Attorney-General (NSW) v Jackson [1906] HCA 90

High Court of Australia|1906-07-01|Before: Griffith CJ, Erle J

THE ATTORNEY-GENERAL OF THE STATE OF NEW SOUTH WALES j

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. of A. Bvidence - Deposition of witness in preliminary investigation - Admissibility 1906. after death of witness - Portion of statement omitted - Crimes Act (N.S ~~ (No. 40 of 1900), secs. 406, 409 - Justices Act (N.S.W.), (No. 27 of

Supreme Court - Grounds open on case stated - Prisoner no longer in Motion to rescind speciai leave.

Griffith C J., pranon ats Sec. 409, sub-sec. (1), of the Crimes Act 1900 provides that a dep purporting to be signed by the justice by or before whom it purports been taken may be read in evidence in the prosecution at the accused person upon proof on oath that the witness is dead, and deposition was taken in the presence of the accused, and that the a his attorney or counsel had a full opportunity of cross-examining the unless it is proved that the deposition was not in fact signed by purporting to sign it. Sub-sec. (3) provides that depositions preliminary or other investigation of any charge of felony or shall be admissible in evidence on the trial of the accused for an} although of a higher or different nature, if they would be admissible on trial for the offence in respect of which they were taken,

Held, that a deposition taken in the form prescribed by the Justices Ac as to which the requirements of sec. 409 were complied with, was not inadmissible by reason of the omission from the deposition of o iments made by the witness during the examination. Such an omi if the words omitted subsequently turn out to be material, afford comment on the value of the deposition as evidence, but it in no way its admissibility. p

'accused person was charged with a certain offence at a Police Court, and 4s then brought to a room where a witness was lying dangerously ill and was again charged and informed that the witness was about to give evidence. 'The deposition of the witness was then taken in the form prescribed by the ws Act. Subsequently the accused was committed for trial on the charged before the same justice.

thin the meaning of sub-sec. (3) of sec. 409, and was admissible in evidence | the trial of the accused for an offence of a more serious nature.

'Sec. 406 of the Crimes Act 1900 provides for the taking of the depositions of a person dangerously ill in certain cases, and prescribes certain conditions must be fulfilled before such a deposition can be given in evidence the trial of an accused person for the offence to which the deposition

Fda, that a deposition taken under the circumstances contemplated by it section, but which was not admissible under it by reason of non-compli- with the prescribed conditions, might nevertheless be admissible in

n the admissibility of a deposition is in question at a criminal trial, all nt questions of fact are to be determined by the presiding Judge, and

', that the High Court will not grant special leave to appeal from a jon of the Supreme Court quashing a conviction on a Crown case reserved, ithe ground that the point upon which the decision went was not one of se specifically reserved at the trial, if that point appears clearly on the face

n to rescind special leave to appeal from the judgment of the Supreme 3 Rex v. Margaret Jackson, (1905) 5 S.R. (N.S.W.) 581, refused, and ent reversed,

as ATTORNEY- GENERAL OF New Sout Wates v JACKSON.

justice to take down every word, for then it would be neces:

deposition was taken down considered the cross immaterial. The clerk who took down the evidence said he { down everything that he considered to be material. He d take down anything of the cross-examination. Erle J. "he was of opinion that the requisites of the Statute h complied with - he had no discretion but to see that preliminary requisites had been established, and that the was examined before the justices in the presence of the acen party; that it had been taken down in writing; that the accus party had an opportunity of cross-examination, and that the examination had been taken down the matter was over in the presence of the accused, and signed by the ju

oceasion. The witness was examined in the presence of accused and the legal adviser of the accused, and they had opportunity to cross-examine. The examination had been down and signed by the justice, and it had been proved witness was too ill to attend. He did not think it the duty

to conduct the case by question and answer. The law, by way caution, had directed that the examination should be read o the accused, and the magistrate was to certify that it had b done." In my opinion, that, if I may say so with respect, correct statement of the law, and lays down the only to be required by the Judge in considering the qu admissibility. In the present case all the conditions complied with. The section itself refers to the only case in such a deposition shall not be admissible, that is, when itis pro that it was not in fact signed by the justice purporting to In my opinion, the intention of the legislature was that certificate of the justice that the evidence was taken in acco with the Statute should be conclusive evidence that the d was properly taken. Whether it is permissible in any case evidence that the witness also said something else it is not ne sary to decide. That was done in the present case, so injustice was done. The contention for the respondent amour to this, that the depositions must be taken down by a short (1) 4 Cox C.C., 243, av p. 244.

expert as not to omit anything at all of what is said, er in question or answer. I do not suppose that there exists ch shorthand writer anywhere. There is no half-way se between that and the proposition which Erle J. laid down ; which was substantially followed by Blackburn J. in 'De Vidil (1), and by Wills J. in R. v. Holloway (2).

In my opinion, therefore, the deposition was properly admitted learned Judge and the conviction should have been affirmed.

jon J. Iam of the same opinion, and it is almost unneces- to add anything. objections, on examination, resolve themselves into one upon sec. 409 of the Crimes Act 1900. It seems to me the position taken up on behalf of the accused cannot be tained unless it is shown that the document in question is deposition within the meaning of sec. 409. If it is such a ion, then, as it purports to be signed by the justice, as it s proved that the witness died, that the evidence was taken in he presence of the accused, and that she had a full opportunity oss-examination, it follows that, having regard to the first e paragraphs of sec. 409, and the third sub-section, it may be Then was it a deposition ? The contention that this nt, purporting to be a deposition taken under the circum- sworn to, is not a deposition, rests on the fact that the , With reference to one or two matters, we are not told

deposition. That contention presents insuperable difficulties )any person who endeavours to maintain it. The real objection 'tothe value of the evidence, not to its admissibility. On its 'ing in evidence that the witness did not recollect one or

ed that the deposition was not worth the paper it was tten on. It might become necessary for the party defending to that length, and it would then be for the jury to say the position was tenable. The document was clearly the n's deposition, and it was for the jury to weigh the value 9Cox C.C., 4. (2) 65 J.P., 712.

the admissibility of Mrs. Hanlon's evidence. Othe

of this criticism upon it. An objection, founded upon t failure to record every word that was said, could o argument with respect to the value, and could in no sens

single word uttered by a witness were omitted deposition, it could not be used in evidence at all. a For these reasons, and on the high authority of Hrle J. a case in which the whole cross-examination had been on nevertheless decided that he was bound to hold that the ments of the Statute had been substantially complied to allow the deposition to be read, I am of opinion that deposition was properly before the jury, and that the com should be affirmed.

Although the only point decided by the learned Judg the Supreme Court was that the document in question - inadmissible on proof that certain statements made by witness were not taken down in the deposition, Mr. B relied upon two other grounds in support of his objection. is not necessary for me to go fully into those two g they have been already dealt with. I shall only add this. first ground was that the fact of the illness of the witness it necessary to take proceedings under sec. 406 of the C Act 1900, and that, as the proceedings were not properly t under that section, the deposition was not admissible. answer to that is that, if the depositions were duly ta accordance with the provisions of sec. 409 of that Act, that cireumstances existed which would have justified their taken under sec. 406 has no bearing on their admissibilit depositions under sec. 409. 'The case of Rex v. Holloway (1) is distinct authority for that position. In that case the witne V ill. It had been intended to take the examination, which taken in the hospital, under see. 6 of 30 & 31 Viet. e. 35, corresponds to see. 406 of the Crimes Act 1900, but the formal of that section were not complied with, as the circumstances which it would have been applicable did not exist. But,

| & 12 Vict. c. 42. It was held that they were admissible.

cannot be sustained. The other objection is that to make the deposition admissible under sec. 409, it is y that there should be a formal charge in a proceeding g in a committal of the prisoner. Now, that point is sub- ally dealt with in the case of Reg. v. De Vidil (1). There s depositions were taken before a magistrate who had no diction to commit, and in fact did not commit. They were a county magistrate at Twickenham. Afterwards the risoner was brought before a magistrate at Bow Street and a committal took place. It was contended that, as the ions were not taken before the magistrate before whom committal took place, they could not be admitted under a similar to this. Blackburn J. said (2): " I am of opinion it was not intended, by the two sections referred to, to the admissibility of a deposition to the case of a person ined before the magistrate before whom the charge is ade, and who commits the prisoner for trial. The meaning of ovision in the Act is this, that when a witness may be in nt part, and too ill to travel, the magistrate or magistrates for that locality may take the examination, of course in : presence of the accused, and with the formalities enjoined, turn it to the proper quarter."

here, even if it is to be assumed that the proceedings of the ate in committing afterwards were, as Mr. Blacket con- S, unnecessary and irregular, the proceedings as to the of the depositions were regular under sec. 409, and the sitions are admissible.

emain point upon which the Judges of the Supreme Court turns upon the construction of sec. 409. That is the on upon which the whole question of admissibility depends. e is no definition of a deposition in the Crimes Act or Justices Act, but it appears to me that one would be eiped very much in the construction of sec. 409 by bearing in ind what a deposition is, and the distinction between a deposi-

ry (1) 9 Cox C.C., 4. , (2) 9 Cox C.C., 4, at p. 5.

E the deposition complied with the requirements of sec. H.C. or A.

adirect authority of Wills J., that the objection of Mr. arrorszy-

tion under sec. 409 and a statement on oath under sec, deposition under sec. 409 is a deposition taken by a mag the ordinary discharge of his duty under the Justices magistrate's duty in a committal case is to inquire wl a primé, facie case has been made out, and he is charged with duty of inquiring into all material facts necessary to enable | to come to a conclusion. It is not necessary for the ma place upon the depositions matters irrelevant to that simply because a witness chooses to state them. It mu conceded that the taking of depositions is part of the routine of administering justice, and, if it were admissible f accused person or his counsel to ask any questions he chose obtain an answer, no matter how immaterial, and it were n sary to write them all down, proceedings of this kind never end. Schedule (f) (i), to which my learned bro Justice Barton referred, as laying down a rule upon } depositions must be taken, must be read in view of the ¢ siderations I have mentioned. The form in (/) (i) contains #l direction, that the deposition is to be taken down as ni possible in the words the witness uses. The obvious that is that the words he uses in answer to inquiries by magistrate are to be put down, together with statements n of his own volition, if they have some reference to the matt before the magistrate. That is, where there is evidence admit of a committal of the accused. Sec. 406 has a differ purpose altogether. It refers to a statement which may b made by a witness before any charge has been made against an person, and without any opportunity on the part of the or his advocate of testing the witness by cross-examination. whole proceeding is founded upon the necessity of obtai record of what the person in a dying condition may say in event of a charge being afterwards made. It may be charge will afterwards be made, but if it is made, at the the inquiry no question can be raised as to whether the taken is material or not, and therefore it is that under th circumstances there must be great particularity in taking d the actual words used. The question to be decided ther depends entirely upon the construction of sec. 409. R

in that section as meaning deposition taken in the ry course of the magistrate's conduct of business in preliminary inquiries, the fact that it might afterwards ved to be used in the absence of the witness would be ld in view when the deposition was being taken. In this case, t did become necessary to use the deposition, the learned e who presided at the trial, Mr. Acting Justice Fitzhardinge, placed upon him the duty of ascertaining whether the minaries required under sec. 409 had been complied with. e was taken of the facts necessary to enable him to come -aconclusion. I think he came to a right conclusion, and uld not have come toany other. Mr. Blacket admitted that the ur should not interfere with the discretion exercised by the ive in coming to a conclusion, unless that conclusion was such could not have reasonably come to on the evidence, or was totally contrary to the evidence as to be really a misuse of his etion. Ido not think there can be any complaint of His nor's decision here. It was open to him to decide on the before him, and he decided it properly. objection really amounts to this, that the Judge had no rer to enter upon the inquiry whether the preliminaries had ncomplied with, that, as soon as the words were proved to re been omitted, it was not open to the Judge to admit the position. That involves the very broad proposition that, unless ty word said is taken down, the deposition is not admissible. Blacket of course allows that the proposition in that general not maintainable. He sought to limit it to the omission material words. But who is the judge of their materiality ? ling is one to decide whether or not the accused son ought to be committed. The proper person to decide on ity of the evidence is the magistrate. Who else is eit? Are the jury afterwards to decide it, or is the Tf upon such evidence being given the deposition inadmissible, it seems to me that it would be at the of any person, who happened to be in Court when a on of this kind was taken, to neutralize the operation of

giving evidence that some answer or question, not ' 52

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)