THE GRAND JURY.

Press, Volume LXIX, Issue 20905, 12 July 1933, Page 16

THE GRAND JURY.

ABOLITION FAVOURED.

OPINIONS OP BARRISTERS. The opinion that the use of the grand jury in Supreme Court criminal trials was an anachronism which the Government of New Zealand should take steps to abolish by legislation as was being attempted in England at the present time, was expressed by barristers in discussing the question yesterday. Recently, as was reported by the Lond >n correspondent of "The Press" yesterday, both the Lord Chance 11 r, Lord Sankey, and the famous judge, Lord Darling, condemned the grand jury in a debate on a bill introduced in the House of Lords by the former to secure its abolition, declaring that it served no useful purpose and was a waste of money. This view, it was gathered, is also held by the general body of legal practitioners in New Zealand, and the abolition of the grand jury would be welcomed. It was contended that its survival could not be justified either legally or from the viewpoint of unnecessary expense, and that Supreme Court procedure would be better without it. Recalling the origin of the grand jury in criminal procedure, Mr C. S. Thomas said that as early as 1194 four knights were chosen from the county, and in turn they chose two other knights of each hundred, or if knights were wanting, free men, so that 12 men might answer for all matters within the hundred, including pleas of the Crown, the trial of malefactors, and other things. This was the first that was known of the grand jury. The petty jury, which was the real jury of trial, arose as an alternative to trial by ordeal, so that any person who was put forward by the grand jury was allowed to have the charge tried by ordeal or by a jury of his peers. Usefulness Outlived. "At one time no doubt the grand jury served a very useful purpose in that it was a healthy means of preventing Royal oppression," Mr Thomas said. "But this safeguard has long become unnecessary. At the present time the grand jury merely considers whether a prima facie case has been made out against an accused person. If it thinks that it has, it returns a true bill, and if not, it returns no bill, and the accused person is discharged. It really seems that in these days a grand jury is an anachronism." Before an accused person was sent to the Supreme Court for trial, his case was heard before a magistrate who was skilled in the law and in experience. He had the power to send the accused on for trial or of finding that the prosecution had not put forward a prima facie case. Thus it was difficult to understand why it should be necessary, after a case had been before a magistrate, for it to go before a grand jury for it to decide the same question that had already been decided by the magistrate, who admittedly must be more competent to judge whether a case had been made out.

"Further," Mr Thomas added, "the grand jury has the right to call all or any of the witnesses of the prosecution before it. As a criminal session in Christchurch, for instance, rarely occupies less than a week, this means that witnesses who have come from a distance have of necessity to be at the court on the first day of the session in case they are called before the grand jury. Ttiey may then have to wait until the end of the session before they are called before the common jury. This entails great inconvenience and expense to the country. Inadmissible Evidence. "Again, the evidence at criminal trials is limited by certain well-de-nned rules, the result of centuries of experience. The magistrate holds his preliminary enquiry according to these rules. But there is nothing to prevent a grand jury asking for and obtaining evidence which should not be before it As a result a no bill finding might be wrongly given. "Naturally, legal men are conservative, and one feels that the only argument that can be adduced in favour of grand juries is that they survive according to tradition. They serve no useful purpose, and the number of no bills found by them at the present day is inflnitessimaL"

The opinion was expressed by Mr Roy Twyneham that it would be an excellent move, and one that would be welcomed by the general body of legal practitioners in New Zealand if legislation were introduced to abolish the grand jury in this country. As far as he knew the legal profession as a whole regarded the grand jury as an anachronism resulting in useless expense and useless inconvenience to men whose time could be better occupied in other directions than serving on a grand jury. Judging the Magistrate.

"Magistrates and justices of the peace hearing a charge in the lower court are, for the most part, men who are specially skilled in determining whether a prima facie case exists against an accused person," Mr Twyneham said. "Thus if the grand jury finds no bill, it really determines that the magistrate or justices who forwarded the case to the Supreme Court have made a mistake. This judgment is the concensus of opinion of 23 laymen in opposition to the decision of specially trained and skilled officers of the court. "Then again an accused person is put to the expense of preparing a case for triad only to find that this expense was needless if the grand jury finds no bill. I cannot see that any good purpose is served at all by the grand jury. My experience is that the men who make up the personnel of a grand jury recognise that they should not be called upon to determine the issues before them."