COURT'S DUTY.

Auckland Star, Volume LXIV, Issue 30, 6 February 1933, Page 5

COURT'S DUTY.

CRIMINAL APPEALS.

COMMENT BY JUDGE. ERRORS AND CONSEQUENCES. (By Telegraph.—Press Association.) WELLINGTON, this day. In giving his judgment, as a member of the Court Of Appeal, on the case of Edward Tarrant, Mr. Justice Ostler said: "I should like, in conclusion, to say a word on some observations which fell from the. learned Chief Justice during the course of the hearing, with which I found it impossible to agree. He expressed the opinion that if it were shown that an error was committed by the trial judge, which might have caused a miscarriage of justice, but that the error was not one of law, with which this Court has jurisdiction to deal, it should refrain from expressing any opinion on the justice of the verdict, or even from stating thait a mistake had been made. "I cannot help thinking it would be very unfortunate if the Court of Appeal should establish such a precedent. In my opinion it is the duty of the Court, if it tliinks such an error has been committed, and that the error lias caused, or even might have caused, a miscarriage of justice, to say so plainly, and even to make a recommendation as to the course which it ought to be followed to remedy the injustice which has or might have been caused. Happily there is a precedent for this view; that is what was done by the Court of Appeal in Rex v. Johnstone, 1931 (G.L.R., 565). In that case a recommendation was made orally when the judgment wae delivered, and it does not appear in the report of the case. • "I shall always consider it my duty, as a judge sitting in a criminal case in the Court of Appealj if I think an injustice has or might have been done, to draw attention to it, even if the Court has no jurisdiction to remedy it. In my opinion it is equally the duty of the Court, if it comes to the conclusion that no error has been committed by the trial judge, or if an error has been committed, and that error could not possibly have caused a miscarriage of justice, to say so plainly. "In this case I have come to the conclusion that no error was committed by the learned trial judge, and there to no validity in the contention that there was or might have been a miscarriage of justice."