DISCHARGE OF JURORS IN CASES OF FELONY.

Otago Witness, Issue 748, 31 March 1866, Page 16

DISCHARGE OF JURORS IN CASES OF FELONY.

It will be remembered that a few months ago, between the period of the conviction of William Andrew Jarvey, and his execution, news was received that in England, in the case of Charlotte Winsor, a point which was common to the cases of the two convicts was reserved for the decision of the Court of Queen's Bench, viz. :—: — Whether in a case of felony, the jury having been discharged by the Judge, on the ground of hopelessness of an agreement being arrived at, it was legal again to indict the prisoner for the same offence.

Oa the 24th January, in the Court of Queen's Bench, the argument ia the case of Charlotte Winsor v. The Queen> was resumed and concluded; and the Court at once gave judgment, affirming the legality of a second trial, in the case stated.

The Chief Justice, after remarking, " there is no doubt whatever, in the mind of any one of the members of the Court, as to the j udgment we ought to pronounce," said — " I have no hesitation in expressing my own opinion that it is within the province of the judge presiding on a criminal trial, in the exercise of bis judicial discretion, after the jury have retired to consider their verdict, and have remained in deliberation for a long and sufficient time, if they are agreed in this only, that there is no chance or reasonable expectation of their coming to any decision, it is competent to the judge, in the exercise of his discretion, to discharge them. We are dealing here not with one of those fundamental principles which lie at the very basis of our system of criminal jurisprudence, such as the maxim that the judges shall decide questions of law and juries questions of fact, or that the verdict of a jury should be unanimous, but we are dealing with a mere matter of practice, which has fluctuated at various times, and perhaps at present may not be considered quite settled. The rule laid down by Lord Coke in his Institutes, if it ever truly expressed the law, was certainly very speedily departed from in the administration of justice. In a generation or two at least after the time of Lord Coke, we find from the statement of Lord Hale — I need not say an authority of the highest eminence — that a practice universally prevailed in the administration of criminal justice where the proof turned out upon the trial to be defective, to discharge the jury in order that the prosecution might come upon a future occasion better prepared, and we find that a great lawyer and most humane man, speaking in approbation of that course of practice as essential to prevent the failure and frustration of justice in cases where evidence was forthcoming, though it happened to be temporarily wanting. He speaks of the practice as having prevailed for many years. Afterwards, indeed, in consequence of the way in which the practice was abused, and the possibility of the great grievance and hardship which might fall upon the accused person, who, going prepared for his defence on the first trial, might be wanting in the means of preparing for his defence upon the second, the judges adopted a different rule. Not that there appears to have been any judicial decision upon the point, but the judges appear upon consideration among themselves to have laid down a rule that in

criminal trials— at all events, cases of felony — the jury should not be discharged at the discretion of the judge. But if that resolution was ever acted upon, it certainly was only for a limited time. . . . The Judge had here the choice of three courses — to discharge the jury, or to take the verdict on Sunday,ortokeepthejuryin confinement till the Monday, allowing them the necessary refreshment to sustain their strength. The Judge, therefore, was placed in circumstances of very great difficulty ; and (though lam not here to review bis discretion) if ever there was a case for its exercise, it was the present case. And unless it can be shown that he had not a discretion, we ought not to say that it was improperly exercised. Now, these are the facts set forth on the record, with this addition, — that it was adjudged that a reasonable time had elapsed, and that it was necessary under the circumstances that the jury should be discharged. This brings me to the second question, whether, this necessity being set forth on the record, we can deal with it. 1 think, certainly not. The first question is, how is it to be reviewed ? The existence of the necessity is not a question of law, but of fact. It may be a rule of law or practice that a jury shall not be discharged except for necessity ; but the existence of the necessity is necessarily a matter of inference or conclusion from all the facts and circumstances of the case. And who has ever heard of a Court of Error sitting to determine a question of fact, or to review the decision of a Judge upon such a question ? As it was very well put by the So-licitor-General to-day — if this could be so, then the question could be brought before a jury for trial. It is impossible that it can be a ground of error. It is matter for the Judge in the exercise of his discretion, and no exercise of a discretionary power has ever been made the subject of a Court of Error. * * I cannot help thinking that this discretionary power is one of a most salutary character, and one which, I hope, will never in future be abused, or, if it should be, the power of Parliament would be exerted to inflict that punishment which the Judge who should abuse it would so richly deserve. Therefore, lam of opinion—first, that this was a discretionary authority which the Judge had power to exercise ; and, secondly, that whether it was properly exercised or not i 3 not a matter which can be reviewed in a Court of Error. It has, indeed, been urged upon u-. that, according to the law of En^lauJ, no man ought to be put in peril twice upon the same charge, and in that I entirely agree. But then we must interpret and apply that maxim according to what is really meant by it. It means this — that I a man shall not be put again in peril after a a verdict has been pronounced upon a good indictment, on which it was legally competent for a jury to pronounce a verdict. It does not mean that if the trial has proved abortive there may not be another trial. It was urged that there was a difficulty as j to the process for summoning a jury, but I do not see the force of that, for it is admit- : ted that there are cases in which a jury : may be discharged, and in all cases the difficulty, if any, is the same ; there is no < doubt that a second trial may be ordered in cases of felony in certain cases ; and if i there was a power to discharge the jury, 1 this is one of those cases* Then it was urged that the evidence of the fellow ' prisoner was improperly received. But ! that is a matter of which we can- ; not take notice upon this writ of i error. . . . Upon these grounds, being \ of opinion that in this case the circumstances warranted the exercise of judicial i discretion, and being of opinion that even if they did not, or if the discretion was : wrongly exercised, it is not a matter which ' we can reconsider or review, and over- : ruling all the other objections, for the i reasons I have adverted to,' l. am of opinion > that our judgment must be in favor of the i i Crown. Mr Justice Blackburn, Mr Justice : Mellor, and Mr Justice Lush concurred. The Lord Chief Justice said the judgment would be that the judgment of the Court below be affirmed, and that the gaoler be ordered to deliver up the prisoner to the custody of the Sheriff of the county of Devon, to undergo execution of | her sentence. The prisoner was then removed in custody, and unless the Home Secretary interposes, or unless the Attorney-General allows a fiat for a writ of error to the Exchequer Chamber, she will be executed.