I move amendment No. 15:—
In sub-section (2) line 58, to delete all words after the word "consent".
This amendment has been put down by me in an effort to cure what I regard as a most objectionable section, under which, for the first time, a change is being made in the degree of proof required of the State on the trial of an indictable offence. We are now providing for the first time, that in the case of illness or insanity of a witness who gave evidence at the preliminary hearing before the district justice, a deposition made by him may be put in evidence and read to the jury. On the Second Reading of the Bill, objection was voiced in this House to this section. Considerable objections were made to it. We are providing for the first time that where punishment is going to be meted out in the event of conviction on a citizen in a criminal case a degree of proof far less than would be required in a civil action by a person suing for a debt is now going to be permitted. As the law stands at present, if a person sues in the District Court for the recovery of a debt of £5 or £10 and had as proof of his case a witness, say, named John Jones, got a decree and an appeal was brought, if John Jones was not available in the Circuit Court, well it would be just too bad for the person suing for the debt because his case would be dismissed.
Here, however, if the offence was an indictable one and John Jones gave evidence before the district justice at the trial, in the event of the illness of John Jones his deposition made in the District Court can be put in and treated as evidence before the jury. That, in my opinion, is objectionable. I can see no grounds in favour of it. I appreciate that it has been introduced by reason of an unfortunate accident which took place some 18 months ago to a technical State witness, and that that was the occasion which prompted its introduction into the Bill. In the case of a number of trials some 12 months ago it was found that an expert witness who gave evidence on deposition was not available and would not be available for some months. For that reason a number of trials had to be delayed. That was very exceptional. It seems to me that that occasion has been availed of to introduce a most alarming change in our criminal law. I think this is something we should carefully examine.
The Minister, in meeting some of the objections to this section, said that it is intended to cover only technical witnesses, such as a mapper who has proved a map in the District Court. That may be the pious hope of the Minister and the Department, but let no one think that that is the way it will be utilised. The section is wide enough to cover any witness, no matter how important or damning or wide his evidence may be. There is nothing in the section that says it shall apply only to witnesses giving formal evidence. The section is sufficiently wide to cover any witness. If it were intended to cover a technical witness, such as a mapper, there would be no need for it, because a new mapper can always be obtained; notice of his evidence can be served on the defendant under our existing law, and his evidence would be admissible.
The Minister mentioned a doctor as a technical witness. It is my opinion, as a practitioner in the courts, that it is very rarely a doctor can be regarded as a formal witness. In most cases of a criminal nature a doctor gives evidence either to prove a death or particular injuries inflicted on a person. Medical evidence in a lot of these cases is vital evidence, evidence that must be produced by the State in order to secure a conviction. Is it suggested, where there is such vital evidence, that when a doctor is not available for the trial his deposition can just be thrown in as formal proof?
We all appreciate, with regard to the conduct of a preliminary investigation before a district justice, that the ordinary course taken by those appearing for accused persons is to see that the investigation is properly carried out by the prosecuting authorities in fulfilment of their statutory obligations to see whether or not, on the evidence available, there is a prima facie case. In most cases it is considered wise not to disturb the evidence given by witnesses by means of cross-examination, or to go into a serious examination, from a defence point of view, of the evidence given. It is prudent and proper in the interest of the accused person to follow that course. It is right, because it ensures that no injustice is done, such as might take place if a witness were given a second chance to cure faulty evidence. For that reason it is a prudent practice not to cross-examine witnesses who give evidence in the District Court.
Under this section a person appearing in the District Court will have to consider certain aspects. First of all, he will have to get a medical certificate concerning the health of a witness giving evidence for the State. He will have to satisfy himself that the witness is healthy and that he is likely to be at the trial. If he is not, they would say: "We better cross-examine him now." There is that type of dilemma that will be created by this section—and there are other considerations, too. I cannot see any justification for it.
While I appreciate the reason given by the Minister on the Second Reading as to why this section should be inserted, and while it is my guess that it has been introduced by reason of the accident to a State witness some time ago—an accident which delayed certain trials—I still think that the amendment I have suggested is the very furthest we should go at this stage. It is an amendment which, if accepted, would mean that where a witness is insane or ill at the time of trial, his deposition may be used in evidence only with the consent of the accused person. It was urged that the case I mentioned, which delayed certain trials some 12 months ago, caused hardship and embarrassment to accused persons who desired to have the depositions of that witness admitted in evidence. The trial judge being unable to do it, certain embarrassment was caused. If that is the case that is being made for this section, I think we should provide merely for that and no other; we should provide that such a deposition can be used only with the consent of the accused person.
I appreciate that the section is intended to cover three contingencies —the death, the insanity or the illness of the deponent. It is true that death is already covered in our criminal practice. But death compared with illness among witnesses is of such a rare occurrence as to be unlikely to raise serious objection.