“Sections 222 and 223 of the Evidence Act, when read together, give the jury the amplest powers of asking questions. Section 222 reads in part as follows: “The Court or any person empowered by law to take evidence may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order or, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgement must be based upon facts declared by this Act to be relevant, and duly proved”. Section 223 reads as follows: “In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the judge, which the judge himself might put and which he considers proper.” Nevertheless it is the traditional function of a jury to decide cases on the evidence brought out before them by the contesting parties and we are of the opinion that in the exercise of his discretion to decide what questions are proper the judge should discourage a jury from asking questions other than those designed to clarify answers given to questions asked by one of the parties. Apart from the danger that a jury may step or seem to step outside its proper function, it must be borne in mind that juries are not skilled in the law of evidence and may inadvertently bring out irrelevant matters which are seriously prejudicial to one of the parties. It is true that the judge can direct a witness that he need not answer such a question, but a direction of that kind might well lead a jury to suppose that the witness had something discreditable to hide, and the mischief is done once an improper question is asked: cf. R. v. Baldwin 28 Cox C.C. 17. In our view, the only safe course is to restrict the asking of questions by a jury within the limits which we have suggested.”
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