before justice of peace, how proved. Proof of deposition in order to examine upon it. As to the manner of taking down the evidence of the witnesses by magistrates. said, that it must be proved by the justice or coroner who took them, or the clerk that wrote them, that they were truly taken. (w) But it has been held that a deposition may be proved by any person who was present and saw it taken. The depositions in a capital case were proved to have been signed by the magistrate, but it appeared that not having any clerk he took them himself; and it being necessary to read them in evidence to contradict a witness; Parke, B., said, that in so serious a case it was very desirable that the magistrate himself should be present to prove the correctness of what he took down, although in point of law it was not absolutely necessary. (x) So where the prosecutor, being quite infirm and bedridden, and not likely ever to bear a journey to the assizes, a constable proved that he saw the magistrate take down what the prosecutor said in the presence of the prisoner, and that the deposition was all in the handwriting of the magistrate, except the cross at the bottom of it, which the constable saw the prosecutor make; and it was objected that the deposition ought not to be read without calling either the magistrate or his clerk; Coltman, J., "It is very proper, as a matter of caution, that the magistrate or his clerk should be called in all cases where it can be conveniently done, but I think it is not necessary in point of law." (y) Where it was proposed to prove the deposition of a witness in order to cross-examine her upon it, and neither the magistrate nor his clerk were at the assizes, and the witness denied her mark to the deposition; but a constable, who was present before the magistrate when the witness was examined, proved the signature of the magistrate, but was not sure that he saw the witness make her mark to it, though he recollected seeing the pen in her hand, and heard her deposition read over to her, and believed the deposition to be the same that was read over to her, and his own deposition immediately followed it; Coleridge, J., held that the deposition might be read to the witness to examine her upon it. (2) The 7 Geo. 4, c. 64, s. 2, provides that magistrates shall take "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." Consequently a magistrate is not bound by law to return all that is stated, but only all that is material to the felony. (a) However, since the passing of the Prisoners' Counsel Bill it has become of great importance that the depositions of witnesses should be as fully and accurately taken as they conveniently may be, in order that the witnesses may neither be liable to the imputation of having made a different statement in Court from what they made before the magistrate, nor of having stated facts in Court which were not mentioned before the magistrate. In a case where several witnesses were cross-examined, as to minute variances between their testimony in Court and their depositions taken before the magistrate; Parke, B., observed, "Magistrates are required by law to put down the evidence of witnesses, or so much thereof as shall be material. They have hitherto in many cases confined themselves to what they deemed material, but, in future, it will be desirable that they should be extremely careful in preparing depositions, and should make a full statement of all the witnesses say upon the matter in question, as the experience we have already had of the operation of the Prisoner's Counsel Bill, has shown us how much time is occupied in endeavouring to establish contradictions between the testimony of witnesses and their depositions, in the omission of minute circumstances in their statements made before the magistrates, as well as in other particulars." (6) Where a policeman stated a conversation between himself and a prisoner, which was material to the charge, and made against the prisoner, and stated that he had told the magistrate the same conversation, though it did not appear in the depositions; and the counsel for the prisoner complained of this as unfair, as it did not give the prisoner what the law intended it should, viz., an account of the whole evidence against him given before the magistrate; Lord Denman, C. J., said, that he thought the observation well founded, with respect to the omission in the depositions, and that the magistrate ought to have returned all that took place before him with respect to the charge, as the object of the Legislature, in granting prisoners the use of the depositions, was to enable them to know what they had to answer on their trial. (c) If the prisoner or his counsel cross-examine the witnesses when before the magistrate, the answers of the witnesses to the crossexamination ought to be taken down by the magistrate, and returned to the Judge. (d) 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." (e) And it is equally the duty of the magistrate to return the depositions of witnesses who are not bound over; as, for instance, the (b) Rex v. Thomas, 7 C. & P. 817. note. Gaselee. J., and Vaughan, B. Of the expe diency of taking and returning the examination of the prisoner's witnesses. depositions of witnesses called by the prisoner to prove an alibi. (f) 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. (g) 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 inquiry" 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 inquiry" into the party's guilt; in which case the magistrates should admit the prisoner to bail. (h) 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 depositions 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, (i) the deposition of a witness, examined on behalf of a prisoner before the magistrate, 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 magistrate; and, moreover, the taking the depositions would serve as a (f) Rex v. Fuller, 7 C. & P. 269, Vaughan, J. (g) Per Lord Denman, C. J., Reg. v. Arnold, 8 C. & P. 621. Strictly speaking, the words of the very learned Chief Justice only show that such an examination should not be returned As a deposition, and it may perhaps be going too far to infer from them that such a statement should not be returned at all. It is conceived if the examination, however irregularly taken, were signed by the witness, it might be used for the purpose of contradicting him in the same way as any other instrument signed by him. It is conceived that magis trates have no jurisdiction to administer an oath after a prisoner has been committed, and in his absence, and that it may admit of doubt whether the administering such an oath would not render a magistrate liable to indictment under the 5 & 6 Wm. 4, c. 62, s. 13. See Reg. v. Nott, 1 C. & Mars. 288, ante, p. 673. Woodcock's case, Leach, 500, and the judgment of Grose, J., in Rex v. Eriswell, 3 T. R. 707. C. S. G. (h) See the 7 Geo 4, c. 64, s. 1, ante, p.873, note (e), which shows what the duties of magistrates are in these circumstances. (i) See the reporters' note, 7 C. & P. 270. 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 the trial. (i) Depositions are also sometimes taken in criminal cases, by the Depositions consent of the prosecutor and defendant, when a material witness is upon interroabout to leave the country, or resides abroad. (j) But if the trial gatories by comes on before his departure, or after his return, the depositions cannot be read. (k) consent. Where an indictment or information is exhibited in the King's Depositions Bench, for an offence committed in India, the depositions of the in India. witnesses may be obtained under the provisions of the 13 Geo. 3, c. 63, s. 40 and s. 44. This statute enacts, that the Court may award a writ of mandamus to the Judges of the Courts in India, as the case may require, for the examination of witnesses, who are to be examined publicly in the Court, upon oath administered according to the form of their several religions; and these depositions duly taken and returned, in the form prescribed by the act, are to be allowed, and deemed as good and competent evidence, as if the witnesses had been sworn at the trial, and examined vivá voce. In the case of a prosecution for an offence committed abroad by In cases of any person employed in the public service, the depositions of wit- offences committed by nesses resident abroad may be obtained in the way pointed out by public servants the 42 Geo. 3, c. 85. (i) Among the numerous cases which have given rise to these remarks, the following may be mentioned: A prisoner was indicted for stealing a number of watches at Cheltenham; when taken before the magistrates, he produced a number of witnesses from London, and proposed to have them examined; this was refused; and upon the trial he produced the same witnesses, and their evidence, if true, proved that at the time the watches were stolen, the prisoner and the witnesses were dining at a particular house in London, keeping the wedding day of the occupier of the house; on the part of the prosecution nothing was known of the witnesses or the house, and consequently there was little means for testing their credibility; the re- (j) Rex v. Morphew, 2 M. & S. 602. (k) Tidd. 362. 2 Phill. Ev. 94. abroad. CHAPTER THE FIFTH. OF WITNESSES.-WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT COMPLICES. Privileged communications. Between client and attorney, or counsel. SECTION I. Of Privileged Communications, and other Matters which a Witness may not Disclose. A witness is to be sworn to speak the truth, the whole truth, and nothing but the truth. But this form of oath, absolute as it seems, must be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which, by the law of the land, founded on considerations of justice, and of public policy, he is forbidden to make known. Of such a nature are professional communications between a client and his attorney, solicitor, or counsel, and matters connected with the government of the country. (a) The law attaches so sacred an inviolability to communications between a client and his legal advisers, that it will neither oblige nor suffer persons so employed to reveal any facts confidentially disclosed to them at any period of time, neither after their employment has ceased by dismissal or otherwise, nor after the cause (a) It seems, however, to have once been thought necessary to vary the form of the oath on an occasion of this sort. In the case of Spark v. Middleton, 12 Vin. Abr. Ev. B. a, 4, p. 38. 1 Keb. 505, Mr. Aylott having been counsel for the defendant, desired to be excused to be sworn on the general oath as witness for the plaintiff to give the whole truth in evidence, which the Court after some dispute, granted, and that he should only reveal such things as he either knew before he was counsel, or that came to his knowledge since by other persons; and the particulars to which he was to be sworn, were particularly proposed, viz., what he knew concerning the will in question; whether he knew anything of his own knowledge. |