"It is the duty of the Magistrate to return all the depositions taken before him, whether for the prosecution, or on the part of the prisoner, and not merely the depositions of those whom he thinks proper to bind over as witnesses. Per Vaughan, J., Fuller's case, 7 C. & P. 269." § 518. A deposition might always be used to contradict a witness and now by Act II of 1855, Sec. XXXI. it may be used to corroborate him. § 519. That a deposition may be used by the prisoner to contradict a witness has alway been held clear law, whether it is equally admissible on the part of the prosecution has been the subject of doubt. The leading case is Oldroyd's case,(o) on which subject the following passage from Russell on Crimes may be studied:-(p) "One of the objects of passing these Statutes was to enable the Judge and jury before whom the prisoner is tried, to see whether the evidence of the witnesses at the trial is consistent with the account given by them before the committing Magistrate; and therefore an information, when judicially and regularly taken, may be used on the part of the prisoner, when the informant gives his evidence at the trial, to contradict his testimony. Thus it was admitted in Lord Stafford's case, that the deposition of a witness, taken before a Justice of the Peace, might be read at the desire of the prisoner in order to take off the credit of the witness, by showing a variance between the deposition and the evidence given in Court vivâ voce. And not only on the part of the prisoner, but of the Crown, depositions may be so used, even for the purpose of impeaching the credit of a witness called for the prosecution. Thus in Oldroyd's case, where the counsel for the Crown, by the direction of the Judge, unwillingly called the prisoner's mother (her name being on the back of the indictment, as having been examined by the grand jury) and her evidence was in favor of the prisoner, Graham, B., ordered her deposition before the Coroner to be read, for the purpose of affecting the credit of her testimony by showing its variance from the deposition. And th twelve judges held, that it was competent for the Judge to do so: and Lord Ellenborough, C. J., and Mansfield, C. J., thought the prosecutor also had the same right." § 520. The death, absence, or sickness of the witness must be satisfactorily proved at the trial before his deposition can be used. In case of search, the search must have been diligent and recent. (o) Russ. and Ry, C, C. R. 88, § 521. The deposition must itself be produced at the trial, see the case of Shesha Sheli and Madena Bee v. Timma Barradu and Madake, Arbuthnot's Select Cases, p. 29. "The prisoners in this case were charged with the murder of two persons whose bodies were not found, and were convicted, the 1st and 2nd prisoners as principals, upon their confessions before the Criminal Court,corroborated by their delivery of clothes, which were identified as belonging to the deceased, and by evidence that the deceased were last seen in their company. "The 3rd prisoner was convicted as an accessory, upon his confession that he was present when the murder took place, corroborated by the circumstantial evidence above adverted to. "The Court of Foujdaree Udalut ruled in this case that a deposition give before a Subordinate Criminal Court by a witness who has died previous to the trial before the Court of Circuit, in order to become legal evidence, must be read and proved at the trial, as having been given by the person whose deposition it purported to be, in the presence of the prisoners, proof being likewise adduced of the death of the deponent. "The Court also ruled that confession made by prisoners before a Police Officer must be read in Court and proved at the trial in order to render them valid as evidence against the accused." See also Russell on Crimes, vol. 2, p. 899. : "It is the duty of Magistrates to return to the Court at which the prisoner is to be tried, all depositions that have been taken at all the examinations that have taken place respecting the offence which is to be the subject of the trial. Where a witness was examined before a Magistrate several times at the first examination, no person was specifically charged with the offence, but what was said was taken down in writing; and this witness was taken into custody, and while in custody as an accused person, he made another statement, which was also taken down by the same Magistrate; and on a subsequent day, the present prisoner having been apprehended, the witness was again examined as a witness; Alderson, B., observed, 'I have none of these depositions but the last. Every one of them ought to have been returned to me, as it is of the last importance that the Judge should have every deposition that has been made, that he may see whether or not the witnesses have at different times varied their statements, and if they have to what extent they have done so. Magistrates ought to return to the Judge all the depositions that have been made at all the examinations that have taken place respecting the offence which is to be the subject of the trial.' "And it is equally the duty of the Magistracy to return the depositions of witnesses who are not bound over; as, for instance, the depositions of witnesses called by the prisoner to prove an alibi. But if the deposition of a witness has been taken after the prisoner has been committed, and in his absence, such examination ought not to be returned as one of the depositions, for nothing should be returned as a deposition against a prisoner, unless the prisoner had an opportunity of knowing what was said, and an opportunity of cross-examining the person making the deposition. "It is highly expedient to the furtherance of the ends of justice, that whenever prisoners offer to produce witnesses before the Magistrate, in answer to the charge made against them, such witnesses should be regularly examined on oath, and their statements taken down in writing, and returned with the depositions. Whether the evidence so adduced be true or false, it is very important that it should be received and taken down. If it be true, it may be so clear, positive and distinct as to explain or contradict the evidence adduced in support of the charge, in such a manner as completely to satisfy the Magistrates that there is no sufficient ground for judicial enquiry' into the guilt of the party charged; in which case he ought to be discharged; or the evidence 'adduced on behalf of the party charged' may, in the opinion of the Magistrates, 'weaken the presumption' of the party's guilt, but there may 'notwithstanding appear to them to be sufficient ground for judicial enquiry,' into the party's guilt; in which case the Magistrates should admit the prisoner to bail. And even if the evidence so adduced should not produce either of these results, still it is important for the sake of the prisoner, that his witnesses should be examined, and their deposition returned, as he is thereby freed from the suggestion often made at the trial, that the case endeavoured to be proved before the jury has been concocted since the examination before the Magistrate; and if, as has been suggested, the deposition of a witness, examined on behalf of a prisoner before the Magistrates, would be admissible in evidence for the prisoner on his trial, in case of the death of such witness, it is but reasonable that the prisoner should have the depositions of his witnesses taken, in order to be used in case of such an event. On the other hand, if the evidence adduced be false, it is essential for the ends of justice that it should be heard and taken down, in order that the prosecutor may have the means before the trial of investigating the facts deposed to, and the opportunity of testing the statements of the witnesses, by comparing those made on the trial with those made before the Magistrates; and, moreover, the taking the depositions would serve as a check upon the prisoner, against setting up a different defence on the trial, and upon the witnesses against improving their tale between the time of their examination before the Magistrate and trial." § 522. Before the deposition can be read, it must be proved, which is usually done by calling the Magistrate or his clerk before whom it was taken; where it is taken in a language not that of the prisoner, it should also be shown that it was interpreted to him; and for this purpose it is necessary to call the interpreter. § 523. A deposition is admissible on the trial of the party against whom it was taken, for an offence different from that on the accusation of which it was taken. Thus in Smith's case(9) depositions taken on accusation of assault, were used against the prisoner on his trial for murder. § 524. If the deposition be reduced to writing, parol testimony is inadmissible to vary it. The law requires the deposition to be in writing, and it is to be presumed that the Magistrate has done his duty. CHAPTER XXVIII. EXAMINATIONS. § 525. The Criminal Procedure Code has the following provisions respecting the examination of parties accused : By Sec. 202. "It shall be in the discretion of the Magistrate, from time to time, at any stage of the enquiry, to examine the accused person and to put such questions to him as he may consider necessary. It shall be in the option of the accused person to answer such questions." By Sec. 203. "No influence, by means of any promise or threat or otherwise, shall be used to the accused person to induce him to disclose or withhold any matter within his knowledge;but if the accused person shall, of his own accord, propose to confess the commission by him of the offence of which he is accused, the Magistrate shall require him to give an account of the facts and circumstances in detail, and shall examine him thereupon in the same manner as if he were a witness." By Sec. 204. "No oath or affirmation shall be administered to the accused person." (q) Russ. and Ry. p. 339. By Sec. 336 (ante, p. 181) the accused at the trial may admit the truth of the charge. § 525a. Statute 7, Geo. 4, c. 64, s. 2, provides the law in England : "That the two Justices of the Peace, before they shall admit to bail, and the Justice or Justices before he or they shall commit to prison any person arrested for felony, or on suspicion of felony, that shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as · shall be material, into writing, and the two Justices shall certify such bailment in writing." Sec. 2 provides for charges of misdemeanor. § 526. The proper time for taking the examination of the prisoner is at the conclusion of the deposition; though the Criminal Procedure Act, Sec. 202, empowers the Magistrate to examine at any time during the proceeding. And note the difference between the examination, which is compulsory on the part of the Magistrate; and confession, already considered, which is voluntary on the part of the prisoner; concerning which the English law, as already explained, gives him caution. § 527. A prisoner may decline to answer: and it is not correct for a Magistrate to seek to get facts out of a prisoner by a strict examination; but he should examine him to elucidate any portion of a statement which he may make. The leading case on this point is Arnold's case,(r) where Lord Denman said : "A prisoner is not to be entrapped into making any statement, but when a prisoner is wiling to make a statement, it is the duty of Magistrates to receive it; but Magistrates before they do so ought entirely to get rid of any impression that may have before been on the prisoner's mind, that the statement may be used for his own benefit: and the prisoner ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial." § 528. A Magistrate should be very cautious to use the prisoner's own words, for reasons too obvious to dwell upon. A turn of a phrase may very much alter his testimony. There is a distinction. too to be observed between the Criminal Procedure Code (Sec. 205) and the English Act. By the latter, the Magistrate is only to reduce so much as may be material to writing, which leaves him a certain discretion but the Code is imperative to record the whole examination, question and answer, in full.* |