THE LAW OF EVIDENCE.

Wairarapa Daily Times, Volume XV, Issue 4520, 11 September 1893, Page 3

THE LAW OF EVIDENCE.

Tho two McGovern trials have (says tlio N.Z. Times) thrown aninI teresting light on that part of the law of evidence which we owe to a too simple veneration for everything American, Of these trials tho first is chiefly noieworthy as marking the tendency sometimes observable in juries to incurable grossness or stupidity. Tho only thing left for us to wonder about in this caw is bow one sensible man managed to get amongst tiiem. Had that been prevented, the jury might havo not only acquitted the prisnnor, but added a rider to their veidict recommending the presentation of a testimonial for her distinguished services. Thai would not have bten more eurpiiaiug than the failure to arrive at a verdict, This, however, is a questlion rather of humanity than law As even the Legislative cannot undortake to change the humanity of- which juries ate composed, theo.'|y thing to he done is to shrug shoulders and pass on.

The significance of the second triaf n confined entirely to the state of the law of evidence, Its story is not ut little remarkable, The prinoipal witness would not say a word; would not allow her doctor, who saved her from the offeots of an evil thing, to say a word; defied the Judge, the jury, the Orown Prosecutor, the faotß, the morality, tho everything of the case. She was safe under the shelter of an idiotic statute, The idiotic statute provides aa follows : 'The following confessions and 00mmu......1i0ns shall be privileged and shall not be admissible ineviI dence in any civil or criminal proceedings, except with the express consent |of the persons alleged to have made such confessions or communication,

' (a) All communications mado to 'a minister of religion, do,, etc, (b) All communications made to a physician or Burgeon in his professional character by any of his patients, and the. word communication herein shall include all information acquired necessary to enable such physician to prescribe, or such eurgeon to do any act for such patient.- ' Provided that nothing in this sec I lion shall protect any communication made for a criminal purpose, or to prejudice tho right to give in evidence, or use any statements or representations already made, or which hereafter may bo mado by any such physician or surgeon in or about the' euVing by any person of on the life of himßelt or awher pirsOn.' Against the first ot the sections -' viz, section (a)— nothing can be said, It deals with mutters which, lying entirely between individuals end 'theirconsoieucesj areriocoiiCern nfsboiety'B. But the Bwnd'section tjealsv.wtii

mat-tors not lying entirely.. het^t'ori' individuals had their conscience, witli which society is very much con> corned. The proviso admits tlmt in : the case of one particular. 0111116: a very atrOi'ioiw crime, we' admit, 'the crime of defrauding an insurance company by deliberate niurdor—there sfanll be 110 protection.. Therein lies one of the absurdities of the section, tor there is uo reason why all crimes should riot be treated alike. '.There aro, of course, many kinds of information given to niedioul men, which, not involving crime of any kind, ought to ;ho confix dential. The section is very properly intended to protect such communications. But when crime is involyedj protection is fundamentally wrong, The McGuvern case provos tlmt clearly enough, Here n medical man was sent for m an emergency; he saw'for himself that something was wrong; but because his patient gave him the history of her case his mouth was ringed. The result is that information of vital concern, acquired by independent diagnosis, is lost to justice by the operation of an ill-considered statute. It follows that the law for the improvement of the law of evidence has become a law for eeouiing impunity to crime. The Victorian Legislature perceived the weakness of the American statute in this particular, andkiore adopting it amended it by excepting from the operation of section (b) all matters involving crimi'S of any kind. Tho sooner our Legislature follows that example the better. The delay of a single day in the amendment of a statute which produces miscarriages of justice is unendurable,