Truth PREJUDICED PRISONERS.

NZ Truth, Issue 309, 27 May 1911, Page 4

Truth

PREJUDICED PRISONERS.

A Questionable Privilege.

PUBLISHED EVEBY SATUBDAY Moving at Luke's Lane (opp Mannebsstbebt), Wellington, n.z.

TERMS TO SUBSCRIBERS. S. D. peb Annum... 13 o ) Payable Halp-Yeablt 6 6 \ m QUABTERLY... 3 3 ) ADVANCE. SATURDAY, MAY 27. 1911,

The criminal sessions just concluded furnish a fruitful subject f,or reflection m, at a.ny rate, one important particular, and that is the value, m the. interests of justice, of the provision of our law which' makes it competent, but not compellable, for an person to give evidence on his own behalf. It is not a matter which can be summarily, dismissed with a hastily formed opinion, and it can only be decided by a reference, not to current cases, but to those which are finished and done with. Nearly thirteen years have elapsed since the radical . change was introduced m England by the passage of the Criminal Evidence Act', 1898, and, as m theory it seemed a right, and proper privilege to grant all accused persons, it was not long m being followed by similar legislation m Australia and m New Zealand. In England, as well as m these oversea dominions,^the change was welcomed as equitable, and may so still be regarded by the great majority of persons who are happy enough never to figure m a criminal court or to have any knowledge of the investigation of crime.

To determine whether the provision has really conduced to the ends of justice necessitates a little closer study of the provision m detail. The accused person can only be put into the witness-box if he asks to be ; and, if he does not ask, then his abstention must not be commented upon by the prosecution. In other words, the accused person is entitled to please himself, and he is not to be m any way prejudiced if. he does not choose to speak. That is all very well m theory. In practice there' is a difficulty which every barrister must feel every time he is entrusted with a defence. His client will often be a person m a humble station of life,, ill-educated, even literally ignorant of the very meaning of words and phrases employed m court by those whose duty it will be to ask questions. Before the enactment came into operation, the individual thus circumstanced was guarded by the genius of the common law, the essence of which was that no one need criminate himself. Since the enactment, such a person- is guarded only by statute, and, m his own interest, he has made a bad exchange.

I The judge does his best to see that the prisoner who does not choose to give evidence on his own behalf is not prejudiced. The counsel for the Crown does his best. "Truth" is not aware of any single instance m which the bench has had to call a barrister to order for so commenting m contravention of the statutory provision. Counsel for the defence, however, have not always been so careful. Perhaps they feel that juries are mortal, and cannot order their impressions to directions laid down m the statute-book. So we get those statements made with great display by defending counsel : "Before this case is over the prisoner will go into the box and tell you his own story." Consequently juries have become accustomed to those announcements, expect them, and form their own conclusions if they are not made. That is all wrong ; it is not difficult to understand how wrong, since it is leading to a condition of things where a prisoner's disinclination to speak wiP produce unfavorable, conclusions. Tho whole spirit of the common law, the very essence of the more recent statutory provision, was to relieve him of all onus to open his mouth. We are, however, movj towards a point when the onus will |be upon him to speak-or take the consequences.

When that time comes, then we shall be face to face with situation which was never by Parliament. Prisoners will bj tried on their own evidence and nothing else. They are competent witnesses -w. P-Jore lon^tbev only for their evidence, and decide for or against them as a result of them pression which they may have made m the box. Two cases did occur m England, some six or seven years

ago, where the accused were undi-? luted ruffians, who might both of them have escaped the gallows had they held their tongues •< as it was, they were hanged on their face value—which was all wrong. It might have been all right were it an oasy thing for a man to bo a good witness when he happens to be innocent. To be m a witness-box is to bo m a helpless position, even for men of intelligence and education whose testimony is only needed m a civil action on an impersonal matter. Under the Act, the witness is as often as not a person without intelligence or education, and he is lighting for his liberty, perhaps his life. How easy it will be for him to make an unfavorable impression on the jury is known to those whose business takes them into criminal courts. The interrogations of the accused which takes- place m trials m Europe and m America has advantages and disadvantages. It certainly was no part of our jurisprudence up to the end of the nineteenth century. If it is let m, it will have to be carefully watched.,