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New Zealand Mail, Issue 764, 22 October 1886, Page 22

It is not surprising that the forcible remarks made by Mr Justice Bichmond in discharging the jury on Friday should have excited general attention and a good deal of comment. The miscarriages of justice which discredited the last criminal session of the Supreme Court were so glaring and extraordinary as to

be the subject of common talk as well as of newspaper remark. It is natural enough that the jurymen who were so severely censured should feel very acutely the censure passed upon them, bub the verdicts in certain notorious cases were so flagrantly contrary to the evidence that the jurymen who tried those cases will assuredly find the great majority of their fellow-citizens against them, and in sympathy with Mr Justice Bichmond. A question has, however, beeu raised, temperately, and with some ingenuity, as to the expediency of such a course being taken by a Judge. It is freely admitted that in the cases aimed at the juries were “ made tools of” by the skilful counsel for the accused ; that the verdicts were dead against evidence; that the result was degrading to the Court, and that its tendency was to encourage crime. This is conceded on all hands, and we cannot imagine the position being seriously controverted. But it is urged that although, this was so, the Judge ought not to have ’ noticed it, or, if he did, that he should only have done so in very gentle and delicate terms, not in language of such severity as that employed by Mr Justice Bichmond. It is intended that virtually the presiding Judge and the jury represent two separate and independent judges, possessing coordinate powers but different functions—the one having to judge the law and the other the facts, so that,it is as competent for the jury to lecture the Judge as the Judge the jury. We cannot concur in this view of the matter. It appears to us to arise from an imperfect recognition of the relative positions of the two judicial functionaries. These cannot be accurately differentiated in the way attempted. It is the Judge’s duty to direct the jury as to points of law, but it rests with the jury to decide the value they will give in their verdict to his exposition. This point was the subject of some sharp controversy in the days of “ Junius,” and the outcome was a plainer declaration of juries’ powers in this respect. Their decisions, if given in defiance of the law, are open to review or appeal, but forthe'time their verdicts, however irrational, form the judgineut of the Court. Thus the jury have pro tempore more power, the Judge less than has been claimed for each. And yet we maintain that in no circumstances do a jiiry hold such a position relatively to the Judge that such comment by the latter on their action as would be entirely withiu his province to make would be seemly if exercised by the, jury on the action of the Judge. Their function and powers are not coordinate. The Judge has to place the case before the jury to explain to them the application of the law, the hearing of the facts, and the evidential value of the testimony adduced, to comment on the demeanour of witnesses, and, in short, to “ direct ” the jury, as it is technically expressed. He is aho invested with powers not shared by the j ury of maintaining order and decorum, and of summarily punishing any contempt or disrespect. Now seeing that a Judge holds these powers and functions, it does appear to us to be strictly within their exercise that when there has been a very glaring failure of justice, when certain juries have clearly either deliberately ignored their oath to “ well and truly try ” the case, and “atrue verdict give according to the evidence or else have been utterly befooled by the prisoner’s counsel, so that in either case the Court and the administration of justice therein have been degraded and brought into public contempt, while crime has been directly encouraged, a Judge should express bis opinion very clearly. Indeed, it seems to us his plain duty to do so. Nobody can, with reason, dispute that a very serious encouragement to crime has been given by the outcome' of certain cases dealt with during the late criminal sessions. Criminals have been cheered by the spectacle of undoubtedly guilty persons getting off scot free, and the police have been discouraged iu their efforts to bring criminals to justice. We cannot discern the slightest indiscretion in a Judge commenting, and commenting strongly, on so grave a state of things. Judicial remarks on defects in the law, on the treatment of criminals, etc., are often very valuable, and the appearance of so formidable a hitch in the administration of justice as the late wholesale acquittals in the teeth of conclusive evidence, constitutes, in our opinion, a very fitting subject for pronounced remarks on the part of the Judge. The only feature in the recent judicial utterance to which exception, perhaps, can fairly be taken is its somewhat sweeping character. It

might be taken to apply to all the jurymen, as no exception was made, and if so, an obvious-injustice would be done to the majority of their number,, as only a small minority of the total number summoned were concerned in the miscarriages of justice- complained of. The innocent majority naturally feel it rather hard to be apparently included in the “black list,” especially as they doubtless felt as much disgusted as did the outside public at the marvellous fatuity of a few of their number. It is to be regretted that the application of the well-merited censure was not more strictly limited to the actual sinners, but we do not ignore the difficulty of doing so without danger of straying beyond the limits of discretion. It has been urged that juries will resent the action of Mr Justice Bichmond, and that they will be apt to show that resentment by defiance of future direction on the part of the J udge. But this surely implies that they would deliberately ignore or break their oath for the sake of spiting the Judge. They are sworn that they will “ well and truly try ” the cases, and “ a true verdict give according to the evidence.” If they did not well and truly try the case, or did not give a true verdict according to the evidence because a Judge had lectured other jurymen, they would simply be breaking their oath. There is no mistake at all about that. We do not believe for one moment that the bulk of our jurymen are capable of this conduct any more than they would have been of returning the improper verdicts which have caused so grave a scandal. not at all improbable that the recent occurrences may direct pointed attention to the necessity of some alteration in the rule as to “ challenging,” which, as at present carried out, too often leads to : the elimination from a jury of its most intelligent and useful elements. This is a point which deserves careful consideration. Looking at the question from all points of view, we hold that the public are greatly indebted to Mr Justice Bichmond for the vigour and moral courage with which he has unflinchingly probed a very grave public scandal.