D—No. 2

Principle on which the following suggestions are based.

65. The principle upon which we think our present suggestions ought to be based is simply this, that with respect to the administration of Criminal Law, on the one hand, Colonial society has a right to look for as much security to life and limb, liberty, property, and character, as the society of the mother Country, and on the other hand, the Colonial subject accused of breaking the law, is entitled to as much protection in substance and by form as his fellow subject in England. 66. In its existing condition in New Zealand, the Criminal Law as compared with that of England, seems deficient in the following matters, in respect of which we would suggest remedies. 1. In the first place it seems at least doubtful whether an Indictment can be removed by certiorari from the Circuit Court into the Supreme Court sitting in any other capacity, and if it can, whether any practical benefits can be derived from the operation. But there are advantages accruing from the removal of an Indictment by certiorari in England which it may be but just to extend to persons accused of offences in New Zealand, and besides Indictments, there are convictions and orders of a penal character removable by certiorari, in respect of which it might be desirable to give the., Court of Appeal jurisdiction, either exclusive or concurrent with that of the Supreme Court. 2 In the second place, we think the Court of Appeal should be invested witli the same powers and duties as the Court for Crown cases reserved constituted in England under the , 11th and 12th Vie, c. 78, which superseded the old, anomalous, inconvenient, and faulty practice of reserving cases for the opinion of the 12 or 15 Judges, such opinions being given extrajudicially, and acted upon if necessary, by the exercise on the part of the Executive of the Regal prerogative of mercy. 3. In the third place, the Court of Appeal seems the proper tribunal for the decison of proceedings in Error in Criminal Cases as well as in Civil. Whether parties convicted ought to be allowed to appeal with respect to matters which are not properly grounds of Error, and where the Judge refuses to reserve a case for the opinion of the Court of Appeal, is one of those questions on which we do not feel called upon to give an opinion at present. Too great facility of appeal in criminal cases would be attended with the greatest inconvenience, and we should be slow to recommend any innovations in Criminal Law not sanctioned by experience or authority in England. On the other hand it does seem somewhat inconsistent that there should be greater facilities for appeal in Civil than in Criminal cases.. On the whole, we think that the machinery now proposed will b e found to adequate protection to innocent persons unjustly accused. 67. With regard to all these branches of jurisdiction, we do not think it necessary that the Legislature of New Zealand should assign to the Court of Appeal.the precise limits of the English tribunals; but we would recommend that in all their provisions, they should be bound rather by the spirit than the letter of the English Law and practice. 68. We have to consider first under the Law, what steps require to be taken in order to ensure to the Colonial community the same practical advantages as are possessed by the British subject in England, in respect of the removal of Indictments for misdemeanour, convictions and penal orders into the Court of Queen's Bench. As regards Indictments, we cannot well see how, at present, an Indictment found at the Circuit Court, could be removed with any advantage into the Supreme Court, if it could be said not to be already in that Court. In England a certiorari is rarely granted, at the discretion of the Court, regulated by the Statute 5 and 6, W. 4, c. 33, to remove an Indictment from the cognizance of Justices of Gaol delivery. The only objects for the removal of an Indictment from such a tribunal would be either to obtain a trial at Bar before the full Court, a proceeding justified only in cases of extraordinary difficulty and importance, or to have the trial conducted according to the course of Nisi Prius practice. 'I he principal advantage of the latter mode of proceeding is that' a special Jury may be obtained. '! 11. TRIAL AT BAR. : 69. It may therefore be proper, for carrying out the principles upon which this portion of our Report is based, to provide that the Court of Appeal should be invested with the same powers as the Court of Queen's Bench, for the trial of extraordinary cases presenting great legal difficulties, atj Bar, before all the Judges. And with respect to the question of a special jury, it would seem desirable that instead of parties being obliged to move for a. certiorari the Supreme Court should be empowered, on sufficient affidavit, to grant a rule nisi for a special jury, either on the motion of the prosecutor or of the prisoner, arid to make the same absolute if no sufficient cause should be, shewn against it. This, we think, would be a most important provision, and in some cases it would ensure what is at present scarcely rendered certain, in all cases, that a man should be tried by his peers; still as there are classes who might feel a jealousy about being tried by persons otcupyiug a higher portion than themselves in the social scale, it would not be advisable that this course should be adopted except for very urgent or clearly satisfactory reasons. , 111. SPECIAL JURY. 70. Next, in order to give a similar discretion in the case of Indictments removed from the District Courts (or of some other inferior tribunals which may hereafter be constituted for the trial of indictable offences) it would be well to provide that the Supreme Court, in case it should

Defects of the Criminal Administration in New Zealand, for which remedies suggested. Cases for Certiorari.

Crown cases reserved.

Error..

Spirit of Enplish law to be followed.

How advantages of Certiorari to be secured.

Aβ to Indictments, — «se of Certiorari in England.

Trial at liar.

On removing indictments by Ceriiorari, £runt of special jury.

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REPORT OF THE JUDGES UPON