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Criminal Law (Evidence) Amendment Bill—Bill 61

Volume 229: debated on Wednesday 24 May 1876

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( Mr. Ashley, Mr. George Clive.)

Second Reading

Order for Second Reading read.

, in moving that the Bill be now read the second time, said, that he took for his motto on this occasion the words of Bentham—."Innocence claims the right of speaking, as guilt invokes the privilege of silence." Although, no doubt, the effect of the change in the law of evidence which he asked the House to make would be to secure more certain conviction of the guilty, it was not on that ground that he based his appeal, but on the right that every innocent person had to state his own case and tell his own story under all the sanctions which law and custom made necessary, if the Court and jury were to pay proper attention to the statements—namely, under oath and subject to cross-examination. There were four classes of persons now excluded from the witness-box:—1. Prisoners on their own behalf. 2. Wives or husbands of such. 3. Co-prisoners. 4. Wives or husbands of such co-prisoners. The Bill which he asked the House to read a second time would make all these persons competent witnesses if they chose to offer themselves, on the same footing as any other witnesses, but there was no provision to compel any prisoner to give evidence. As to the history of the present law, he would only say that no express authority could be found either in text books or the statutes for the proposition that it was illegal to examine a prisoner. The modern practice was not older than the Revolution. Between the time of the abolition of the Star Chamber and the year 1680 such men as Scroggs and Jeffrey had disgraced the bench, and by their infamous brow-beating of prisoners had brought about a system of protection to the accused, which was secured by enforcing his silence. Also, during the 18th century, the private litigation theory had gained ground, and the rules of evidence had been crystallized into a technical form, one element of which was that interested as well as tainted evidence was worthless. Hence, criminals and those who had to gain anything by the verdict were excluded from the witness box. In 1843 an Act was passed to remedy this, and after saying in the Preamble that the inquiry after truth in Courts of Justice was often obstructed by incapacities created by the law, it enacted that—

"No person hereafter shall be excluded by reason of incapacity from crime or interest in any proceeding civil or criminal."
But it proceeded to except the parties themselves. In 1851 an Act was passed repealing the above exception, but repeating the exception as to criminal cases and adultery. So timorous were the steps which marked any advance in such matters in England! But the results of those amendments in the law had been most beneficial, and the only source of wonder now was how, under the old system, the truth could ever have been elicited. Lord Brougham, in 1858, 1859, 1860, three times ineffectually tried to pass Bills to admit the evidence of prisoners; but although hitherto direct and general legislation had been refused, indirectly and by special exceptions, great inroads had been made upon the existing system. He (Mr. Ashley) would only cite to the House the Master and Servant Act (1867), the Naval Courts Martial Act, the Merchant Shipping Acts, both this year and last, the Licensing Act, 1872, the Conspiracy Act, 1875, in all of which the parties charged with offences under these several Acts were to be competent witnesses in their own behalf. In Bankruptcy the person charged was not only competent, but in some cases compellable to answer. In the Divorce Court respondents and co-respondents were now admitted, and these proceedings were of a quasi-penal character. Then, to go out of England. The Indian New Code and Evidence Act, 1872, admitted the examination of prisoners; the New Zealand statute of 1875 had admitted prisoners to the witness-box in summary proceedings, and in some of the United States of America, where the English Common Law prevailed, the system had been adopted with complete success. He would read to the House some of the answers which he had received from the judicial officers of places in America where it was in force, and the House would hear how satisfied they were with the working of the new law of evidence in criminal cases. There were many cases where the prisoner or his wife were the only persons who could tell the true story. How hard was the position of a man who was in bed at the time of the commission of the crime imputed to him, and yet could not call his wife to prove an alibi. What he might call the "leading case" on this branch of the subject was that of the Rev. Mr. Hatch, who was convicted of an indecent assault on a girl, and when in penal servitude prosecuted the girl for perjury. Being able to call his wife as a witness on this prosecution he proved his innocence. So in cases of assault and embezzlement, the prisoner was often the only person who could state the circumstances. He must not omit to say that there were two Amendments to the Bill which he should propose if it went into Committee—first, that neither the prosecutor nor the Court should make any remarks upon the absence of the prisoner from the box, if he declined to avail himself of his right. This provision he found in the American statutes, and it was certainly a fair and just enactment. Secondly, that no prisoner should be cross-examined as to any previous convictions, or as to his previous character. If this was not provided it might bear hardly upon a prisoner, and also an innocent man might be deterred from offering himself as a witness because of some former fault of which he had been guilty. And it being now a quarter of an hour before Six of the clock, the further Proceeding on Second Reading stood adjourned till To-morrow.