The Gazette 1967/71

Criminal Law : Election to be tried summarily The applicant was summoned before Justices on 64 motoring offences, on one of which offences he was obliged to elect whether or not he wished to be tried summarily or by a jury. The charge was read and the applicant was told that he had a right to be tried by jury whereupon his solicitor replied that he elected to be tried summarily. The applicant was convicted and appealed on the ground that the question as to mode of trial should have been answered by the applicant him self. Lord Parker C. J. said that the sub section in question (Section 25 (3) of the Magistrates Courts Act, 1952) had clearly not been complied with since the statute enjoined the court to ask the accused personally whether he wished to be tried by a jury. R. V. Cockshott (1898) 1 Q.B. 582 held that the provision then contained in the Summary Jurisdiction Act, 1879 was mandatory. Therefore the question must be put to the accused himself. (R. V. Kettering Justices ex Parte Patmore 112. S. J. 656). Evidence—impunging credibility of witness 1. A witness might be asked whether he had knowledge of the impunged witness's general reputation for veracity and whether, from such knowledge, he would believe the impunged witness's sworn testimony. 2. The witness called to impeach the credi bility of a previous witness might also ex press his individual opinion based on his personal knowledge as to whether the latter was to be believed on his oath and was not confined to giving evidence merely of general reputation. 3. Whether his opinion as to the impunged witness's credibility was based simply upon the latter's general reputation for veracity or upon his personal knowledge, the witness could not be permitted to indicate during his examination in chief the particular facts, circumstances or incidents which form the basis of his opinion, or he might be cross- examined as to them. This summary of the legal position was made by the Court of Appeal in which the defendants, L and R were charged on two counts of con spiracy to prevent the course of public justice by trying to influence a jury and by suborning witnesses at a trial in 1966. The prosecution evi-

were to choose between a statement made by an accused person seeking to evade justice in another jurisdiction and a sworn statement made by a person whose knowledge of the facts in that juris diction was evident and who himself was not try ing to escape from justice, he would naturally be more inclined to accept the evidence of the per son in authority. In the present case no such choice existed as evidence had been received on one side only. Held that the case came within Section 50 of the Extradition Act, 1965 and that the applicant should be released accordingly. (Ex. P. Magee, May 1968). Evidence of Previous Convictions The Criminal Act 1967, (ii) allowes the judge an unfettered discretion to ad mit or exclude evidence about the accused's character or previous record where an accused person attacks a prosecution witness in the course of his defence. His duty is to ensure a fair trial. It is desirable that a warning should be given when the defence is taking a course which might expose the accused to such cross examination. The four propositions set down in R. v. Turner (1944) 1 KB 463 approved of :— 1. The words of the Act must be given their ordinary natural meaning. 2. The section permitted cross-examination of the accused as to character both when im putations on the character of the prosecutor and his witnesses were cast to show their unrealibility as witnesses independently of the evidence given by them and also when the casting of such imputations was neces sary to enable the accused to establish his defence. 3. In rape cases the accused could allege con sent without placing himself in peril of cross- examination. 4. If what was said amounted in reality to no more than a denial of the charge, even if expressed in emphatic language, it should not be regarded as coming within the sec tion. Held the failure to give the judge a warning that the course which the defence was taking could expose the accused to cross-examination on character and previous convictions would not justify allowing the appeal. (Selvey v. Director of Public Prosecution, Times, May 9th, 1968). Section 1 (f)