ABOLITION OF GRAND JURIES

Dominion, Volume 30, Issue 264, 4 August 1937, Page 10

ABOLITION OF GRAND JURIES

“Law Journal” Comment PROPOSAL WORTHY OF CONSIDERATION Abolition of grand juries is the subject of editorial comment iu tlie August issue of flic “New Zealand Law Journal,” which discusses a number of reasons why the change should be made in New Zealand, as it has been made in other countries, and states that members of tlie profession would welcome file abolition if the system that requires a grand jury were replaced with another just procedure. “Tlie proposal is worthy of consideration,” the article states. “In this age of law reform, which has the substantial backing of the legal profession as a whole, antiquated legal fictions are being abolished by statute,” states the, journal, legal doctrines that have outlived their -usefulness are going, and ancient institutions must stand the test of practical efficiency in the cause of justice if they are to survive. Can the grand jury measure up to the test? Members of the legal profession will agree that antiquity alone is no recommendation of an institution if it has outlived its value, and so long as they are convinced that, if the grand jury be abolished in this country, as it has been in England, it will be replaced by a procedure whicli makes certain not only that justice will be done, but that it will be plainly seen and known to be done, we think the change would have their cordial approval and support.

England’s Precedent. The journal points out _ that the grand jury was abolished in England in 1933, and since then there has been no suggestion that it should be reiustituted. ..The ..system has never been part, of the law of Scotland, and in Australia it is unknown. In various parts of New Zealand grand juries themselves have advocated the abolition of the system, in presentments made to presiding judges, chiefly on the score of their observation of a lack of utility in the grand jury’s consideration of bills of indictment and of the waste of time devoted to them. The question has been raised in I arliament and the Press, the case bein a based, to a great extent, on the expense of assembling Crown witnesses on the first day of the session and the occupation of the time of members ot the mercantile community while they serve on the grand jury. The Law Journal” states, however, that if the grand jury is an effective part of the administration of justice and a safeguard of the liberty of the subject expense should not be considered. “Without hazarding any guess as to future political changes in this country, we are of opinion that should tlie law ever become the final protection against bureaucratic oppression or violation o the Constitution, a strong and independent judiciary will be a surer than any jury, grand or otheiwise. / Such a judiciary we have, and aic likely to have,” the journal states after giving a history ot the A aut jury and mentioning that its functions are performed in the various Australian States by the Attorney-General, the Solicitor-General, or a person they appoint. Ability of Magistrates. “The plea that the grand jury is a safeguard for the liberty of the subject may have been well-founded in a bygone age,” continues the article. it may be that, in some isolated instances in recent times, accused persons have been committed for trial- although th evidence on the depositions did not dis- . close the commission of a crime, or was of such a nature as to be insufficient to warrant committal. The answer, we think, it that every indictable cbaige should be heard before a stipendiinj ' magistrate. Surely an accused person ; will get more careful consideration from the present-day magistrate, whfi ’ is equipped by legal training and practice and everyday experience on the bench, than the usually hurried and . wholly inexperienced members ot tl grand jury are likely to give him. Moreover, the rejection of a bill by one grand jury is not the end of tlie matter: because if one grand jury returns : a ‘no bill’ on an indictment presented to it, the Attorney-General, or anyone with the written consent of a judge ot . the Supreme Court or of the AttorneyGeneral, may prefer the indictment tc ' a subsequent, grand jury in the district, and any person may. prefer at indictment before the court at a silting for the trial of criminal cases, if the Supreme Court so orders.” The journal remarks that that law ha s been invoked within recent years and a Crown prosecutor has said he would continue to present an indictment until he got a true bill. On the other hand, if a true bill is returned 1 it is not subject to review and accused ' must stand his trial. 1 “We think that the liberty ot the ■ subject, if it be the main question iu I issue, has its greatest and most de- ’ peudable safeguard, in the last resort, ' in the Judiciary. To assert that the ■ grand jury is a necessary safeguard u . to Ignore the fairness of a common jury, and to overlook the fact that the L grand jury is not bound by the rules ■ of evidence, and that it is the piaster i of its ow’n procedure, and exercises its i functions, unassisted, in secret. Ihe j sum total of those functions amount to - its sitting as a court of appeal on a t committal by a magistrate, where tlie accused has not been committed by . justices; and the magistrate has knowI ledge and experience to guide him, t and he is bound by the rules or evi- - deuce. Any appellate tribunal, to be j effective, even if it deals only w-itli - questions of fact, should have higher qualifications than the judicial autlioiity below it. Yet, before a magistrate may commit an accused person, the evidence must be heard in public, tne i whole of the case for the prosecution - must be disclosed, and tlie magistrate * usually has the assistance of counsel, i And even when the magistrate luu i committed the accused person for trial, t the best safeguard is the presiding judge, who may direct the juty r whether the evidence for the prosecuI tion discloses the commission ot n s crime or not, or whether it is sate on t the evidence for tlie jury to eon ■> "The" law relating to the grand ’ juries in New Zealand has remained i unaltered since 1868, when different . social conditions prevailed and tin - functioning of the lower courts was j not as efficient as it is to.-day. In the meantime, there have been many re- - forms and developments in the act ministration of justice. The magis 1 trates, who were mostly drawn tron , the ranks of lay military officers aftei - the Maori Wars, have been succeedet s by magistrates appointed from tin practising ranks of the legal profes1 siou. The vast change in the impiove. - merit of the educational equipment ol tlie common juror needs no stressing

When the changes in society and in the administration of the law that have come about in the past sixty years are remembered, the ease for the abolition of the grand jury system in New Zealand is surely worthy of consideration.”