CRIMINAL PROCEDURE,

Evening Post, Volume LXVIII, Issue 46, 23 August 1904, Page 4

CRIMINAL PROCEDURE,

Criminal procedure hws been greatly rationalised and uimplified since the days when tho form seemed everything und the subaUjnco nothing,' and tho most trivial technical flaw might prove fa.tal to the fctrongeat case. But this branch of the law etill abounds in pitfalls, nnd Uie lawyer no leas than the toyman is often puwled to know tho precise .legal bearing of any given departure from prescribed formality. The Indictable Offeuce* Summary Jurisdiction Aotß nupply « good example of the pitfull* which lurk in B omo of th» beat of our recent legislation, and are perhaps inseparable from any legislation at all. Ortttt expense is «aved to the country, and great incotivcnionco and suffering to persona accused of certain offences which ehould in ordinary couree go for trial to a Jury in the Supreme Court, bj giving thc«w pfrouns the option of a *ummiiry triaj by the AJagiotnilo before whom they must m any event appeur in the firAi instance. A great number of minor indictable offences arc thus, habitually tried, but in law the juption »till belong." to I heprisoner, and it is the Magijutratc'u duty to remind him every time that he has the right to trial by jury if ho bo dmros. 'I he omission of this reminder has been held to bo fatal to a conviction, nnd a prisoner who would have made no uae of the option if it had been mentioned to uun is nevertheless entitled to go free if no mention i» made of it Nor is it easy to see how the general right of the accused to go before a "jury in such cases can be maintained inviolate without tho general rule which now prevail*, and which every now and then, through a wheer technical oversight, leads to a gross miscarriage of juuticc. In the iippeal from Eketuhuna which waa decided fyy tho Supreme Court yesterday, tho Magistrate appears to lmve committed the converse error; that is to say, ho asked the persons accused whether they desired to be tried by a jury when tin? law allowed no such option. The charge was of "being persons having the conWol of a girl under the ago of sixteen years, and with wilfully ill-treating her in a manner likely to cause unnecessary suffering and injury to her health. " The Indictable OuVnces Summary Jurisdiction Act 1900 had no application to the case, because il only concerns offences punishable with imprisonment for a term exceeding throe mouths, and for tho olleiiee in question three moutlui' imprisonment was the maximum penuuy. llio offence,* however, wns an indictable one, and the main ground of tho appeal was that the Magistrate had acted without jurisdiction in disposing of it summarily. The Supremo Court has decided the question on broad grounds, which give to commoneenso and public policy a victory over technicality. Both the Chief Justioo and Mr. Justice Cooper held that tho Magistrate had made a mistake, but that it was not open to a defendant who had acquiesced in It and t«.ken the chanco of profiting by it to take the objection now. Counsel for tho accused had consented to the courso taken by tho Magistrate, had taken the chance- of acquittal in tho lower Court upon the merits, and could not, after tho verdict had gone the other way, bo allowed to turn round and object to a jurisdiction of which he previously approved. The law is so often the slave of technicality that tho layman has always a special pleasure when ho sees a Court subordinating technical objections to equity and common -sense as freely as any lay tribunal could. In the present case the public will also bo pleased to see an offence which is at once very odious nnd very difficult to prove mating with something like j just retribution. We say "something like just retribution," for we do not think that the general opinion will be that full justice was done by the Magistrate's sentence of a month and a day. Mr. Justice Cooper found that tho child was "grossly neglected and cruelly illtreated by the appellant," and that "the neglect and ill-treatment sworn to by the child had extended over a long period, and there was ample corroborative evidence of her statement suppJed by the child's body as spoken to by Dr Chadwick and by tho testimony of independent witnesses called on behalf of the prosecution." In these circumstances wo arc surprised that so humane a man us the Magistrate at Mftgterton should have deemed a month's imprisonment a. suflicipnt punishment, and instead of increasing the term by a day for tho benefit of the appellant 'he should surely havo increased it by something much more substantial for the benefit of tho public. The language u«d by the Supreme Court

Judges juslifias tho inference that they would have taken this view if tho adequacy of the sentence had been open to review in these proceedings j and the public will take the eiuno view. In the heverer reprobation which it extends to olfences against the peraon as compared with those against property tho sentiment of tho average man ie in advance of that of fcoma of the beat among our Magistrates.