Enclosure No. 2.
Hon. Colonial Secretary,
In drafting the provision for informing the
accused that he had the right, if he so desired, to give
evidence on his own behalf, I intentionally put it before
the invitation to make a statement from the dock and provided that the latter invitation should be extended only
if the accused did not desire to give evidence. The Secretary of State does not object to this provided it was so intended. Up to 1898 in England (1906 in this Colony) the right of accused to give evidence at all in
ordinary cases did not exist. When the right was first conferred it had many opponents but these, trained under
the old rules, are dying out and the modern tendency is to encourage the accused to give evidence rather than to discourage them from so doing. The Criminal Evidence Act and Ordinance provided that the failure of the accused to give evidence should not be made the subject of comment by the prosecution, but it was soon held that this limitation did not apply to the judge (R. v. Rhodes 1899. 1 Q.B.77) and
many judges, of whom Sir Henry Gollan was one, frequently
make such comment especially in cases where the defendant
is not called on, or is not called on at an early stage, to establish an innocent explanation of facts proved for
the prosecution, which without such explanation tell for his guilt. The right to make a statement from the dock,
which cannot be tested or elaborated by questioning is a
relic of the old procedure before evidence by the accused
in the witness box was permitted.
(sd.) C. G. ALABASTER.
Attorney General. 9.
2.
32.
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