Criminal Procedure Act 1866 (SA)

ANNO TRICESIMO

No. 13.

An Act for amending the Law of Evider~ce and Practice on Criminal 15 -

Trials. I I .-

[Assented to, l l th January, 1867.1

HEREAS it is expedient that the Law of Evidence and Prac- Pr~amble.

W tice on trials for felony and rnisdemeanor and other proceed-	ings in Courts of Criminal Judicature should be more nearly
assimilated to that on trials of causes at the Civil Sitting3 of the Supreme Court-Be it therefore Enacted, by the Governor- in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

1. The provisions of section 2 of this Act shall apply to every Provisions of sectiontr

trial for felony or misdemeanor which shall be com~nenced on trials eommenoe~ of this Act to ap ly to

or after the first day of January, one thousand eight hundred and or after e ~ t day of

sixty+seven, and that the provisions of sections from three to ten January, 1867.

inclusive of this Act shall apply to u c u r t s of judicature, as well criminal as all others, and to all persons having, by law or by consent of parties, authority to hear, receive, and examine evidence.

2. If any prisoner or prisoners, defendant or defendants, shall be Bumming up of evi- denco in cases of

defended by counsel, but not otherwise, it shall be the duty of the felony	mide.
presiding Judge, at the close of the case for the prosecution, to ask meanor.
the counsel for each prisoner or defendant so defended by counsel	+C 1
whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case for the purpose of

2 I summing

- 30" VWTORIB, No. 13.

Criminal Procedure Amendment Act.-1866-7.

summing up the evidence against such prisoner or prisoners, or defendant or defendants; and upon every trial for felony or misde- meanor, whether the prisoners or defendants, or any of them, shall be defended by counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respec- tively, and after the conclusion of such opening, or of all such open- ings if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such wit- nesses as he or they may think fit, and, when all the evidence is concluded, to sum up the evidence respectively, and the right of reply, and practice and course of proceedings shall be the same as on the trial of a cause at the Civil Sittings of the Supreme Court; but no right of reply shall in any case be allowed to the counsel appearing for the Crown or conducting the prosecution, unless the prisoner or prisoners, or some of them shall cnU evidence.

H o w f ~ w i ~ e s s m a ~ 3. A party producing a witness shall not be allowed to impeach	be discredited by the
p t y pp'Odnciog, his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contra- dict him by other evidence, or, by leave of the Judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed st5tement sufficient to designate the particular occasion must be mentioned to the witness, and he niust be asked whether or not he has made such statement.
Aa c
dicting statement8 of

proof of conha- 4. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or pro- ceeding, and inconsistent with his present testimony, does not dis- tinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement sufficient to designate the

adverse witness.

particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.

Cross-examinationaras 5. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the sub- ject-matter of the indictment or proceeding without such writing being shown to him; but if it is intended to contradict such wit- ness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the Judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the t r id as he may think fit.

to previous state-

,

Proof of previoua

conviction of witnees 6. A witness may be questioned as to whether he has been con-

may ba given.	victed of any felony or misdemeanor, and upon being so questioned.
if he either denies or does not admit the fact, or refuses to answr,
-

30"ICTORIB, No. 13. l 1 3

Criminal Procedure Amendment Act.1866-7.

it shall be lawful for the cross-examining party to prove swh con-

viction, and a certificate, containing the substance and effect only

(omitting the formal part) of the indictment and conviction for such

offence, purporting to be signcd by the clerk of the Court or other

officer having the custody of the records of the Court where the	e
offender was convicted, or by the deputy of such clerk or officer shall, upon proof of identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same.

7. I t shall not be necessary to prove by the attesting witness any As t o proof by attest*

instrument to the validity of which attestation is not requisite, and ing witnesses,

such instrument may be proved as if there had been no attesting

witness thereto.

8. Comparison of a disputed writing with any writing proved to Aa to comparisonot

the satisfaction of the Judge to be genuine shall be permitted to be &puhd writing.

made by witnesses; and such writings, and the evidence of wit- %

nesses respecting the same, may be submitted to the Court	6 '
as evidence of the genuineness or otherwise-of the writing in

9. If any person called as a witness in an Court in

Province, or required or dcsiring to make an a -4 davit or deposition to be sworn to motives be PCC-

in the course of any in any such Court, shall refuse or mitted to make n solemn affirmation or

be unwilling, from alleged conscientious motives, to be S , - it dedarationian.

shall be lawful for the Court, or Judge, or other presiding officer or ; 3 -

person qualified to take affidavits or depositions, upon being satisfied ' hbL-ep5 of the sincerity of such objection, to permit such person, instead of I.

being sworn, to make his or her solemn affirmation or declaration in C ' P C, ~

P

the words following, that is to say-

.d

c c I, A. B., do solemnly, sincerely, and truly affirm - and declare - +

-f C A - + -

that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly

affirm a s declare," &c.

Which solemn affirmation and declaration.shal1 be of the same force

and effect as if such prson%d taken an oath in the usual form.

10. If any person making such solemn affirmation pr declaration Pmiahment for

shall wilfully, falsely, and corruptly affirm a declare any matter or	fdse
thing which, if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties as by the laws and statutes
in force within this Province, are or may be enacted or provided
against persons convicted of wilful and corrupt perjury.

B '

In the name and on behalf of the Queen, I hereby msent to

this Act,

D. DALY,