A JUDGE ON THE JURY ACT.

Evening Post, Volume LVII, Issue 32, 8 February 1899, Page 4

A JUDGE ON THE JURY ACT.

Last session the Government introduced a Bill to abolish both Grand and Special Juries, and to reduce the number of challenges. The Bill, it will be remembered, was adversely criticised in both Houses, j and it emerged from its Parliamentary career in a very emasculated condition. The clauses abolishing Grand Juries were struck out altogether, and those dealing with Special Juries were watered down to the provision that no case should be tried by a special jury unless all parties consented thereto, or unless in the opinion of the Court expert knowledge was required. The Government astutely used the special jury to persuade the democracy that it was suffering an injustice, and that the very existence of the distinction between common and special juries was an insult to the intelligence of the workers, and an illustration of class domination. Such an appeal to the worst feelings of the least intelligent electors was worthy of the originators of the measure, but, fortunately, the hollow argument did not convince Parliament oi the wisdom of abolishing special juries. It would seem, however, that the Act has, by the introduction of the word "expert" in the clause mentioned above, opened the door for variant interpretations of the intention of the Legislature in connection with special juries. Last week at Dunedin Mr. Justice Pennefather was called upon to decide a question raised under this clause. A suit was impending for damages for malicious prosecution, and one of the parties applied for a special jury. Counsel for the applicant was able to prove that the case involved questions of bookkeeping quite beyond the capacity of the ordinary non-commercial citizen, but, on the other hand, the Act stated that the need of "expert" knowledge must be shown. His Honour, wisely, as it seems to us, decided that the application should be granted, and at the same time he laid down a general principle of great importance as to his view of the correct interpretation of the term •'expert." The subject is of considerable interest to the commercial community, and we cannot do better than quote Mr. Justice Pennefather's own words: — "I do not think it would be possible to take that word ('expert') in a very narrow sense, because ff it were taken in that way 'experts' ought not to be jurors ; they ought to be witnesses. The term, therefore, 1 think, must be taken in a somewhat wider sense, as meaning that a special jury is not to be granted unless in the opinion of the Judge some matters will have to be decided by them for which experience in that kind of business generally is necessary. Now this is the very class of case in which professional experience is of importance. The keeping of books for a house of business is quite as much a matter of professional knowledge as law or anything else. For a jury who had no experience in the keeping of books for a house of business to decide whether certain entries in books had been kept sufficiently regularly for the employer to determine whether they were sufficient or not would be a matter that could not be decided by a number of men, however weH-meaning they wiere, who had no knowledge of the kind. On the other hand, this seems to me just the very case in which a special jury would be most valuable. They will form the best tribunal that could possibly be obtained. As to the question of class distinctions, I do not see that that ought to come in here, because I cannot see that this special jury is more likely to be drawn from the class to which the defendant belongs than from the class to which the plaintiff belongs. I should be sorry to accentuate class distinctions so sharply as that. 1 therefore direct that the case be tried before a special jury." His Honour's remarks about class distinctions are very significant, and it is scarcely to the credit of the present leaders of the colony that, in self-defence, he should have had to make them in a Court of Law.