LAW REPORTS. COURT OF APPEAL.

Dominion, Volume 3, Issue 636, 13 October 1909, Page 11

LAW REPORTS.

COURT OF APPEAL.

WHEjRE PRISONERS DECLINE TO GIVE ■ EVIDENCE. ' f MAY A JUDGE COMMENT? Sittings of tho Court of Appeal were resumed > yesterday morning, thoir Honours Jus- „ ticos'WilUams (Aoting Chief Justice), Dennis- " ton, Edwards, Cooper, and Chapman occupying tho bench. The first case was an appeal from a decision of ll?' Justico Chapman givon daring tho last cnminal sessions. William Brown and Eichard M Cann had been charged with robbing a man named Thomas Josoph Mahon of a small Bum of money in, TaranaKi Street, on August .. 7, were found guilty, and sentenced. A qnos\j* tion arose out-of the Judge's direction to tho a case was stated by his Honour for the opinion of tho Court of Appeal The Judge said that, according to Mahon s account ho and the two accused were about togother for some timepthen one of them seized and held him (Mahon)r while tho other searched his pockdts, took dut his purse, abstra6ted money'from it, and returned ft They were followed by Mahon nnd two witnesses, and shortly afterwards arrested." They having been with Mahon, and they U . the arresting constable that they had run R '<y to get out of his company. His Honour Trent on, "I do not consider it necessary to set out tho evidence, as the jury 'believed it, and I havo no reason to feel dissatisfied Tuth tho \erdict, assuming that I did not direct the jury. The accused wero defended by Mr. Webb, who did not call them as witnesses, but addressed the jury on the the evidence as slender and unsatisfactory, as tho caso depended on the evidence of a man who was under tho mflue?cifi °A""SoJ or i and w m described by tho conTiif'i? " a " drunk." In charging tho jury, I told them that the ovidencd before them was the.iincontradicted evidence of the chief witness''hnd added- It was open to these men to contradict him. Why did they not go into tho ' °? ! i, an ° °"o so' It nas open to either or both ' ii £ SB mon ' '* had an honest answer to this man S evidence, to go into tho witness-hot t and contradict his story They had not done J!'' In<1 n< k y ? u ' ra * y ittaoh what importance you think fit to that.'You aro not bound to attach any lmnortanco to their not having given evi. denee.' bnt you are at full libcrtv to attach » Rich importance to it as yon think* it deserves. Thft prisoners wore convicted and sentenced If Section 423 of tho Crimes Act, 1908, is to be read aft binding the Judq;e. as well as tho parties, tho above is a misdirection. Tho question reserved for the opinion of tho Court of Appeal, is whether my direction is right or wrong. If it is wrong, tho conviction ought to be aua«hed" Mr. Webb appeared for appellants, and Mr. MVers for the Crown Mr. j Webb said, that during the triel of the (ipnollants, he obieotcd' to ta comment of the judge, and permission to appeal nas granted. Section 423 of tho Crimes Act, 1908, said:— IWhere a persbn charged -with'an offence refrains from giving evidence, or from ealling his wife, or her husband, as tho eaw'raav be, ps a witness, noicomment adverse to the person charged shall be allowed to be made theroon. The judge's" comment must surely carry greater, weight mth tho jury, said Mr Webb/ than any comment by tho most eminent counsel. If the judge might comment, it was etrange that counsel might not do so, 6eeiw? that tho fudge's remarks nere of so much greater weight Mr Justice Cooper In the English law, comment by tho judge is impliedly allowed, and i comment by counsel is expressly prohibig ted, so that the Legislature in, England did not think that' it would bo dangerous to the prisoner to allow a judge to cbmment. Mr.'TWebb. What is tho purpose of comment?- Surely any comment is to strengthen the 'ca.se against the acoused. The intention of s onr Legislature, r'submit -was to prevent comment of any kind Tho New South Wales t Crimes Act sets out-as the New Zealand Act does—that an acoused person is a competent, but, not a compellable witness, r-rid it shall 'nit be,lawful to comment upon 'he fact that ho*has'refrained from giving evidence on his own behalf i Mr. Chapman: Tho Now South Wales, Act is much more expressly worded Mr< Justico Denmston- It is absoluto and 6weepihg,"'and covers any comment. That is different from our statute ' Mr. JWebb The very fact of-aceuscd'-eivuig evidence might place hini in tho position of being"suspected, even if he were quite innocent of tfte> chcrge 'Formerly, .prisoners give evidence on their own behalf i Now','they can, but if they are to be virtually compelled to give evidence (and if the judge is'permitted to comment they are compelled, to give evidence), the privilege is nothing elso but a Greek gift. Mr , Justice jCooper- Yqu say it is a mockery, a delusion, and a snore I *«-.., Mr, Justice Edwards- There is no doubt that the prisoner worse off Under the new statute. , ' > < Mr. justice Denmston" Yes, counsellor the prisoner has lost the power to say, "Gentlemon') unfortunately for un, the prisoner's mouth is closed." That is what you ha\e losti'it is 'awvery great loss < Mri Justice Chapman ii It is for fie benefit of tho innocent man, an act of justice to the ■innocent man. who can explain. Mi. Wobb. Tho intention of tho Legislature is. 'while granting prisoners the privilege, to hedge them round, so that they shall not bo attacked in exercising tha* privilege ■> Mr Justico Chapman- Juries have somatomes ssked me if tho accused can give evidence When' I say, " No," they draw their own conclusions

.;■,;..;, =Mf:;;Justice : Edwards:i;.i; , have' i had- a;:caso'in f./,>.*hich i -the ;, 3ufy ( the'prisoner • 'x'yi-:-.^: :i v-'X'-. ; ■•• •;,.;/, It ! has''been iseribusly r : r4ised;,aß;'a; grievance "that;.lvasked-&unsel' ;■■•■. ;if:-:b < d'' 4 was > . going gto^wdl^evidehce.'.l^did^not : f. ,;.;Aot'<.states.-.that'.dofeiidin|!( cbiinsel:must declare ..;.;VyhetHer;he iwill-call, evidence,;and, until■ he ."■;.;^nM-:dMared,"'..theyCon'rt*:c»nnot-iprocee'd.- ; v' l i''':.:j''' .; ■ ■•;.■■•■ ,?Mr. ;'■■•*:. :, : J P : 'V. ; ;:' :: L?Mr.'fJusHce,Deuni6ton: It 13: always,:done'; ■ ~.•"-;•:I'.-hdvs- never■■joniitted'tbVd6'vit.£- : - X.V-; ■:■.:.>.; :' :'pbiht"is ;ithat:vther.e ; < was ':-v- «oirijs; r ,imp6rttmco,;to bo attri'ched"'td ; the fact, ; :■.,•.. .v poriim'en,ted?iutipn , i;by.' the; judge.-tliat tho.nc-. :;,:.: i-ousad.ctadi'aot gone: into 'the :witness-hdx.:■•'.'' X <:',:' ■-vM?;;Ju'stico.Chapman:Vll.havo'.had great diffi- '■ ■':.'.. culty.m.Boiuo cases in avoiding.comment, when . .. -.'lvhaveV.Woh.obliged: to-toll,the.; jury .the.dif:'::;M'fti!e.nce';:;betwcen: ,a?>pris6ner's .unsworn;'stater ; .-, mentjandr ; tho^ of tho prose-: '''■■■ ; .'' f u J'.?^';^-f.'" aTe come'veryrnear commenting •'•;; ; : ; c TOT?!; : , but con : ; this, occasion 11 put' it; beyond i ■.:■ iVa :idqubt^;'v::';;,;-:','vV-::'.:/:'.:.,-;.,.".;;: TJj-:,;f.v : ..-, .■'.',.•.;;.';: '*■'■:?~i' Mj«*iYebb.:' : ':.-In:out.- code, provision:is toade : •:.:■'■' '■■■■ i o ?Sftt?h;ti contingency.'as/n prisonerrefusiiig' ;;•::;.: to.alead^t^L;;-The Courtihaslpower.to;'enter' ;it^not'be absurd .'.-•:: ']U*Pf. J-???? 1 i-7«* afterwards. to:-.comment ; on'; • r^'B 0 /' , f?^.: t » at: .tnß..;acbused'.would not' plead, v;'-:-arid^thns;;imputevguilt?^,; ; -^.i.!''':'.'; '...:-' v ' '?•''.^fr.\Justice:. Chapman':.:-:That:^ -power of -en-'' '._-. :,-■, wnngv/arplea^f.'not^guilWvisl,-AvfairlyV old .- :.v^\i ta W^v- i power,:dating'"back '■:a:-.'cbupl»>.'of;.coh~.' .p:;■ - - tunfes,:-Ir/ was, sflbstitutedVfor. the -old "systomi: '? 'li?^ 1 with/water of.which.a man"-freftuently (HTi : :>^:'";.; i 'Cj ; v;>'/:;.'&'-.: ■'-.'■■"-■■i\: : i'J;-';/ ',V;..:-,,-■" ■^'^ : '''.^^fa'i-Webb^j'^Ntf;commwt;^ V-- ;; /si 81 !?.;.; is :sweeping: and' isibinding• 6h ; ■-.-. -.' v .s- ■ all -■■:-.-'-\s -.- : ..'-;--.'jy ; f ■-:"'■■' ' *■y .. - ■''-- ' K • i d^At '.' the ■ • jurisdiction % :i S^' ; 'S^ J -f* a *K:M the {■■:' ;. S% iL d 'J9 { ' ! -«P"MI3T-' prevent' the .judge, ! ; 1 ,, : -;fr6rA3»iatang ;: .comnient;:oh';ttie .faot-;tha{' tL -'' : : -:^ f^^ d^^ t 'i? l^.:6T f'^t;wasifor • "'■.,' «iS# "w? d^Wi.n P»n; the .meaning : . of' the :,:. w;. Bllpwed.by .the. Legislature or.s.tho law, -or (2) .;<:: -allowed .by'.: the -CourC i : . ■'■:}?'■<&?. '.«?'"■ meaning-'-were 'b v tha ; :; , v -;.Cour^np v xcomment \ whatsoeverf. eVei' by ; tho ■!; ;;.. .;JudgeV%ight }'v T< V * te ■ • ■■ta--- correct,: the -ffl ; '. ; :T^iH :^!nl^;' b - !;^»mt'.''taVcffl^ i. ■;-,' i "'; ": ; ' ; ;-,- '-'.V-'

AUCKLAND TRUL. RULES OF fiVIDENCITiDIIERED TO. Another case which came before the .Couit of Appeal yesterday was one reserved bj Mr ? n U a£vi Y rds a .' tho lasl crlmln » l sissions 1? A uc T? d - on Autruat 31 Charles Bolton fe»" ™S*; r o°f a 3<>nous ? Ito " cc ' nnd found tn y j %. n ? n . co was ucisned, and prisoner was admitted to bail, pending the oxpiesslon M %?P l °\ ? f tha fPP" 01 Court "garauiß an flvi'dehto M admission of certain T T ii 0 IZI ° f « er " l ™ C( ' w« argu'ed by Mr «;/»» if? v Al ": kla "?> J? 1- appellant, and by Mr Jfvors for the Crown. 6m °! «B>«ncnt, the Court decided that the evidence objooted to, had been'prcperly admitted, and upheld tho con-