CRIMINAL CASES.

Waikato Times, Volume 113, Issue 18875, 20 February 1933, Page 9

CRIMINAL CASES.

HEARING OF APPEALS. ESTABLISHMENT OP COURT. RECENT LEGISLATION. More than unce from 'the Bench tho Chief Justice, Sir Michael Myers, has commented on the absence of a CrlmInal Court of Appeal In Now Zealand and has referred to the limitations of the New Zealand 'Court of Appeal, as constituted, in dealing with appeals m criminal cases. In a reserved judgment last year his Honour discussed the position and only recently, during the hearing of the appeal on behalf of Edward Tarrant, he made some observations un tho matter. The Tarrant appeal and Hie passing of the Judicature Amendment Bill, which was necessary 'to enable this appeal to be disposed of before the ordinary sitting of the Court of Appeal next month, have served to focus attention again 'on the question of the establishment of a Criminal Court of Appeal m this country. In flic latest issue of the New Zealand Law Journal the matter is discussed editorially, and there is also a symposium of views of members of Ihc Bar with considerable experience in criminal cases. Outline of Jurisdiction. In the judgment by the Chief Jus-

tloo to which reference has been made, his Honour pointed out the differences between the Criminal Court of Appeal in England and the New Zealand Court of Appeal. His Honour said that in England a person convicted on indictment might in certain circumstances appeal to the Court of Criminal Appeal against his conviction. That Court had power to allow the appeal if it thought the verdict of the jury should be set aside on the ground that it was unreasonable or could not be supported on the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of law, or that on any ground there was a miscarriage of justice. The New Zealand Court of Appeal had power to direct a new trial on the ground of the verdict being against the weight of evidence. Subject thereto, however, its powers of redress in the direction of granting a ! new trial were limited for ail practical purposes to cases where questions of law were reserved by the trial Judge or raised with the leave of tiie Court of Appeal. Even so, it was provided that no conviction shall be set aside, nor any new trial directed —although U appeared that some evidence was improperly admitted or rejected, or that something not according to law was done at Ihe trl?l, or some misdirection given—unless in the opinion of the •Court of Appeal some substantial wrong or miscarriage was thereby occasioned on Ihe trial. The result was that unless Ihe Court was able to say, firstly, that there was mis-

direction, and, secondly, that some substantial wrong or miscarriage was thereby occasioned, the conviction must stand, even, though it might appear that there was a miscarriage of justice on some other ground. The prisoner’s only remedy in such a case was to apply under section 447 of the Crimes Act (which authorises the Governor-General in Council) to fjirect a new trial In cases where doubt Is entertained as to whether the accused ought to have been convicted). The effect of the seotion was to impose on the Governor-General in Council a judicial function involving the exercise of the jurisdiction of a Court of Criminal Appeal. “An Opportunity Missed.” Commenting on the passing of the Judicature Amendment Bill recently, the Law Journal states that before the circulation of the Bill, a persistent rumour was abroad that the Government had taken the opportunity to provide at least for the establishment of a Court of Criminal Appeal. “We regret," continues the journal, “that the opportunity given by the preparation of this Bill. • . • was lost. We are (Irmly convinced that there would have been no dissentient voice raised to i.ho conferring upon the Judges of Ihe Supreme Court jurisdiction similar to that exercised in relation to criminal appeals by the King’s Bench Division of ihe High Court of Justice in England, and by several of the Dominion judiciaries." Reference is made to the Chief Justice’s views, which, the journal suggests, should have received the respectful and prac-

tical consideration of (Parliament. It is also pointed out that some of the functions affeoting the liberty of the Individual are now relegated to an unqualified lay tribunal in the person of the rank and file of the Cabinet for the time being, upon whose advice and with whose consent the GovernorGeneral must perforce act. “Surely,” the journal comments, “If on no other grounds, this is an anomaly that cries out for removal." Views of Counsel. In anticipation of permission being made in the recent Bill for the establishment of a Criminal Court of Appeal the views of a number of members of the Bar were sought by the Law Journal, and It is shown that the consensus of opinion .is In favour of such a Court. Brief extracts from the views expressed by Wellington barristers are as follows: Mr H. F. O’Leary: I welcome the proposal to establish a Court of Criminal Appeal in New Zealand. We have been too long without this Court and have indeed lagged behind England where it was established in 1907. . . It has saved from punishment many persons who had been unsatisfactorily or indeed unfairly tried. Mr W. E. Leicester: The best argument in support of the establishment in New Zealand of a Court of Criminal Appeal is the fact that such a tribunal has Operated for more than a quarter of a century in England, finding favour with the profession and the public alike. . . . Mr C. A. L. Treadwell; I can se»

no possible Justification for opposing the creation of a Court. of Criminal Appeal in New Zealand. . . . With the creation of a Criminal Court of Appeal a substantial improvement will have been made In the administration of justice. Mr J. 'Mel'tzer: The proposal to establish a Court of Criminal Appeal in New Zealand Is one in which all counsel, whose work lies partly In the criminal Courts, as well as the publio should be deeply Interested. . I believe that the setting up of a Court of Criminal Appeal in New Zealand Is not only fully justified but is aIS4 urgently required.