

of time (m). It will be remembered that in cases under the Vexatious Indictments Act the prosecutor may, at the discretion of the court, be required to pay the defendant's costs on the acquittal of the latter (n); and also that, in private prosecutions for the publishing of a defamatory libel, if judgment is given for the defendant, he may recover costs from the prosecutor (0),

(m) 33 & 34 Vict. c. 23, s. 3.
(n) v. p. 349.

(0) 6 & 7 Vict. c. 96, s. 8; v. p. 113.

General course

CHAPTER XVI.

THE EXAMINATION OF WITNESSES.

THIS is a subject on which, though a wide latitude is allowed to counsel, some rules may be laid down as directly authorized, others as developed in and sanctioned by practice.

We have already noticed the general course of the of examination examination of witnesses (p); namely, that the witnesses for the prosecution are first examined in chief by the counsel for the prosecution, and then crossexamined by the counsel for the defence; and after the case for the prosecution has closed, then the witnesses for the defence are examined by the counsel for the defence, and cross-examined by the counsel for the prosecution; in each case the witness being re-examined by the party calling him, if it is thought desirable. It should also be remembered that the court may at any time put such questions as it thinks fit to the witness, even after he has left the witness-box; and that if, after the counsel has finished his examination or crossexamination, he thinks of some other question which ought to have been asked, that question can be put only through or by leave of the court. Through the court, also, are asked questions which occur to the jury.

What witnesses should be called.

All the witnesses whose names are on the back of the indictment should be called by the counsel for the prosecution; and although he does not ask them any

(p) v. p. 387.

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