MONDAY, SEPTEMBER 18, 1871.

Wellington Independent, Volume XXVI, Issue 3305, 18 September 1871, Page 2

MONDAY, SEPTEMBER 18, 1871.

In reverting to the subject of abolishing grand juries — a question which is still under the consideration of Parliament — it may be useful to examine the action of a criminal judicial system which for centuries has existed amongst our own people, and has worked and still works well. In Scotland a grand jury is an unknown institution, yet no one will venture to s^ay that the modern history of criminal courts north of the Tweed displays a single instance in which injustice has been done to an accused person through the absence of that cumbrous and showy, but really valueless, if not pernicious, piece of machinery— the grand jury. The system in Scotland, and its action there, may be thus narrated ; When a criminal charge is made against a subject, and he is apprehended on that charge, he is within twenty-four hours brought before one of her Majesty's Justices of the Peace, at the instance of the public prosecutor, for examination. This examination is a private one ; and before the prisoner is examined the charge is reod over to him, and then he is " judicially admonished &nd warned." That is to say, he is told that questions will be put to him, which he need not answer unless he is so disposed, and that any answers he makes will be taken down and may be used against him on his trial. Questions are then put; and the prisoner, if innocent, can give a plain, unvarnished story, which of iteolf will help to secure his release. Tf guilty, the course of justice is frequently aided by bis very prevarications. He is then remanded for further examination, if necessary ; or fi'om week to week as the case may be. In the interval the witnesses are " precognosced," as the somewhat uncouth jargon of the Scottish law has it. The word means, to know before-hand ; and the act it represents is somewhat similar to that of taking notes of evidence, with this exception that the witnesses are put upon oath, and their evidence when so taken and signed stand precisely in the same position as the depositions of witnesses made in the magistrates' courts here. When the case is complete the whole papers are sent to the Deputy Advocate, the subordinate office of the Lord Advocate, who is in Scotland what the Attorney- General is in England. If a case for prosecution is made out, prosecution is ordered, and the Justice of the Peace has the prisoner again before him, and he is formally committed for trial. After committal no further questions can bo put to a prisoner. Of course, in bailable offences bail is allowed, as in England. If the Advocate Depute deems that no case is made out, he says so ; or that the proof is on the face of the documents faulty, the prisoner is discharged. As all this is done not in open court, although before a magistrate, a person who is thus released is saved from the scandal of publicity of the open trial before the Resident Magistrate. We are not disposed, however, to lay much stress on this point, nnd nre inclined to think the present course of a preliminary trial before an open court, with some slight modifications, might be found practi cable and safe. We have stated the substitute in Scotland for the cumbrous grand jury system in use in England and in this colony. There is no grand jury in Victoria; there the practice is similar to that existing in Scotland. Our experience of the grand jury investigation is that it is a solemn sham, although unfledged politicians may be apt to term it a " hallowed institution." Anyone who has sat frequently in that respectable conclave, if he knows anything of the laws of evidence, must know that the duty of taking evidence is performed in a most loose and perfunctory manner, generally not half the facts being evolved that are contained in the depositions. And there is another objection to the grand jury in this colony, and that is, that as a sort of compliment or honor the best educated men — men most qualified to bring the power of culture to bear on the value of evidence —are eliminated from the jury which tries a man, instead of being carefully

incorporated in it. This anomaly is prevented In Scotland. In thafccountry there are two tribunals for crimknrl trial by jury ; one is that of the Sheriffs of the counties ; the other the Supreme Court of Scotland, the Judges of which, who reside in Edinburgh, hold periodical Circuit Courts in several districts. The constitution of the juries in both courts is the same. There is a

panel of forty-five jurors summoned, thirty of whom are called common jurors, and fifteen are special jurors. We think that is the proportion, but are not quite certain as to the numbers. The special jurors belong generally to the landed and more opulent classes. From the 45, 15 jurors are selected by lot to try the accused, who has a right of challenge as under our law. This jury can decide by a majority ; but when a division does exist the majority is generally a large one in case of conviction. The jury has the power of returning three verdicts ; one " Guilty," one "Not Guilty," and a third " Not Proven." It is a fault in English law that a jury is confined to the two verdicts of either <f Guilty" or " Not Guilty." There may be a lack of evidence legally to lead to conviction — a single link in the chain of legal proof, the absence of which properly bars conviction ; but there remains in the minds of the jury a moral conviction that the man is not innocent, and yet under our system theii' verdict must be " Not Guilty." The verdict of " Not Proven" is simply an open verdict. By it the jury declare that the evidence is insufficient to legally warrant conviction, and they are by this saved from doing violence to act by declaring a man " Not Guilty" when a mere link or a doubt only prevents an opposite verdict. An opinion exists among some, even in I Scotland, that an accused person who has escaped on a verdict of " Not Pro- | yen" may be again apprehended, and again tried for the same offence. This I is a mistake. It is against the spirit and letter, the practice and principle, of the law, both English and Scotish, that a man can be twice tried for the same offence. In the language of the old Scottish law phrase, he has " tholed an assize," that is, has borne the burden of a trial, and cannot again be prosecuted on the same grounds.

Enough has been said to show the working of the Scottish criminal law ; a system, the excellence of which has been proved for generations ; and under which there are fewer cases of unjust conviction on record than have occurred under the so-called " hallowed institution" of a grand jury, which, in our humble opinion, New Zealand may with advantage still further hallow by sending it to the silent shades of worn- out decrepitudes.