COURT OF APPEAL.

Otago Witness, Issue 2902, 27 October 1909, Page 37

COURT OF APPEAL.

WELLINGTON, October 12.

In the Court of Appeal to-day, before Justices Williams (Acting Chief Justice), Denniston, Edwards, Cooper, and Chapman, the case Bex v. Brown and M'Cann was heard. This was a case reserved by Mr Justice Chapman for the opinion of the Court of Appeal. The two accused were charged with robbery at Wellington on August 7, and the sole evidence against them at the trial was that of the man who alleged that he had been robbed. Coun-sel who defended the accused did not put them into the box to contradict his statement, but addressed the jury on the I unsatisfactory nature of the evidence for the prosecution. In summing up to the jury, Mr Justice Chapman, after stating that the evidenoe 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 was open to either 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 stoTy. They have not done so, and you may attach what importance you think fit to that, but you are at liberty to attach buch importance to it as you think it deserves." The accused were convicted by the jury. Section 423 of "The Crimes Act, "1908," enacts that where a person charged with an offence refrains from giving evidence no comment adveise to the person charged shall bo allowed to be made thereon. The qxiestion for the Court of Appeal was whether this section was intended to bind the judge or only the Crown Prosecutor. If the judge was intended to be bound, then the direction to the jury was wrong, and it was admitted that in that case the conviction should be quashed. Mr Myers appeared for the Crown, and Mr Webb for the prisoners. Judgment was reserved. The court then proceeded with the case of Rex v. Bolton. This was a case reserved ioc the opinion of the Court of Appeal. The accused was tried before Mr Justice Edwards and a jury of 12 at Auckland on August 31 on a charge of carnally knowing a girl under the age of consent at Paevoa on December 21, 1908. The accused set up that he was at ihe railway station vith his brother and another person at the time, which rendered it very 'improbable, if his evidence was true, Vnat he could have committed the offence at the time and pla-ce alleged ; and he absolutely denied (as had been alleged) that he was at the post office with the girl on that day at all. A witness named Waters was called to prove that he saw the accused with his brother and tto other person at the station at the timo alleged. This witness was as-ked in oio«=-exa--uinati'>n whether he had not previously stated to the constable in chprge of the "ca«e tha,' accu-ed had admitted to him that hs had been at the post offic? with the girl on the day on which the offence •\,-a.s alleged to ha\e been committed, and he denied that he had made any puch t-txtement. Mr Justice Edwards allowed ihe constable to be called in lebuttal of that statement*, and the constable r,wore that Waters bad made to him the s-tat"-nient which Waters denied. The accused was convicted, but sentence was postponed, and the accused was admitted to bail, ihe quPs-tion for the court meanwhile being; whether the evidence of the constable was admissible in rebuttal of the denial by Wateis Mr Myers appealed for the Crown, and Mr J. R- Reed for the accused. The judgment of the court wns | tliat the evidence was ritrhtlv admitted, and the conviction was affirmed. '