IN BANCO.

Otago Daily Times, Issue 4661, 25 January 1877, Page 3

IN BANCO.

(l&fore Hia Honour Mr Justice Williams.) KEGINA V. BOKKOWS. If is Honour dalivered judgment in this case aa follow* {— This was 8, rule nisi tor a statutory prohibition under the 3rd part of the Appeals from

Justices Act, 1867. The accused—Jeremiah Burrows—had been charged with indecency under the Vagrant Act, 1866. At the hearing, the defence of insanity was raised; but the Justices, after hearing the case, convicted the accused. The rule nisi was obtained on tne affidavit of Mrs Butrowp. The 6th and 7th paragraphs of that affidavit are to the effect that the Justices decided that they could receive evidence only of the state of mind of the accused at the precise time of the commission' of the alleged offences; that they refused to consider evidence of his state of mind either before or after such times, or as to his state cf mind when the vases were being heard; that they decided that the opinions of the medical: men were inadmissible; and that, in disregard; of the evidence and the plea of insanity put forward by counsel, they convicted the accused. It seems to me that to this Mr Logan si affidavit affords a conclusive answer. It appeavs from that affidavit that Mr Logan, with Messrs Begg and Hialop, were the Justices be-, fore whom the case was heard; that at the hearing all evidence tendered on behalf of the accused was admitted; and that the Justices, on hearing this evidence, were of opinion that the accused was responsible for bis actions when he committed the offence charged against him, and was in his proper state of mind at the hearing of the charge, and that they gave judgment accordingly by convicting him. Whatever opinions may have been expressedby the Justices in the course of the hearing, the fact remains that all evidence adduced on the subject of the insanity of the accused was admitted, and that the Justices arrived at the conclusion they did after hearing this evidence. It was contended by Mr Stewart that as the question of whether or no the accused was insane at the time the case was heard was raised at the commencement of the_ hearing," that question should have been first disposed of before the guilt or innocence of the accused was enquired into, and that as this course had not been followed the Magistrates had acted without jurisdiction. Ido not think that this view can be supported. In Comts where the proceedings are by indictment it is provided by statute 39 and 40 George 111., c 94, s 2, that if a person indicted is insane and shall, on arraignment, be found to be insane by a Jury empannelled for the purpose, or if, on the trial of any person indicted, such person shall appear to the Jury charged vrith such indictment to be insane, the Court may order the person so found insane to be kept in custody during the pleasure of the Crown. The cases of R. v. Davis and R. v. Drake, cited by Mr Stewart, were decided under this statute, which does not apply to proceedings before Justices of the Peace. The case of Bei/ina v. Davis was cited as an authority for the proposition that where the defence of insanity is raised by the prisoner's counsel, the burden of proving that the prisoner is sane rests on the prosecution. The report of that case, in 3, C. and X, 328, is, as characterised by Mr Justice Johnston mJßegina v. Drake, a loose report, inasmuch as it gives no account of what took place before the time when the Jury, to. try the question of sanity,' was empannelled. A report of these proceedings is to be found in 6, Cox C.C., 326. It appear* frsm that report that the prisoner's behaviour when arraigned was strange, and that he refused to plead; upon that Mr Justice Vaughan Williams examined the gaol authorities and medical men in private as to the prisoner's sanity, and after that the prisoner was called upon again to plead, and a Jury to try his sanity was empannelled. I gather from this that before the Jury was empannelled the learned Judge was satisfied that a prima facie case of insanity had bsen made out, and that hence when the Jury was empannelled he called upon the counsel for the prosecution to prove sanity. In R. v. Turton, 6, C.C.L., 355, where a Jury to try a prisoner's sanity was empannelled at the instance of the prisoner's counsel, Mr* Justice Cresswell called upon the counsel for the prisoner to adduce evidence, on the ground that the presumption was that the prisoner was sane, although R. v. Davis was cited as an authority to the contrary. Apart from R. v. Davis there is no authority to alter the usual rule of the presumption of sauity; and I can find no authority to show that the prisoner's counsel, if he raises the pomt that the accused is insane at the time of the hearing, is entitled to have that question determined first. If the accused is insane or incapable of understanding the proceedings, it is true that the Justices should not go on with the hearing ; but the question as to whether or no such insanity or incapacity exists is ons of fact for the decision of the Justices alone, and until the existence of insanity or incapacity is made to appear to them, there. is nothing to oust their jurisdiction to hear the case. Rule discharged, with costs. •■••-. KENNEDY V. DISTRICT BOARD AND RATEPAYERS OF CAYERSHAM. His Honour gave judgment as follows :—ln this case, at the hearing, a [preliminary objection to the case being heard was taken by Mr Stewart, on the ground that the case purported to have been stated by the Magistrate, but that it did not appear that the parties could not agree in stating it, and that the Magistrate had only power to state a case in the event of the parties not agreeing. In support of the objection Mr Stewart cited ,the Victorian case of' Broadfoot v. Wilson (1, Wy. and W. Law, 147). I overruled the objection, and allowed the case to be argued. lam inclined to think, as a matter of practice, I was wrong in doing so, but as the case has been heard, and as the Court had jurisdiction to hear it unless the Magistrata in fact stated the case without the parties being first unable to agree in stating it, I do not think I ought at this stage to dispose of the case on the preliminary point. I think the Magistrate was wrong in refusing to receive evidence that the ap*pellatt was not the owner of the property rated. It is true that generally the Magistrate before \vhom payment of a rate is sought to be enforced has not jurisdiction to enquire into its validity, but must give judgment against the person rated if only the rate be good on the face of it. On this rule, however, is engrafted the exception that the defendant can show that he was not the occupier, and that he can do so even although he has appealed _ against the rate on that. ground and his appeal has been dismissed This was decided in the case of Milhoard v. Oaffin, % W. Blackstone, 1330. This case was followed in The Governors of Bristol Poor v. Wait, 1, A. and E., 264, and its authority was recegnized later by Compton, J., in Luton Board of Health v. Davis, 29, L.J., M.C. 175. Blackburn, J., also, in ex parte Hay, 31, L.J., M.C. 102, mentions that the question as to whether the defendant is the occupier is one of those that the Justices have to determine. The principle on which Milhvard v. Oaffin was decided clearly applies whether the person against whom payment is sought is rated as owner or as occupier only. I fear, however, that it is not open to the appellant to raise this question on the case as stated. The point for the decision of this Conrt is whether or not the plaintiff should have been nonsviited ; that is to say, whether on the evidence that was received by the Magistrate there was or was not any case against the_ defendant. I am clearly of opinion that as it was proved that the land was unoccupied, and that the defendant's name appeared on the rate-book as owner, that the plaintiff should not hava been nonsuited, and that on the evidence ictually before him the Magistrate's decision was right. I doubt moreover whether, however erroneous the determination of the Magistrate may have been in rejecting evidence, his determination can be reviewed. The 14th section of the English Act 13 and 14 Vie, c. 61, from which the hundredth section of the "R. M. Act, 18157, has been adopted, gives power to appeal if either partybe " dissatisfied with the determination or direction of the Court in point of law, or upon the admission or rejection of any evidence." The 100 th section of our Act gives leave to appeal only when the party believes himself aggrieved by the decision of the Court in point of law. This omission in our Act, coupled with section 47, seems to show that the Legislature intended to exclude any right of appeal on the ground that evidence had been improperly rejected or received. The distinction between the two Acts was pointed out by Mr Justice Richmond in Pearson v. Clark, Macassey, 145, when he decided that improper admission of evidence was not a erounJ for appeal. It is clear if evidence be improperly rejected that in order to do complete justice there should be :i re-hearing-, and not a mere reversal of the judgment, and there is no power to award a rehearing. Appeal dismissed, with costs.