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prisoner himself would never have made, and Fet for which he might be responsible." I think, if I rightly understand his argument, the Attorney-General desired to draw the infer- euce that a prisoner is responsible for, and therefore bound by, what his counsel does, or leares undone. So far as what he leaves undone is concerned, the authorities are dead against the contention. But the learned judge clearly used the word "responsible" as meaning "take the consequences." Of course the jury would be influenced by what counsel might say, and the prisoner would suffer if the defence was an unsubstantial one. What the circumstances alluded to do not apply, for counsel now assigned to defend prisoners for murder may and do communicate with them. But the case has an important bearing on the question of trials of foreigners, for Yauade was a Spaniard, and the evidence WMS translated and read over to him by the judge, and care was taken that he was made acquainted with all that trans. pired during the trial. I am therefore of opinion that the fact of counsel being retained by, or assigned to the prisoner, makes no difference to the application of the principle of the law as I have deduced it from the autho rities. And to the suggestion that the prisoners have suffered no hardship I answer they have suffered the greatest hardship of an irregular trial. Though, as was said in the judgment in R. v. Bertrand, this is irrelevant to the question which this Court has to decide. The quashing of this conviction is regrettable in itself; it is more so from the fact that this is not the first time the question has been raised. The Attorney General referred to the custom of this Court, which has been, he said, invariably never to translate the evidences when prisoners are represented by counsel, That it was the custom seems to be a fact, for at the first murder case I tried in this Colony I drew attention to it, and directed the evidence to be translated, and I seem by referring to my notes to have done so a second time at the next Assize. I think the statement made by the late interpreter of the Court is defective in this respect, but it has been somewhat amended and explained. It is most regrettable that no note was taken by the Registrar of what I then said for the guidance of the interprater in the.! future. It was undoubtedly the duty of the Registrar to have it recorded, or else what falls from the bench becomes more idle talki instead of what it is intended to be, guidance for the future. But the position taken up by the Crown, though, I am glad to say, the Attorney-General did not defend it, is that in murder cases, when it is essential that every- thing should be done to insure the fairest trial possible, the slacker custom of not interpreting is sufficient. This consideration by itself is to my mind enough to show how bad the procedure is One word more, which is necessary in con- sequence of what the learned Attorney-General said with regard to his experience in other Colonies. He referred to cases in yprus where prisoners are of many nationalities, Turks, Greeks, English and I know not what others.
The Attorney-General--Turks and Greeks only, my Lord.
His Lordship--I was only using a quotation. The Attorney-General-There are English of course, my Lord, but I thought you were going to add infidels and heretics.
His Lordship, proceeding, said the Attorney. General stated that it was not the practice to interpret the evidence in the Courts in Cyprus, and that if it were, great expenditure of time and nouey would be the result. I can only say that in the trial of human beings for crimes, the law of England requires the utmost considera- tion for the accused, and the most scrupulous exactness in the conduct of the proceedings, and that time and money are nothing compared with liberty and life. I have little doubt that the law, as we have laid it down, unless a higher tribunal says it is wrong, will be seted upon throughout the King's Dominions.
The Pulsne Judge said-I do not propose to review the facts at any length, nor to deal minutely with the numerous authorities referred } to by Counsel on both sides in the course of a very full and exhaustive argument. I think the facts and the anthorities have been sufficiently dealt with in the judgment of the learnod Chief Justice, with which I agres generally. But I feel bound in a case of this importance to write out my own conclusions on my own lines, and I have endeavoured to set
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out the result as briefly as possible. The facts are shortly as follows: On the hearing of a charge for murder practically the whole of the evidence for the prosecution being given in a language the prisoners did not understand, none of that evidence was interpreted to them at the trial. The question is, then, whether a conviction obtained under such cir- cnustauces can hold good. Now, leaving out of consideration for a moment the fact that these prisoners were defended by counsel, I will take an elementary case, that of an undefended prisoner who hears noue of the evidence given against him, and who, in fact, has no more per- ception of the proceedlings than if he was absent from Court altogether. The genera rule in a eriminal prosecution is that the defendant must personally appear at the bar of the cart in order to be arraigned by hearing the indictment read, and to plead to it and further, that the defendant must remain in Court during the whole of the proceedings. He has, in fact, a right to be present at the trial as long as he conducts himself properly, and the law is so stated by Sir James S. Stephen, Digest of Criminal Procedure Act, 302 See also Archi- bald's Criminal Pleadings, 23rd edition. paga 186, No trial for felony can be had except in the presence of the defendant.” The rigidity of this rule appears to be absolute. On a trial for felony the prisoner must be in Court. Mis- dewenons are to some extent on a different footing, but I will deal with them later on. Ilay stress upon the importance of the rule that the prisoner must be actually present, because this doctrine seems to me to involve a great deal more than the mere corporal presence necessitated by his being given in charge to the jury. I think it goes further and requires an actual mental apprehension of the proceedings, for how, other wise, would the prisoner know what witnesses to call, or how would he be able to meet the evidence against him in the statement the law allows him to make to the jury? It was indeed almost suggested by the Crown that it is not technically necessary that the prisoner who is in the ourt should be able to understand the proceedings, and we were referred to several cases in which deaf mutes had been tried and convicted on an indictment for felony. But no such document อมก be founded on these cases (quotes). The whole tendency, therefore, of these authorities seems favour- able to the prisoners in the case before ឃុន. It may be said of course, that a prisoner at sessions who had had the evidence translated to him at the Police Court is well aware of the general tenour of the case against him, and that he may, if he chooses, waive his right to have the evidence interpreted again. The answer is, I think, that while in several cases the rules of evidence may be waived by con- sent of the parties in a criminal case, these rules are matters public juris, aud cannot be so dis- pensed with. On a criminal trial, not merely the single person accused has an interest at stake, but every other subject of the Crown concerned, in seeing that the prisoner is not deprived of life or liberty except under the whole of the safeguards pres- cribed by law. No acquiescence by the prisoner can therefore be of any effect. If then, it is necessary for an nudefended prisoner to hear the evidence at the trial. is there any difference when he is defended by counsel? If there is such a difference, it might perhaps be suggested in one of two ways: either that the prisoner is by the law so identified with the personality of his advocate, that the knowledge of the counsel is the knowledge of the client, and that the latter must be taken to have understood the evidence which was in fact apprebended by the former, or alternatively, it might be said that counsel, having been jsatisfied to lot the evidence go untranslated, has waived his client's privilege, and cannot afterwards be allowed to raise an ob. jection. Now, the unsoundness of the first of these propositions sufficiently appears, I think, on mere statement. Counsel has only knowledge of these facts aggregating his clients defence which may have been actually communicated to him. New points must frequently arise at the hearing, especially ou cross-examination which counsel cannot deal with of his own knowledge. and without referring to his client for the facts. It is really impossible that in a case of any mag- nitude counsel should have as close an acquain- tance with the peculiar circumstances of the defence as the prisoner himself. The latter's knowledge must necessarily be more intimate
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