APPEAL COURT.

Lyttelton Times, Volume CXX, Issue 15124, 13 October 1909, Page 9

APPEAL COURT.

[Pek Press Association - .J WELLINGTON, October 12

The Court, of Appeal, Justices Williams (acting Chief Justice), Denniston, Edwards, Cooper and Chapman, this morning heard the case Res v. Brown and M'Cann. This was a case reserved by Mr Justico Chapman for tho opinion of tho Court of Appeal. The two accused were charged with robbery at Wellington on August 7, 1909. The sole evidence against them at the trial was that of a man who alleged that he .had been robbed. Counsel who defended them did not put accused into the box to contradict this witness's statement, but addressed the jury on tho unsatisfactory nature of the evidence for the prosecution. In summing up to the jury Mr Justice Chapman, after stating that that evidence- had not been contradicted, said: "It was open to these men to contradict him. Why did they not go into the box and do so? It wae open for cither or both of these men, if they had an honest answer to this man's evidence, to go into the witness box and contradict his story. They have not done so. You may attach what importance you think lit to that, but you are at liberty to attach such importance to- it as yon think it deserves." Accused wore convicted by the jury. Section 42.'] of the Crimes Act. 1908, enacts that " where a person charged with an offence refrains from giving evidence no comment adverse to the person charged shall be allowed to be made thereon." The question for the Court of Appeal ivas whether this section was intended to bind the Judge or only tho Crown. Prosecutor. If the Judge was intended to bo bound then, tho direction to the jury was wrong, and it was admitted that in that case the conviction .should bo quashed. Mr Myers appeared for the Crown and Air Webb for the prisoners. Judgment was reserved. The Court then proceeded with Rex v. Rolton. This was a case reserved for the opinion of tho Court of Appeal by Mr Justice Edwards. Accused was tried before Mr Justice Edwards and a jury of twelve at Auckland on August 31 on a charge of carnally knowing a girl under the age of consent at Paeroa on December 21, 1908. Accused set up that he was at the railway station with his brother and another person at the time, which rendered it verv improbable, if his evidence was true, that he could have oonimitted the oilenco at the time and place alleged, and he absolutely denied (as has been alleged) that he was at the post office with the girl on that dav at all. A 'witness named Waters'was called to prove, that ho saw accused with his brother and another person at the station at the time alleged. This witness was asked m cross-examination whether lie had not previously stated to the constable- in charge of the cos? that licensed had admitted to him that he had been at the post office with the girl on the day on which tho offence was alleged to have been committed. He dcnieu that he had made any such, statement. Mr Justico Edwards allowed the constable to be railed in rebuttal ot that statement, and the constable, swore that Waters had mode to him the statement, which Waters denied. Accused was convicted, sentence was postponed, and prisoner was admitted to bail, tho question tor the Court meanwhile being whether the evidence of the constable was admissible in rebuttal of the denial by AVaters. Mr Myers appeared for the Crown and Mr J. R. Reed for the prisoner. the judgment of the Court was that the evidence was rightly admitted and the conviction was affirmed.