NOT A COURT OF APPEAL.

Press, Volume LV, Issue 9986, 16 March 1898, Page 4

NOT A COURT OF APPEAL.

There is another point in connection with one of the condemned convicts which deserves serious consideration. Counsel for the prisoner in the Silverstream case has applied for leave to address the Executive Council on behalf of his client. Unless some very special reason is shown, of which we are not at present aware, we do npt think this is an application which ought to be granted. If counsel for the prisoner is allowed to address the Executive .Council, the Crowa Prosecutor may very reasonably claim the same privilege, and the..proceedings may really become a re-trial of the whole case. This is altogether opposed to constitutional ideas. Todd lays it down that in " administering " the prerogative of mercy a Governor "in Council does not act as a 11 court of appeal in criminal cases." Though he may remit a sentence he does not technically reverse it, nor by his action pronounce it wrong. The j act of pardoning a sentenced criminal j is one of pure clemency; it is no respect judicial. In Hew Zealand under the provisions of the Criminal Code, a court of appeal is set up for the purpose of retrying criminal cases/and it is to this tribunal recourse ought to have been had, if it were desired that the case should be' reargued upon questions either of law or of fact. The Goyernor-in-CouncU, as we have said,' is not a court of appeal. In administering the prerogative of pardon he has to reoeive the advice of his Ministers, and he is supposed to "consult informally those! " who could best assist his judgment." Naturally he would be guided to a large extent by the notes of the Judge who tried the case, and if he desired any other information there would be no impropriety in seeking it from either the Crown Prosecutor or, the counsel for the defence. It must be remembered, that .under our code if, upon the application for the mercy of the Crowtt on behalf of ft person convicted, the Gbvernor-iri-Counoil entertains '.a doubt, whether, such person ought to. have been con-* victed, he may instead of remitting or commoting the sentence " after such inquiry as he thinks proper " direct a new trial at such time and before such court as he may think proper. That, to our mind, supplies an additional reason why the deliberations of the Executive Council should not take the shape of a re-trial of the case by a Court of Appeal.