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“CRIMINAL LAW AND ITS HIS-
TORICAL DEVELOPMENT” The following is the conclusion of the paperon “Criminal Law and its Historical Deve fopment," read before the Odd-Volumes Society at the City Hall on Tuesday: Beth ult., by the Hon. W. Meigh Goodman (Acting Chief Justice): PROCEDURE IN THE CASE OF INDICTABLE UFF ENCES.—(▲) ProDEDURE BEFORE THE MAGISTRATE.
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[ February 10, 1900,
THE HONGKONG WEEKLY PRESS AND
threat.". Any statement which the scoused may | laud the Grand Jury are interposed between make in answer must be taken down, read over the committal for trial and the actual trisi in to him, signed by the Magistrate and placed Court. In point of fact an indictment in with the depositions; and such statement may England is a written socusation of a crime
preferred to and presented upon oath by be given in evidence against him at his trial.
The Magistrate will then proceed to de Grand Jury. It commences The Jurors for mand of the accused whether he wishes to our Lady the Queen upon their oath -prevent call any witnesses. If so, their statements | that J. N. on the lat day of June, ato, did upon oath will be taken both by way of | (commit such and such crime). Thus before examination and oross-examination, provided the cases at Assises' or Quarter Sessions in they know anything of the facts of the England are taken, a Grand Jury of not case, or anything tending to show the inno- less than twelve nor more than twenty three cence of the accused. Such depositions will persons are summoned for the purpose of re It may be appropriate to indicate, at this be reduced into writing, read over to the person, ceiving such Bill of Indictment as may be point, the mode of procedure followed in Eng; making the same, and otherwise treated in referred before them. The Grand Jurors, de a and in the case of an indictable offence, and precisely the same manner as the depositions for rule, consist of gentlemen of standing within dealt with summarily by the Magistrate. As the prosecution. Should this last evidence be the district, for which the Court is sitting. a rule, such a case commences, if the accused is such as to supply, in the opinion of the Magis. not already in custody, by the issue of a sum-trate, a sufficient and conclusive answer to the mons or warrant to procure bis attendance be charge, the accused will be at once released. fore the stipendiary Magistrate or the two Should the Magistrate, on the other hand, con Justices of the Pesce, who in many country dis- sider it his duty to send the matter for trial he tricts of England are his equivalent. The sum will either commit the accused to prison for safe mous or warrant of arrest as the case may be con custody during the interim or admit him to tains a concise statement of the charge. Before bail. He will bind over, by recognisance, the a warrant of arrest can issue it is indispensable prosecutor and his several witnesses, as well as that the information or statement of the no-
all witnesses called for the defence (not being cuser or informer should be verified by oath in
mere witnesses to character) who may, in his due form.
opinion, have given evidence in any way materi al to the case, or tending to prove the innocence of the accused, to appear at the Court at which the accused is to be tried and prosecute or give evidence respectively.
Minors and married women are constantly thus bound over, and the Magistrate may, by warrant, commit to prison witness refusing to be bound, until the
The accused person, either having appear- ed to a summons or being brought up in custody, is placed in the dock and proceed- a remand is ings begin at once. Often at this stage asked for on the part of the prosecution, so as to procure the attendance of all the necessary witnesses, some of whom may not yet be in attendance. Some slight evidence will justify such remand, and the Magistrate may orally remand for three clear days or by written warrant for a space not exceeding eight clear days.
Subpoenas may be issued if necessary to pro- "Then, upon cure the attendance of witnesses. the day appointed for continuing the hearing the prosecutor and his witnesses as well as the accused being present, and either side, should they think fit, being represented by counsel, the case opened by a brief statement upon the part of the prosecutor, who then proceeds to bring forward his witnesses. The latter will be examined upon oath, their depositions being taken down by the clerk, in the first person, and as nearly as possible in the exact language used. Any material remark volunteered by the prisoner during any part of the proceedings should be similarly recorded. At the close of each witness' examination, the accused, or bis counsel is at liberty to cross-examine him, and the anwers will be taken down in the same manner as those obtained upon the examination- in-chief."
All these depositions will then be read over to, and signed by, the respective witnesses who have made them and will be signed by the presiding Magistrate, And any such deposition may be used against the accused, at his trial, in case of the previous death of the witness mak. ing it or of his being so ill at the time as to be unable to attend.
If, after hearing all the evidence for the prosecution, the Magistrate is of opinion that it is not sufficient to put the accused on trial, the latter is entitled to be forthwith discharged It should be observed that the ordinary rules of evidence apply equally to such cases as th present as to those in which the Magistrate is dealing with a matter as to which his juris. diction is final.
If the Magistrate is satisfied, however, that the evidence adduced by the prosecutor is suf- ficient to put the accused on his defence, he will read or cause to be read to him the depositions already taken, and, after informing him of the precise legal charge which he has to answer, will address him in the following terms:
•Having heard the evidence do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so; but whatever yon say will be taken down in writing and may be given in evidence against you on your trial, and you are also clearly to understand that you have nothing to hope from any promise of favour and nothing to fear from any threat which may have been holden out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence against you upon your trial, notwithstanding such promise or
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trial."
(b.) PROCEDURE BETWEEN COMMITTAL AND
TRIAL FUNCTIONS OF THE GRAND JURY
IN ENGLAND AND THE ATTORNEY
GENERAL IN HONGKONG.
The Magistrate, having committed for trial, the accused, in England, either remains iu custody till the hearing of the case by the Quarter Sessions or the Judge of Assize as the case may be, or else procures bail, which will generally be allowed, except in cases of very serious crime where the paaishment is likely to be so heary that the accused would, in all probability, prefer to forfeit the recognisance of himself and his sureties, and run away rather than appear and take his trial.
In this Colony there are no Quarter Sessions, but, what is more advantageous to the accused, a monthly sitting of the Supreme Court which ensures the speedy trial of all accused persons and prevents the delays which are often com. plained of in England.”
Another difference at this stage of the pro- ceedings appears between the practice in Hong- kong and the course adopted in England. Here we have a public prosecutor. The Attorney General bas the depositions submitted to him by the Crown Solicitor and considers the case carefully.
He has power by Ordinance to remit the case back to the Magistrate, if he is of opinion that the accused person should not have beeu com- mitted for trial, but should have been dealt with summarily. In the latter case he can direct the Magistrates so to deal with the matter.
At the Assizes, the Grand Jury consists in practice of county Magistrater, a list of whom is called over at the opening of the Courts in order that they may appear. Th▾ Judge de
" or address to livers what is called a "charge the Grand Jury, shortly pointing out the nature of their duties and directing their attention to any peculiarities in the cases which they will have to consider The Grand Jury discuss each indictment, seriatim, and hear witnesses in private (usually only those for the prosect. tion) and, if they are satisfied that there is a prinui facie case against the accused person, they return a "true bill" (as it is called, and the case then goes for trial before a Julge and jury. If they think that there is no case made out, the foreman endorses upon the indictment the words "no true bill." In every case the foreman signs the endorsement. True bills are brought by the Grand Jury into the Court and banded by the foreman to the clerk of the Court. If "no true bill" is found, the case is at an end, unless there has been a verdict against the ac- oused by the jury in a Coroner's inquisition. Historically, the interposition of the Grand Jury was the natural course of things, but it seems to me it is not really now necessary ln those cases where an experienced Magistrate has already investigated the matter and committed the accused for trial. In this colony, the work of the Grand Jury is in substance performed by the Attorney General and the time of the twelve to twenty-three gentlemen is saved thereby.
(c.) PROCEDURE AT THE TRIAL.
I need only tonch lightly on the trial to which all these formalities are the preliminary, for a criminal trial now differs in very few points from any ordinary civil cause, and its course is well known. At the present day any accused person may retain counsel for bis defence. It seems strange to ts now that until 1836 a prisoner charged with felony was not allowed to have the benefit of professional advocacy. Yet auch was the case, and I may add, in passing, that it was not till 1747 that
a
full defence by counsel" was allowed to those accused for treason. The accused man is first of all "arraigned," that is, called to the bar to plead to the charge made against him. There are now only four possible pleas, the person charged with felony can plenil “Guilty." "Not Guilty," "" Autrefois Acquit,"
Autrefois Conviot." "Of course, the last two pleas simply allege a previous trial and acquittal or conviction of the accused as to the offence charged in the indictment. The Attorney General can also refer back the Bat the usual plea is Not Guilty," and that documents to the Magistrate with directions to ples puts the prosecutor upon the proof of re-open the inquiry for the purpose of taking everything necessary at law to prove the pri further evidence. These powers are not often soner's guilt. If the accused is obstinate and used but they are useful powers to possess. declines to plead at all, a plea of “not guilty'
As a general rule, the Attorney General pre- is entered for him." One may here remark that pares the formal charge or information or (as less than one hundred and fifty years ago a it is now called under the new Procedure Orprizoner who would not plead was treated very dinance. No. 13 of 1899) the Indictment against | differently. Sir J. F. Stephen points out that,
the accused.
After the indictment is prepared and signed by the Attorney General it is, in this Colony. brought to the Registrar of the Court and is filed by him in the Supreme Court. A notice is then endorsed on it addressed to the accused specifying the date of the session at which the trial will take place, and a copy of the indictment and of this notice is served on the accused by the Bailiff of the Court. Thus the accused is put in possession of the exact nature of the charges upon which he will have to be tried and can prepare for his defence accordingly. Moreover he has the ad- rantage of knowing the evidence against him, which was given at the Magistracy. In Eng.
till 1772, such a person was taken and "stretch. ed naked upon his back and had iron laid upon him as much as he could bear and more, and had so to continue, fed upon bad bread and stagnant water, on alternate days, till he either plead- ed or died." Indeed, in 1726, one Burnwater, accused, at Kingston Assizes, of murder, refus- ed to plead, and was pressed for an hour and three quarters with nearly four hundred-weight of iron, after which he pleaded not guilty." and was convicted and banged. I remem. cases. The ber reading of several other object of refusing to plead was that in that case there could be no conviction, there- fore no forfeiture occurred and the property of the accused person was thus preserved for his
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