JUDGMENTS DELIVERED.

Dominion, Volume 3, Issue 799, 23 April 1910, Page 3

JUDGMENTS DELIVERED.

THE CHIEF JUSTICE. AH members of '■'. the Court delivered oral - judgments. ''..'..'.. ''■'■ :. : The Chief Justice' said: that in his opinion the Court should refuse leave to appeal, but as there. was a richt to go to' the Privy Council to ask for leave, his Honour- considered that the person who was now asking, for leave, 'should,.-be unembarrassed by, anything, that'might he said/by the Court, and that the Privy Council should . have power to deal with the matter as if this motion had not-been made. In his Honour's opinion the-'case could not come under Rule 2a'. That had been his original'.conviction;, and his opinion had been confirmed 'by . a. perusal, of some , English authorities; and Jby hearing the argument-of the- Solicitor-Gen., oral. This ..could iiot be said . to be a "claim or question-, to: or respecting V}°perty." The; -motion for"- prohibitionhad \been brought to:prevent a Court, sitting. for .the triaL of ■ a criminal mat ter, from proceeding ilwith the hearing! Nor was the case connected with any. "civil right/'.-siich: as>.was spoken of by writers on : jurisprudence... There was no civ.ilvright involved. -The question was whether a" man"was guilty or not guilty of7an;offence with which' he was charged.- : Under' Rule -2b, what the Court had to consider was whether the question involved, in the. case was one in which an appeal should be granted'by reason"of great' general or public importance.: His. Honour did not consider-that this was a. case of "great goneral or 'public importance." Admrtteply, the.question was. one which had hot been raised in New Zealandpreviously, and seeing that Courts had been in existence for over 70 years , , in the country, it. was; obviously not a matter of 'public importance, or. .it would have been' raised "in'the' past. His Honour .'was;of'opinion, that the matter was a criminal one. ..In .substance; it was an appeal to control the procedure in a criminal matter by ■ a criminal court , . -That was' thefroot of 'the, whole' question,, of.prohibition. .If only the form, arid.not the substance, of a case were-looked; at, every criminal ma'tter}could.be sent to the Privy Council. An-action--for prohibition might be started in.every criminal matter . thajt came before the court, '.-. and point& : might-be 'raised' similar' to' 'those in the-present case.- ;In this way, criminal matters ( might be : delayed and hung-up, perhaps," for years. -His Honour did not- 'consider that the court should use' the power which Rule 2b gaye.it discretion, to use, for-, lio thought that this was..not. a case- in which Dhe Privy Council should interfere. However ; that was for the Privy Council to decide,' not" for his Honour to say. His Honour was of opinion khat the plaintiffs should be unembarrassed by anything he ori the other members of tho court might say, and the application could go to. the Privy Council as if the Court of Appeal had given no decision on tho matter. "But, eo far as 'I can see," added the Chief Justice, "I do not .think that this is a case in which we can grant leave to appeal either, under-:Rule aor b." .

MR. JUSTICE WILLIAMS. Mr. Justice Williams concurred with this opinion. The effect of the judgment, said his Honour, was to render the plaintiffs liable to be fined in a criminal proceeding. He ( did not think that that was a "claim or question to or respecting property," nor could'it be aaid to be a "civil right" within the jae&Wii -t& eab-flectioa a. The words ** '

"civil right,"" as used there, were .to'be •' ] construed with reference to the recog- I nised practice of the Privy Council;; not. ■ 1 ,to interfere in criminal matters. Nor ' .i did his Honour think that-the. court. , 1 should exercise the discretion which it ' was given under paragraph b. Ac- .. cording to his view, this was an ob- t jection to the jurisdiction of the mag- : : ] istrate, and, if the petition were sus- '■''! tained, it would go to the validity o£ ,:. ,\j the proceedings, there was a distinc- ;; ..';j tion between a case of that kind anc! '■ ■ \ a nappeal on the merits from the. deci- -'■'■ I sipn of a criminal court. At the same .'! time, his Honour could not see that '■ ~\ this case was one of great general or. -.'■'.- i public importance, on which point tha j court liad to be satisfied before exercis- - ing the. . discretion referred to in '_•'■'. paragraph b. A material-element to be-..'.,;.!; considered, as to whether , the discre- '"■ ', tion should be exercised, was whether -';■■. i the court had any reasonable doubt as ■"j to the accuracy iof its decision. If the _' \ court did not consider that .tie case .'">■( was one which might fairly be, argued i again beforo some other tribunal,at- ..-',•'-'1 though that might not be itself a r?a- f \ ; j son for refusing leave to appeal/it wag ■' .-.{ certainh an element it consideratioE' -.' j as to whether- leave to appeal should be i granted. He agreed with the Chief ■ j Justice that the court; should leave it "••'• 1 for the Privy Council to decide, and. . . j this would not place any hardship upon .y\ the'plaintiffs.. . ..'■.-' '■ '! ' MR. JUSTICE EDWARDS. j Mr.. Justice Edwards agreed with the ! opinions expressed by his fellow judges, i .;■"-] He considered that the question in-' "j volved in the.case was not as to pro- ■ ■-'•; perty, but as to the liability of pfain- ■! i tiffs to pay a fine if the magistrate : j should decide the. facts' against them. . '. . .] Clearly it did not come under' either, S of the rules quoted. The case was of.-' v> no public importance; it wasi of no 1 importance to people who honestly paid '■ ..y! their taxes. The matter was one which, ..., j in his Honour's opinion, ought to.be ■ • ; left to the Judicial Committee to de-r ■ -.-■! termine according to its own rules. , ... A The .Court.of Appeal should not fetter.■'••: '• the-higher authority—if that were ! sible—by granting leave now. No hard- ; , • ■•' ship could result to the plaintiffs. by;, -j taking that course,-, inasmuch as Mr.' , ■ i Skerrett; admitted^'that, in the' Do-. . ; | minion, .criminal proceedings would. . H not: be. stayed -by the granting •of spe- ■ ■: j cial leave. The matter of their having CJ to pay greater . costs should have no .'. j effect upon the decision of the Court of'. ! Appeal. ■"■ ;-■ . ■■■!■■■' ■■;■' ' ■ '' ■ j ■"' MR. JUSTICE CHAPMAN. ; ■Mr. Justice Chapman said that the '■ .'•{ case did 'not'come within, sub-section , ; ~ J a, which' was widely worded. ' If it ;'! j could be said, that the.decision in this.,-.■'■■, j case, heard before- the magistrate,, in-;' : : .1 volyed "directly, or .indirectly some' ,; ; .j claim or question to or! respecting pro- -.;■.'j perty," the.same thing might be said!. ; 1 iii an ordinary conviction for felony. - : ! -'\ The reference in the rule to "ciyifi... .' right" meant the civil right which in-. \i volved, say, legitimacy) or - the dis-: ••■ ■ { closure of: an ofSce in many other , 3;.' matters, but not a matter of this sort.' ;: -.J As to sub-section b, his Honour ! was ! N j unable to say that this, was a matter. ;' • . j of public importance; This was a mat- : . ■■-. j ter of importance.only, to the individual ' - ■ and the role distinguished, clearly! be-, : , J tween the two matters. He agreed with .> '"', the. judgment of the other members' oJ J ! -:•-! tho court. . -I The application for, leave.to' appeal-- V ] wae ■ accordingly refused, . with five : - ' j guineas, costs. ' ■ • :..-■.. -•■■ '<:■ \