Ch. V. Of im

102. Sentences of imprisonment exceeding twelve months, wherever passed, are also (subject to the proviso mentioned in prisonment. para. 104) to be executed in the United Kingdom. If not brought to the United Kingdom, a prisoner has to undergo his imprisonment either in military custody, or in some authorised prison, or in a detention barrack (a). He can, however, be temporarily confined in any other prison.

Of detention.

103. Sentences of detention exceeding twelve months must (subject to the proviso mentioned in para. 104) also be executed in the United Kingdom. Detention has to be undergone either in military custody, or in a detention barrack, but a soldier sentenced to detention cannot be confined in a prison. In the United Kingdom sentences of detention may be undergone in a branch detention barrack, or barrack detention rooms; but where they exceed fourteen days, should be carried out in a detention barrack (b). Further 104. An offender sentenced to penal servitude, imprisonment, or detention, need not be brought to the United Kingdom, if he belongs to a class with respect to which the Secretary of State has declared that by reason of climate or place of birth or of enlistment, it is not beneficial to the offender to transfer him to the United Kingdom. Nor need an offender sentenced to imprisonment or detention be brought to the United Kingdom, if the court or other authority mentioned in s. 131 for special reasons otherwise orders (c).

provisions.

(a) Army Act, ss. 63-66. K.R., paras. 607, 645, and see for the mode in which al term of imprisonment is to be awarded, K.R., para. 585, and generally as to disposal of military convicts, military prisoners, and soldiers undergoing detention, &c., K.R., paras. 600-644.

(b) Army Act, s. 63; and K.R. para. 645.

(c) Army Act, s. 131 (2), the note to which states the regulations made by the Secretary of State.

CHAPTER VI.

EVIDENCE.

Introductory.

"Rules of

1. The rules of evidence are the rules which regulate the mode Meaning of in which questions of fact may be determined for judicial purposes. Evidence. The object of every criminal trial is, or may be, to determine two classes of questions-questions of fact and questions of law. If the accused person pleads guilty, there is no question of fact involved in the trial; but if he does not, he raises two questions or issues: first, whether the facts charged against him happened; and next, if they did happen, what is their legal consequence.

rules of

to trial by

2. In trial by jury, these two questions are answered by English different persons. The jury, under the guidance of the judge, find evidence the facts. The judge lays down the law. It was with reference primarily to trial by jury that the English rules of evidence were originally applicable framed, and it is to this mode of trial that they are still primarily jury. applicable. They are, in fact, the rules in accordance with which a judge guides a jury. In trials before courts-martial, the members of the courts both find the facts and lay down the law, and thus perform the functions of both jury and judge. It therefore becomes their duty, when applying their minds to questions of fact, in the capacity of jurymen, to consider themselves bound by the rules which, in the case of an ordinary trial by jury, are laid down by the judge.

evidence.

3. Now, a juryman is supposed to bring with him to the con- Nature of sideration of the questions which he has to try common sense, and a general knowledge of human nature and of the ways of the world. But he is not supposed to bring with him any special knowledge enabling him to answer the particular questions of fact raised in the trial. His knowledge of these matters is derived from what is proved to him at the hearing. The means of proof, or evidence, usually consists of statements made by witnesses under examination, or of documents produced for inspection, and is therefore commonly classified as being either oral evidence or documentary evidence. But the jury, or, in the case of trials by court-martial the members of the court, may supplement by direct information the knowledge derived from these sources. Thus they may inspect for themselves anything sufficiently identified by evidence, and produced in court as material to their decision; or they may go to view any place the sight of which may help them to understand the evidence.

Difference

inquiries.

4. There is no difference in principle between the method of between inquiry in judicial and in extra-judicial proceedings. In either judicial and case a person who wishes to find out whether a particular event non-judicial did or did not happen tries, in the first place, to obtain information from persons who were present and saw what happened (direct evidence), and, failing that, to obtain information from persons who can tell him about facts from which he can draw an inference as to whether the event did or did not happen (indirect evidence). But

Ch. VI. in judicial inquiries the information given must be on oath, and be liable to be tested by cross-examination, and there are certain rules of law which exclude from the consideration of a jury particular classes of indirect evidence which an ordinary inquirer would naturally take into consideration. Statements so excluded are said to be "not admissible as evidence," or "not evidence" (a). And if a member of a court-martial is in doubt whether a statement which it is proposed to make to him is, or is not, admissible as evidence, the most useful advice that can be given to him is, first to use his common sense as to whether the matter proposed to be proved has any practical bearing on the question which he has to try, and, if he thinks that it has, then to consider whether it falls within any one of the negative or exclusive rules of law to which reference has been made.

Reasons for

certain

5. The answer to the question why particular statements should excluding be excluded from evidence in judicial inquiries is that their exclusion has been found by practical experience useful on various grounds, and notably on the following :

classes of

evidence in

judicial

inquiry.

Evidence in

martial to

1. It assists the jury.

2. It secures fair play to the accused.

3. It protects absent persons.

4. It prevents waste of time.

It assists the jury by concentrating their attention on the questions immediately before them, and preventing them from being distracted or bewildered by facts which either have no bearing on the questions before them, or have so remote a bearing on those questions as to be practically useless as guides to the truth, and from being misled by statements, the effect of which, through the prejudice which they excite, is out of ali proportion to their true weight. It secures fair play to the accused, because he comes to the trial prepared to meet a specific charge, and ought not to be suddenly confronted by statements which he had no reason to expect would be made against him. It protects absent persons against statements affecting their characters. And, lastly, it prevents the infinite waste of time which would ensue if the discussion of a question of fact in a court were allowed to branch out into all the subjects with which that fact is more or less connected.

6. The rules of evidence to be followed by courts-martial are to courts- be those adopted in courts of ordinary criminal jurisdiction in be governed England (b). These rules are to be found in the ordinary textby English books on the subject, such as Taylor on Evidence, Roscoe's Digest

law.

Matters

of the Law of Evidence in Criminal Cases, Stephen's Digest of the Law of Evidence, and Wills' Theory and Practice of the Law of Evidence; but as only a limited number of these rules are from the nature of the case applicable to proceedings before courtsmartial, it is thought that it may be useful to state and illustrate shortly the most important of those which are so applicable.

7. The principal matters with which the rules of evidence are with which concerned may, for the purpose of this chapter, be classified

rules of

evidence

are concerned.

as follows:

(i.) What must be proved.

(ii.) What facts are assumed to be known (judicial notice).

(a) The two phrases illustrate the wider and narrower sense of the term “evidence.” In its narrower sense it means that kind of evidence which is recognised by courts of law.

(b) Army Act, ss. 127 and 128; Criminal Evidence Act, 1898 (61 & 62 Vict., c. 36); and Rule 73.

(iii.) By which side proof must be given (burden of proof).
(iv.) What statements are admissible as evidence (admissibility
of evidence).

(v.) When admissions or confessions may be admitted as
evidence.

(vi.) Who may give evidence (competency of witnesses).

(vii.) What questions need not be answered and what documents need not be produced (privilege of witnesses).

(viii.) How evidence is to be given.

(i.) What must be proved.

Ch. VI,

must be

8. What must be proved, in order to obtain a conviction, is the Charge particular charge brought As a general rule, every charge alleges, brought or ought to allege, a specific offence constituting a breach of a proved. specific enactment (a); and, subject to certain exceptions, it is of this offence, and of this offence alone, that the person charged can be convicted. The reason for the rule is the unfairness of requiring a person to meet a charge for which he is not prepared. And the exceptions will be found not to conflict with this reason, since they relate either to cases where the distinction between two offences is mainly technical; or to cases where the distinction is one of degree, but not of kind, and the accused, having been charged with the more serious, is allowed to be convicted of the less serious offence (b). The former class of cases is illustrated by the enactments providing that a person charged with felony may, in certain cases, be convicted of a misdemeanour; and that a person charged with stealing may be convicted of embezzlement, and vice versa. The second class is illustrated by the common law rule that on an indictment for murder, if the prosecutor fails in proving malice prepense, the accused may be convicted of manslaughter; and by the provisions contained in s. 56 (3) (5) of the Army Act.

9. It is the substance only of the charge that need be proved. Substance Allegations which are not essential to constitute the offence, and only of charge need which may be omitted without affecting the validity of the charge, be proved. do not require proof, and may be rejected as surplusage (c). In some cases, as in charges against a sentinel for misbehaviour on his post, or in a charge for not giving immediate notice of desertion (d), the time or place of the offence is material; but as a rule it is not so. Where the court think that the facts proved differ materially from the facts alleged, but prove the same charge, they are empowered by Rule 44 (B) to record a special finding, instead of a finding of "Not guilty."

(ii.) What facts are assumed to be known.

10. The court are said to take judicial notice, in other words not Judicial to require evidence, of any facts which are so generally known as notice. not to require special proof. By Rule 74 the court are expressly authorised to take judicial notice of all matters of notoriety, including all matters within their general military knowledge.

(a) See Rules 9-12, and 23. As to offences of conduct to the prejudice of good order and military discipline, see s. 40 of the Army Act, and ch. III, para. 32.

(b) The provision in s. 56 (4) of the Army Act, which allows a person charged with attempting to desert to be found guilty of desertion, cannot be placed under either of these heads of exceptions, but is in a class by itself.

(c) See Rules 9-12, and 23, and as to particulars of time and place in the charge, see Note as to use of Forms of Charges (18)-(22), at the beginning of Appendix I to the Rules, pp. 531, 532.

(d) See Army Act, ss. 6 (1) (k), 14 (2).

Ch. VI. Thus, evidence need not be given as to the relative rank of officers, as to the general duties, authorities, and obligations of different members of the service, or generally as to any matters which an officer, as such, may reasonably be expected to know (a). Nor, again, would it be necessary to prove that an important battle was fought on the 18th of June, 1815.

be taken.

Matters of 11. Among the matters of which it is the duty of all judges to which take judicial notice may be mentioned :- Acts of Parliament: the judicial notice will general course of proceedings and privileges of Parliament, the date and place of the sittings of each House, but not transactions in their journals; the course of proceedings and rules of practice in the Supreme Court of Judicature; the accession of the King; the existence and title of every State and Sovereign recognised by the King; the Great Seal, the Privy Seal, the Seals of the Superior Court of Justice; the seal of any notary-public in the British Dominions, and various other seals; the extent of the territories under the dominion of the Crown, and the territorial and political divisions of the different parts of the United Kingdom; the ordinary course of nature, natural and artificial divisions of time, and the meaning of English words; and all other matters which they are directed by any statute to notice.

Burden of

proof.

(iii.) By which side Proof must be given.

12. In considering the practice as to the burden of proof regard must be had to two rules; first, that every man is presumed to be innocent until he is proved to be guilty; and, second, that he who alleges a fact must prove it, whether the allegation is couched in affirmative or negative terms. It follows from both these rules that it is incumbent on the prosecution in the first instance to give evidence of the commission of the offence, and connecting the accused with the commission, and that then, but not till then, the accused is bound to prove any facts from which he wishes the court to infer his innocence. The rule that he who alleges a fact must prove it, even though the allegation is couched in negative terms, is subject to two exceptions :

--

(1) Some statutes expressly provide that the proof of lawful excuse, or authority, or the absence of fraudulent intent, shall lie on the person charged, although by the terms in which the offence is defined they are expressly made elements of the offence, as in the statute making it criminal to be found by night in the possession of housebreaking implements without lawful excuse (b);

(2) Where the subject of the negative assertion is peculiarly within the knowledge of the accused, he must prove it as a matter of defence. For instance, in a charge of leaving the ranks or a post without orders, absence without leave, releasing a person without authority, or detaining a person unnecessarily (c), it would lie on the person charged to prove that the requisite orders, leave or authority had been given, or that the necessity existed. On the other hand, when a soldier is charged with

(a) See s. 6 (1) (e), 8, 10 (3), 17 and 25 (1), of the Army Act, as illustrations of matters which would be presumed to be within the general military knowledge of an officer.

(b) Larceny Act, 1861 (24 & 25 Vict., c. 96), s 58.

(c) See Army Act, ss. 5 (1), 6 (1) (b), 15, 20 (1), 21 (1).