RIGHT OF NEW TRIAL

Dominion, Volume 18, Issue 54, 28 November 1923, Page 11

RIGHT OF NEW TRIAL

WHEN JURY DISAGREES

THE COURT’S DISCRETION

Interesting references to tho law on the subject of new trials were made by His Honour Mr. Justice Salmond, when delivering a reserved judgment in the Supreme Court on Monday. The action to which it plated was one lor damages by Charles Stevens against Florence and Harry Parker for alleged fraudulent misrepresentation respecting the sale of a house. At tho trial tho jury had found in favour of defendant Florence Parkin, but disagreed as to tho liability of her husband. Plaintiff moved lor a new trial as against Harry Parkin, under section 154 of the Juries Act, 1908, in consequence of tho disagreement of the jury, but this was opposed by Parkin, on the ground that the jurisdiction conferred by tho Juries Act was discretionary, and that such discretion should not be exercised in favour of plaintiff in view of the unsatisfactory nature of the case. “It is time,” said His Honour, “that section 154, if read literally and without regard to tha context and the subject matter, apparently authorises the Court to refuse an order for a second trial on the discharge of a jury because of disagreement. Tho preceding section (153) authorises tho Court to discharge a jury which fails to agree within a period of four hours.” There was apparently uo similar legislation in England, said His Honour, after quoting tho source 1 of the present provisions, the matter being there dealt with, at common law. The common law as to tfie power of discharging a jury for disagreement and as to the effect of such a discharge was a matter of some uncertainty at least in criminal cases, until settled by such cases as Rex v. Charlesworth (1861), "Winsor v. Tho Queen (1866). By these cases it was settled that such a power existed, and that the discharge of a jury was not equivalent to an acquittal so as to preclude a new trial. The opposite conclusion had been reached by tho Irish Court of Queen’s Bench in 1845. The purpose of the New Zealand legislation was to reduce the common law on this point to the form of express statutory provisions and to define the minimum period of deliberation (12 hours under the Act of 1808. reduced to four hours by the Juries Amendment Act, 1898), which must precede the discharge of a jury. “Although section 151 of the Juries Act, 1908, provides that on the discharge of a jury another trial may take place ‘if at the time of such discharge the Court thinks fit so to order,’ and, therefore, if read literally, commits a new trial to the discretion of tho Court,”, continued His Honour, “I cannot think that this is the true meaning and .effect of tho Act. ... I think, on the contrary, that in civil cases, if the jury disagrees and is discharged, the plaintiff is entitled as of right to prosecute, his action and have the matter determined at a second trial before another jury, and that the Court has no authority to render the proceedings abortive by refusing an order for a new trial. . . . Similarly, in a criminal case, -f tho jury disagrees and is discharged, I think that the prosecutor is entitled as of right to one or more further trials until a verdict has been obtained or until the Attorney-General chooses to exercise his statutory authority to enter a stay of proceedings under secion 435 of the Crimes Act, 1908, and that this Court has itself no authority to stay tho proceedings by refusing an order for a new trial. . . . The discretion conferred on the Court tn respect of a new trial is a discretion as to the time at which the trial is to take place . . . but there is not any discretion to determine whether there shall be a new trial or not . . . Section 154 of the Juries Act, though capable of a wider interpretation it read by itself, must be read in conjunction’ with section 153, which confers the power of discharging the IU His'Honour was of opinion that plaintiff was entitled to a second trial, and made an order accordingly;.. Mr. P .H. Pntnam appeared for plaintiff, and Messrs. H. H. Cornish and O. C. Mazengarb for defendants.