Ch. VI. Confession admissible 73. The general rule is, that a confession is not admissible as evidence against any person except the person who makes it (a). But a confession made by one accomplice in the presence of another only against is admissible against the latter to this extent, that, if it implicates him, his silence under the charge may be used against him, whilst on the other hand his prompt repudiation of the charge might tell in his favour. person who makes it. Confession must be 74. Before a confession can be received in evidence, it must be voluntary. proved affirmatively that the confession was free and voluntary; and therefore the prosecutor must always prove the circumstances under which it was made. Confession when not deemed 75. A confession is not deemed to be voluntary, if it appears to the court to have been caused by any inducement, threat, or voluntary. promise proceeding from a magistrate or other person in authority or concerned in the charge (e.g., the prosecutor or the person having the custody of the accused), and having reference to the charge against the accused person, whether addressed to him directly or brought to his knowledge indirectly, and if, in the opinion of the court, the inducement, threat, or promise gave the accused person reasonable grounds for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. Thus, on a trial of A for murdering B, a handbill issued by the Secretar of State, promising a reward and pardon to any accomplice who would confess, was brought to the knowledge of A, who, under the influence of a hope of pardon, made a confession. It was held that the confession was not voluntary (b). Confession when deemed 76. But a confession is not involuntary merely because it appears to have been caused by the exhortations of a person in authority voluntary. to make it as a matter of religious duty, or by an inducement Confession made after collateral to the proceedings, or by inducements held out by a person having nothing to do with the apprehension, prosecution, or examination of the accused. Thus, A being charged with the murder of B, the chaplain of the gaol read the Commination Service to A, and exhorted him on religious grounds to confess his sins. A in consequence made a confession, and it was held that this confession was voluntary (c). So, again, a confession made by a prisoner to a gaoler in consequence of a promise by the gaoler that if the prisoner confessed he should be allowed to see his wife, would be admissible in evidence. In short, to make a confession involuntary, the inducement must have reference to the escape of the accused from the criminal charge against him, and must be made by some person having power to relieve him, wholly or partially, from the consequences of that charge. 77. A confession is deemed to be voluntary if, in the opinion of removal of the court, it is shown to have been made after the complete removal impression of the impression produced by any inducement, threat, or promise produced by which would otherwise render it involuntary. Thus, A is accused threat, &c., deemed of the murder of B, and C, a magistrate, tries to induce A to confess voluntary. by promising to try to get him a pardon if he does so. The Secretary of State informs C that no pardon can be granted, (a) Stephen, Dig, Ev., art. 21. As to when the statement of one mutineer or conspirator is admissible against another, see above, para. 26, et seq. (b R. v. Boswell, Car. and Marsh, 84, cited as an illustration by Stephen, Dig. Ev., art. 22. R. v. Thompson [1893] 2 Q. B., 12. (c) R. v. Gilham, 1 Moo. C. C., 186, cited by Stephen, Dig. Ev,, art. 22. and this is communicated to A. After this A makes a statement. Ch. VI. This is a voluntary confession (a). discovered admissible. made under 78. Facts discovered in consequence of a confession improperly Facts obtained, and so much of the confession as distinctly relates to through those facts may be proved. Thus, A, accused of burglary, makes involuntary a confession to a policeman under an inducement which prevents confession it from being voluntary. Part of it is that A had thrown a lantern into a certain pond; the fact that he said so, and that the lantern was found in the pond in consequence, may be proved (b). 79. It is, of course, improper to endeavour to extort a confession Confession by fraud or under the promise of secrecy; but if a confession promise of is otherwise admissible as evidence, it does not become inadmis- secrecy, &c. sible merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions whether put by a magistrate, officer, or private person, or because he was not warned that he was not bound to make the confession, and that evidence of it might be given against him. confession 80. If a confession is given in evidence, the whole of it must be Whole of given, and not merely the parts disadvantageous to the accused must be person. given. oath or in ings. 81. Evidence amounting to a confession may be used as such Confession against the person who gives it, though it was given on oath and made on though the proceeding in which it was given had reference to the previous same subject-matter as the proceeding in which it is to be used, proceedand though the witness might have refused to answer the questions put to him; but if, after refusing to answer such questions, the witness is improperly compelled to answer, his answers are not a voluntary confession (c). Thus A was charged with maliciously wounding B. Before the magistrates, A had appeared as a witness for C, who was charged with the same offence. A's deposition was allowed to be used against him on his own trial (d). The same rule would appear to apply to statements made by a soldier charged before his commanding officer; but the proceedings of a court of inquiry, or any confession or statement made at a court of inquiry, cannot be used as evidence against an officer or soldier before a court-martial, unless the court-martial is one for the trial of an officer or soldier for wilfully giving false evidence before the court of inquiry (e). (vi.) Who may give Evidence. rule as to 82. As a general rule, every person is a competent witness. General Formerly persons were disqualified by crime or interest, or by competency being parties to the proceedings, but these disqualifications have of witnow been removed by statute (f), and the circumstances which nesses. formerly created them do not affect the competency, though they may often affect the credibility, of a witness. 83. Under the general law as it stood before the Act of 1898 Comcame into force a person charged with an offence was not com (a) Stephen, Dig. Ev., art. 22, R. v. Clewes, 4 C. and P., 221. (b) Stephen, Dig. Ev., art. 22, R. v. Gould, 9 C. and P., 364. (c) Stephen, Dig. Ev., art. 23. (d) R. v. Chidley and Cummins, 8 Cox, Crim. Ca., 365. (e) Rule 124 (L). (f) Lord Denman's Act, 6 & 7 Vict., c. 85; Lord Brougham's Act, 14 & 15 Vict., e 99; Criminal Evidence Act, 1898, 61 and 62 Vict., c. 36. The last-mentioned Act, by s. 6, is not to apply to courts-martial till so applied by Rules of Procedure. It has so applied since the 16th January, 1899. See Rule 73 (B). petency of person charged. Under Ch. VI. petent to give evidence on his own behalf, but many exceptions had been made to this rule by legislation, and the rule itself was finally abolished by the Criminal Evidence Act, 1898. the new law a person charged is a competent witness, but(i.) He can only give evidence for the defence; and, (ii.) He can only give evidence if he himself applies to do so. 84. Under the law as it stood before 1898 persons jointly charged and being tried together were not competent to give evidence either for or against each other. Under the new law a person charged jointly with another is a competent witness, but only for the defence and not for the prosecution. If, therefore, one person charged applies to give evidence his cross-examination must not be conducted with a view to establish the guilt of the other. Rule as to persons jointly charged. Evidence of accomplices. Com petency of wife. If, therefore, it is thought desirable to use against one accused person the evidence of another who is being tried with him, the latter should be released, or a separate verdict of not guilty taken against him. An accused person so giving evidence is popularly said to turn King's evidence. If an accused person thinks that the evidence of one or more of the other persons proposed to be conjointly arraigned with him will be material to his defence, he should claim a separate trial (a). 85. It follows from what has been stated that the evidence of an accomplice is admissible against his principal, and vice versâ, subject, if they are tried together, to what has been stated in the preceding paragraph. The evidence of an accomplice should always be received with great jealousy and caution. A conviction on the unsupported testimony of an accomplice may, in some cases, be strictly legal, but it is the practice to require it to be confirmed by unimpeachable testimony in some material part, and more especially as to his identification of the person or persons against whom his evidence may be received. 86. The wife of a person charged is now a competent witness but, except in certain special cases : (i.) She can only give evidence for the defence; and, (ii.) She can only give evidence if her husband applies that she should do so. The special cases in which a wife can be called as a witness either for the prosecution or for the defence, and without the consent of the person charged, are where the accused is charged with an offence under Sections 48 and 52-55 of the Offences against the Person Act, 1861 (24 & 25 Vict., c. 100), or under Section 12 or 16 of the Married Women's Property Act, 1882 (45 & 46 Vict., c. 75), or under the Criminal Law Amendment Act, 1885 (48 & 49 Vict., c. 69), or under the Prevention of Cruelty to Children Act, 1904 (4 Edw. 7, c. 15) (b), and cases in which the wife is by| common law a competent witness against her husband, i.e., where the proceeding is against the husband for bodily injury or violence inflicted on his wife. The rule of exclusion extends only to a lawful wife. There is no ground for supposing that the wife of a prosecutor is an incompetent witness. (a) See Rule 15. (b) Offences against 5 Geo. IV, c. 83, and 8 & 9 Vict., c. 83 (desertion of wife, &c.) are not included in this list, as the sections do not apply to persons subject to military law. See Army Act, s. 145 (1). tency from 87. A witness is incompetent if, in the opinion of the court, he Ch. VI. is prevented by extreme youth (a), disease affecting his mind, Incompeor any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding the questions put idiotey, &c. to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth (b). sons not in 88. A witness unable to speak or hear is not incompetent, but Deaf and may give his evidence by writing or by signs, or in any other dumb permanner in which he can make it intelligible, but such writing competent. must be written and such signs made in open court. Evidence so given is deemed to be oral evidence (b). immaterial 89. The particular form of the religious belief of a witness, Religious or his want of religious belief, does not affect his competency. If belief he takes an oath he may take it with such ceremonies and in such as to commanner as makes it binding on his conscience (c). If he objects petency. to take an oath on the ground that he has no religious belief, or that taking an oath is contrary to his religious belief, he may make a solemn affirmation (d). member of evidence. 90. A member of a court-martial is a competent witness in favour Compeof the accused, and might, as such, be sworn to give evidence at tency of any stage of the proceedings; but the Army Act and Rules of court to Procedure direct that a witness for the prosecution shall not sit on give a court-martial for the trial of any person against whom he is a witness (e). A member of the court must not communicate privately to other members of the court any special knowledge which he has, or thinks that he has, of the guilt or innocence of the accused, or act on private grounds of belief. If he wishes to give evidence, he must be sworn as other witnesses and be subject to cross-examination. between competency 91. It will be seen that the effect of the successive enact- Distinction ments which have gradually removed the disqualifications attaching to various classes of witnesses has been to draw a distinction and credibetween the competency of a witness and his credibility. No person bility. is disqualified on moral or religious grounds, but his character may be such as to throw grave doubts on the value of his evidence. No relationship, except to a limited extent that of husband and wife, excludes from giving evidence. The parent may be examined on the trial of the child, the child on that of the parent, maste for or against servant, and servant for or against master. The relationship of the witness to the prosecutor or the accused in such cases may affect the credibility of the witness, but does not exclude his evidence. (vii.) Privilege of Witnesses. Person com-1 petent not 92. It by no means follows that, because a person is competent to give evidence, he is therefore compellable to do so. There are always commany cases in which a witness before a civil court may decline to pellable to give evianswer a question or produce a document, and the like privileges dence. are expressly extended by statute to witnesses before courtsmartial (ƒ). (a) By the Criminal Law Amendment Act, 1855 (43 & 49 Vict., c. 69, s. 4), and the Prevention of Cruelty to Children Act, 1904 (4 Edw. 7, c. 15), s. 15, special provision is made for the reception of the unsworn evidence of a child in the case of certain offences against girls and children. (b) Stephen, Dig. Ev., art. 107. (c) Rules 30, 82 (C); and see 1 & 2 Vict., c. 103. (d) 51 & 52 Vict., c. 46; Army Act, s. 52 (4), Rule 82. (e) Army Act, s. 50 (3), Rules 13 (3) (ii) and 106 (D), (f) See Army Act, s. 12%, and Rule 73 (B). Ch. VI. Witness not to be compelled to criminate himself. Rules as to accused giving evidence. 93. No one, except the accused himself when giving evidence on his own application, and as to the offence wherewith he is charged, is bound to answer a question if the answer would, in the opinion of the court, have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge, penalty, or forfeiture, which the court regards as reasonably likely to be preferred or sued for, or to any military punishment. Accordingly, an accomplice cannot be examined without his consent, but if an accomplice who has come forward to give evidence on a promise of pardon, or favourable consideration, refuses to give full and fair information, he renders himself liable to be convicted on his own confession. However, even accomplices in such circumstances are not required to answer on their cross-examination as to other offences. 93A. Where the accused offers himself as a witness he may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged. But he may not be asked, and if he is asked must not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any other offence, or is of bad character, unless (i.) The proof that he has committed or been convicted of the (iii.) He has given evidence against any other person charged He may not be asked questions tending to criminate his wife. Evidence tending to show that the accused has been guilty of criminal acts other than those covered by the charge is not admissible, except on the issue whether the acts charged against the accused were designed or accidental, or except for the purpose of rebutting a defence otherwise open to him (b). The circumstances under which evidence of this kind is admissible are well illustrated by the following case (c). M. and his wife were charged with the wilful murder of an infant child. The evidence showed they had received the child from its mother on certain representations as to their willingness to adopt it, and upon payment of a sum inadequate for its support for more than a very limited period, and that the child's body had been found buried in the garden of a house occupied by them. It was held that evidence that the prisoners had received several other infants from their mothers on like representations and on like terms, and that bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners, was relevant to the issue which had to be tried by the jury. In such a case the person charged would be liable to be cross-examined as to the circumstances under which the bodies of the other infants came to be so buried. (a) See Rule 80. (b) See para 22, supra. (c) Makin v. Attorney-General for New South Wales, L.R. [1894], A.C. 57. |