APPEAL COURT

New Zealand Times, Volume XLIV, Issue 10397, 30 September 1919, Page 6

APPEAL COURT

OPINION ON A JUDGE’S DIRECTION SOUGHT. A sitting of the Appeal Court was hold yesterday morning to hear a case stated by Mr Justice Sim as to whether ills direction to tho jury in a criminal assault case, which camo before the Supreme Court at Dunedin, was correct in law. Thfcir Honours Mr Justice Edwards, Mr Justice Chapman, Mr Justice Sim and Mr Justice Hosking were on tho bonoh. On August 7th, 1£)19, W. G. Perry and W. A. Pledger were each charged in the Supreme Court at Dunedin with having indecently assaulted a girl under tho age of 16 years about Juno 13th, 1919. A plea of not guilty was entered.

Tlie assaults, was not denied and counsel for the accused, who did not call any evidence, in his address to, tho jury said that tho jury ought to convict the defendants unless they wore satisfied that the case came within the proviso of section 216 of tho Crimes Act, 1908. He invited the jury to find that the accused believed, on reasonable grounds, that the girl was of or over the ago of 16 years, and to acquit them on that ground. There was no direct evidence as to what the. accused know or believed about tho girl’s ago. The girl said, In her evidence in chief, “The two accused did not know how old I was. Neither of them over asked mo how old I was.” Under cross-examination she said: “Thoy had known mo tor a good while before that. They had fooled with mo before.’’

At the close of the address of counsel for tho accused, counsel for the Crown submitted that as there was no evidence before the jury as to tho belief of the accused with regard to the girl’s age, tho jury ought to bo directed that the defence sot up by the accused was not open for consideration by the jury, in support of his argument, counsel quoted a case in which it- was hold that in order to constitute a defence under tho corresponding division of tho English Criminal Law Amendment Act, 1885, the’ accused must have reasonable cause, and must, in fact, believe tho girl was at least 16 years of ago. His Honour ruled provisionally that the jury might infer what tho accused believed with regard to the girl’s age from their conduct and tho other circunisfances of tho' case. He directed the jury accordingly, and told them that they ought to convict the accused unless they were satisfied that the accused believed the girl to be at least 16 years of ago, and had reasonable grounds for such belief. Tho jury returned a verdict of “not guilty.’’ Decision was reserved.

Sir John Salmond, K. 0., appeared for the Crown, and tho respondents were not represented.