Evidence amendment (1871) (WA)

WESTERN AUSTRALIA

ANNO TRIGESIMO QUARTO

ArICTORT7E E,EGINiE

No. 5

An Act to amend the Law of Evidence and Practice on

Criminal Trials. [Assented to 2nd January, 1871.

HEREAS it is expedient that the law of evidence and practice

on trials for felony, misdemeanour and other proceedings in

W

Courts of Criminal Judicature should be more nearly assimilated to

31 VICTORI/E. No. 5

Evidence

that on trials in civil actions Be it enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows :-

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

section 2 of this for felony or misdemeanour which shall be commenced after the passing

Act to apply to

all criminal of this Act, and the provisions of sections 3 to 8 inclusive of this Act

trials, aud sec- shall apply to all Courts of Judicature as well criminal as all others,	tions 3 to B to all
courts of
Judicature, &T. hear, receive and examine evidence. and to all persons having by law or by consent of parties authority to
Summing up of 2. If any prisoner or prisoners, defendant or defendants, shall be of felony andevidence in cases defended by counsel, but not otherwise, it shall be the duty of the
misdemeanour presiding Judge, at the close of the case for the prosecution, to ask the

counsel for each prisoner or defendant so defended by counsel, 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 summing up the evidence against such prisoner or prisoners or defendant or defendants ; and upon every trial for felony or misdemeanour, 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 should think fit, to open his or their case or cases respectively ; and after the conclusion of such opening, or of all such openings (if more than one), such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses 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, save as hereby altered, shall be as at present.

Row far witness 3. A party producing a witness shall not be allowed to impeach

may be dis-	credited by the his credit by general evidence of bad character ; but he may, in case the
party producing witness shall in the opinion of the Judge prove adverse, contradict

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

As to proof of 4. If a witness, upon cross-examination as to a former statement

contradictory made by him relative to the subject-matter of the indictment, infor-

statements of

adverse witness /nation or proceeding, and inconsistent with his present testimony,

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

Cross-maul/3a-	5. A witness may be cross-examined as to previous statements
P

th as t made by him in writing, or reduced into writing, relative to the subject-

reus vious o te- s ta

ments in writing matter of the indictment, information or proceeding, without such

writing being shown to him ; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writings which are to

34 VICTORLE. No. 5

Evidence

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 trial as he may think fit.

6. A witness may be questioned as to whether he has been con- victed of any felony or misdemeanour, and upon being so questioned,

Proof of previous

conviction of

witness may be

if he either denies or does not admit the fact, or refuses to answer, it

given

shall be lawful for the cross-examining party to prove such conviction ; and a certificate containing the substance and effect only (omitting the formal part) of the indictment or information and conviction for such offence, purporting to be signed by the Clerk of the Court or other officer having the :custody of the records of the Court where the offender was convicted, or by the deputy of such clerk or officer (for which certificate a fee of five shillings, and no more, shall be demanded or taken), shall, upon proof of the identity of the person, be suffi- cient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same.

7. It shall not be necessary to prove by the subscribing witness AstZti proof by t

any instrument to the validity of which attestation is not requisite, and awa fl	ejs
witness thereto.

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

the satisfaction of the Judge to be genuine, shall be permitted to be lolfAI:gunted 8. Comparison of a disputed writing with any writing proved to As to comparison

made by witnesses ; and such writings and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evi- dence of the genuineness or otherwise of the writing in dispute.

9. The word ' counsel ' in this Act shall be construed to apply to cCounseP

attorneys in all cases where attorneys are allowed by law or by the

practice of any Court to appear as advocates.

FREDIC. A. WELD,

GOVERNOR AND COMMANDER-IN-CHIEF.