REG. v. THOMAS GALVIN 1865. Evidence Deposition Caption. on the point whether the heading in the Act must be given. Wilde, C. J., in delivering judgment, said: "The objection is, not that the evidence as set forth in the examination did not sufficiently appear to relate to the charge upon which the prisoner was AND OTHERS. being tried, so as to warn and apprise her of the matter to which her cross-examination should be directed, but only that the title of the examination did not with sufficient distinctness state the charge against her. The title of the deposition states the occasion of its being taken, and the matters to which it refers, and there is no authority requiring any title, or, as it is called, caption, to the examination; and it is sufficient if it be described as the examination of the witness, and that the evidence referred to the charge upon which the prisoner may be upon his trial." He took that to be a clear authority on the first objection. But it was said that this case of Reg. v. Langbridge was at variance with Reg. v. Newton. It appeared to him, on reading this latter case, that the real objection to the document in it was that it was not signed by a magistrate at all. The statement of the case showed that the real caption, the signature of the magistrate, was wanting in that case. The report contained an observation by Hill, J., that "the statute 11 & 12 Vict. c. 42, s. 17, authorises taking depositions in a particular way, and unless it appears upon the caption that the prisoners are charged with an indictable offence, you cannot eke that out by parol evidence." He had pointed out the section of the English Act corresponding with the 36th section of ours, and he thought it would be unjust to Hill, J., to say that he was responsible for everything he was made to say in a report which he did not see. He thought the only true caption was found in this case, and the want of a heading was dispensed with by sect. 36. The other objection had more substance; it was that the prisoner did not hear the charge against him till he heard it from the lips of the witness. If this meant anything, it meant that the judge was to state in his own language to the prisoner the charge against him, and that no matter how clear it might be, as in this case, that he did know from the mouth of the accuser the charge against him, yet from the want of compliance with this rigid formula the deposition is bad. Of course the judges were all agreed that the essence of the deposition was the presence of the accused, and the opportunity of cross-examination. The question was, what were the methods for attaining this? What was it that the Act of Parliament required? The requirements were comprised in two sentencesfirst, that the party should be at liberty to cross-examine; secondly, that he should have an opportunity of doing so. It must be conceded that if he did not know the nature of the charge against him at the time of the cross-examination, he had not an opportunity of doing it. On the other hand, if he knew it, he had so far the opportunity. What was the time for cross-examining? Not till the direct examination was closed. If when it was closed he had before him in the plain language of his accuser the nature REG. で。 THOMAS GALVIN AND OTHERS. 1865. Evidence DepositionCaption. of the charge which was made against him, he had all the knowledge necessary to enable him to cross-examine. There was nothing in the Act requiring the justice to state the nature of the charge at all. It might be said that it would be more regular that the justice should state it. All he could say was, that the statute did not require that; provided that the party had the knowledge of the nature of the charge against him, the statute made no difference between his getting the knowledge from the mouth of the witness or the mouth of the justice. This construction was very strongly aided by the second clause of the 14th section, which was in these words: "Whenever the examination of the witnesses on the part of the prosecution shall have been completed, the justice or one of the justices present shall (without requiring the attendance of the witnesses) read or cause to be read to the person accused the several depositions, and then take down in writing the statement (A c.) of such person (having first cautioned him that he is not obliged to say anything unless he desires to do so, but that whatever he does say will be taken down in writing, and may be given in evidence against him on his trial); and whatever statement the said person shall then make in answer to the charge shall, when taken down in writing, be read over to him, and shall be signed by the said justice or one of the justices present, and shall be transmitted to the clerk of the Crown or peace, as the case may be, along with the depositions, and afterwards, upon the trial, may, if necessary, and if so signed, be given in evidence against the person accused, without further proof thereof, unless it shall be proved that it was not signed by the justice purporting to sign the same." This he read as showing that in the contemplation of the Legislature the charge was the deposition, and that on the first occasion on which the justice was called on to put the charge to the accused, the method prescribed was by reading the depositions. Reading to him the depositions was the charge. It appeared to him that taking the two clauses together, the matter that the Legislature contemplated was thisthe justice was first to satisfy himself that the party was before him charged with an indictable offence; then, as jurisdiction to take evidence was founded, he should go on to take evidence. These two were all the requirements pointed out by the first part of the section. He was then to proceed to the second part of his duty, that of interrogating the prisoner, which he was to do by reading to him the depositions of the witnesses, and asking him whether he had anything to say to that charge, and quite in conformity with that was the language of Wilde, C. J., in Reg. v. Langbridge, as it showed clearly that his view was what he (Christian, J.) had been endeavouring to express, that whether the prisoner was to learn the charge for the purpose of crossexamination, or for his own examination, it was from the language of the witness, and not from that of the justice, that he was to learn it. Wilde, C. J., referred merely as an additional circumstance to the fact that the prisoner had been informed of the REG. V. THOMAS charge against her by the committing justice. For these reasons his Lordship thought that the deposition ought to have been received, and that the conviction should be affirmed. GALVIN 1865. Evidence Deposition Caption. PIGOTT, C. B., said he supposed he ought to rejoice that he AND OTHERS. was about to restore the balance which, as Christian, J., had said, had been so often disturbed in this case. In his opinion this deposition ought not to be received. He concurred not only in the opinion of Fitzgerald, B., but also in the proposition to which he inclined; and he was also of opinon that not only was it essential that the prisoner should be apprised by something extrinsic to the evidence of the charge against him, but also that the fact of such a charge having been made independently of the evidence should appear on the face of the deposition. With respect to the expression which had been used throughout the argument, and which, he thought, was a loose expression-he meant the term "caption"—he rather believed that the expression arose from the use of the phrase as applied to the commencement of indictments at quarter sessions; the object was to show the existence of jurisdiction to do the acts, and he should use the expression in that loose popular sense, and treat it simply as that part of the deposition which showed what was asked with reference to the individual against whom the deposition was sought to be read, and which gave jurisdiction to the magistrate. In any view that might be taken of the case, this was plain, that unless a person was charged with a criminal offence, a justice of the peace had no jurisdiction to receive evidence on oath against him. But without going into the former history of the law, he should just for a very few moments advert to what he thought useful to this question, the words by which the Legislature seemed to him, not in one clause only, or one form, but in several portions of the Act of Parliament, to indicate their intention with respect to the very subject now before the Court. It had been during a portion of the discussion suggested that great difficulty would exist in complying with a requirement that the magistrate should state in terms the charge on which the party was brought before him, and that might be extracted from the evidence. He thought that the Legislature had acted as if such an apprehension was groundless, and ought not to prevail. In several parts of the statute the Legislature contemplated the absolute necessity of indicating what the charge was against the prisoner, and indicated in precisely the same terms as where it was said to be impossible to execute what the Legislature directed. He turned to the sections 13, par. 6, and 16, par. 1, providing for witnesses and parties charged with indictable offences respectively being bound by recognisance to appear at the trial, and on referring to the form of recognisance C. given in the schedule to the Act, he found that in the recognisance the cause of complaint was to be stated, and that, in the case of prosecutors and witnesses, the obligation was to attend the Court, and there "to prefer (or prosecute, or give evidence upon) a bill of indictment against the said C.D. for REG. v. THOMAS 1865. Evidence Deposition Caption. the said offence," and that in the case of the party charged the obligation was to surrender himself, "and plead to any indictment found against him for said offence, and take his trial for the same." AND OTHERS. So in respect to the examination of the party accused, the form (A c.) given in that case indicated in the same manner that the document which the magistrate was to sign as the statement of the accused was to be preceded by a statement of the charge. But there was another part of the statute which furnished a conclusive answer; for in the 11th section it was enacted that "in all cases of indictable crimes and offences (where an information that any person has committed the same shall have been taken in writing and on oath) the justice shall issue a warrant (B b.) to arrest and bring such person before him or some other justice of the said county, to answer to the complaint made in the information; or if he shall think that the ends of justice would be thereby sufficiently answered, it shall be lawful for him, instead of issuing such warrant, to issue a summons in the first instance to such person, requiring him to appear and answer to the said complaint." That seemed to place upon the magistrate an obligation to state in the summons the substance of the charge. He referred to these passages of the Act, to show that the Legislature contemplated that a statement of the charge should be made in every case. Now, coming to the 14th section, he confessed that he could not give to the words "in every case where any person shall appear or be brought before any justice or justices charged with any indictable crime or offence" any meaning but this, that the jurisdiction of the magistrate should be exercised only where the prisoner stood charged with a criminal offence, and that by those words he must understand that the prisoner himself had that charge communicated to him. What succeeded in that section was a description of what was to be done in his presence; "such justice or justices, before committing such person for trial, or admitting him to bail, shall, in the presence of such person, who shall be at liberty to put questions to any witness produced against him, take the depositions (A b.) on oath and in writing of those who shall know the facts of the case, and such deposition shall be read over to, and signed respectively by, the witnesses who shall have been so examined, and shall also be signed by the justice or one of the justices who shall take the same." The Legislature evidently intended that the prisoner should be apprised of the charge. The first form in the schedule was that of an information, which was preceded by no such inducement as that given in the form of a deposition of a witness, because it preceded the presence of the prisoner, and everything but the issuing of the warrant; but when the thing called a deposition of a witness, and so described in the schedule, came to be given, the Legislature in the form which it gave used the words, "the deposition of X. Y. of M. N., taken in the presence and hearing of C.D., who stands charged that." How would that be read in common parlance? A person "stands charged with REG. V. THOMAS GALVIN 1865. Caption. an offence." That implied that to himself the charge was made that he was guilty of the particular offence. So in the form of statement of the accused (A c.) the inducement was "a charge having been made against C. D. before the undersigned justice AND OTHERS. that." Here there was no statement of evidence, nothing that had fallen from the lips of the witness, nothing but the statement "a charge having been made." What was the plain meaning of all Evidencethat? This examination of the prisoner, just as the examination of Depositionthe witness, was all stated as a transaction happening at the time, and what was most important with reference to the case before the Court, as recording what was done before the magistrate. It was perfectly true that the reading of the charge was not contained in the form of the deposition of a witness, but he was using the examination of the prisoner for the purpose of showing that in the passage corresponding with that in the deposition precisely the same expressions were used. Sect. 35 of the Act seemed also to him to remove all reasonable ground of doubt as to what the Legislature meant. After enacting that the forms in the schedule should be deemed good, valid, and sufficient in law, and should be the proper forms to be used, it went on to say, "but no departure from any of the said first-mentioned forms, or omission of any of the particulars required thereby, or use of any other words than those indicated in such forms, shall vitiate or make void the proceeding or matter to which the same shall relate, if the form used be otherwise sufficient in substance and effect, and the words used clearly express the meaning of the person who shall use the same." In his judgment these expressions, "if the form used be otherwise sufficient in substance and effect," clearly showed that in each part of the form there was something substantial and effective; the mere form might be changed, but from that which the form was intended to convey, there was no power to depart. It appeared to him to be impossible to hold that the statement in the form of deposition that the prisoner "stands charged" was not a necessary part of the deposition. Upon that view of the Act of Parliament it appeared to him that whatever might be the consequence the Act of Parliament prescribed the necessity of having its requirements complied with, and that unless that was done the deposition could not be read. With respect to Reg. v. Langbridge he would feel bound to treat it with respect. It was, however, a decision on another Act which did not contain the words which were in this one. It was not the same with that upon which the other judges decided; it was made immediately after the passing of the Act of Parliament. With respect to Reg. v. Newton, in the first place he regarded it as a very clearly-reported, wellestablished statement of the decision of the judge, and his reason for saying that was this, that Mr. Foster, who was responsible for the report on this case, was himself engaged in it, and engaged as prosecuting counsel, and it was he who argued the question as to the caption. We had therefore a member of the Bar conducting the prosecution, raising the objection, and receiving the decision of |