Law Reports.

New Zealand Police Gazette, Volume XXV, Issue 17, 14 August 1901, Page 195

Law Reports.

The following decisions are published for general police information:—

In re Lorie

[“ New Zealand Law Reports,” Vol. xix., pages 400-6.]

By-law—Penalty —“ The Municipal Corporations Act, 1886 ” —“The Justices of the Peace Act, 1882.” It is competent for any person to lay an information for the breach of a by-law made by a Corporation under “The Municipal Corporations Act, 1886,” even although the penalty is, under “ The Financial Arrangements Aot, 1876,” to be paid over to the City Council. Semble, In the case of penalties for the protection of public rights, any person may prosecute; but in the case of penalties imposed for the protection of private rights, only the person aggrieved can prosecute. Waters v. Fitzgerald (18 N.Z. L.R. 511) not followed.

Argument of rule nisi for a writ of prohibition

On the 17th day of August, 1900, Adolph Lorie was charged at the Magistrate’s Court at Dunedin, on the information of Richard Russell Donaldson, for that on the 9th day of August, 1900, at Dunedin aforesaid, he- did place an advertisement or announcement on paper upon his verandah in Princes Street ; and pleaded “ Not guilty ” to thß said charge. The information was heard before Charles Christie Graham, Esq., a Justice of the Peace and a Stipendiary Magistrate. The following facts were proved or admitted on the hearing of the said information: The by-laws of the City of Dunedin contain the following clause under which the said information was laid: “No person shall place or permit to be placed any placard, sign, advertisement, or announcement on calico, paper, canvas, or other material upon or against any verandah or verandah-post, or any part thereof.” The defendant had, on or about the 9th day of August, 1900, caused to be placed on the parapet of the verandah of his premises in Princes Street an announcement painted on paper. The informant, Richard Russell Donaldson, was the Inspector of Nuisances for the City of Dunedin. There was no evidence to show that he had any general authority from the Dunedin City Council to take proceedings for breaches of the city by-laws, and it was proved affirmatively that he had no special authority from the City Council to take proceedings in this particular case, as the matter had not been brought before the City Council. The defendant contended— (a) That Donaldson had no right or authority to take proceedings to recover a penalty for any breach of the city by-laws without the express authority of the City Council; ( b) that the said clause of the city by-law 3 was unreasonable and ultra vires, and therefore void.

The said Magistrate convicted the defendant, and fined him Is. and ordered him to pay £1 Bs. for the costs of the proceedings. A rule nisi for a writ of prohibition was granted on the above grounds. Prior to the argument of the rule an affidavit was filed by the informant setting out a letter from the Town Clerk instructing him to enforce the by-laws ; but this letter had not been put in evidence, and there was, in fact, no resolution of the Council authorising the proceedings. Williams, J. : I am satisfied that the prosecution was properly instituted, and that it is competent for any person to lay an information for the breach of a by-law, even although the penalty is to be paid over, under the Financial Arrangements Act, to the City Council. I confess I am unable to understand the Victorian cases, which appear to decide that, apart from the question of the penalty being payable to the local body, no prosecution can be instituted except by the authority of the local body. No English case affords any justification for such a conclusion. It is only on the ground that the penalty for a breach of the by law is made payable to the City Council that any argument that the information must be laid by the authority of the City Council can be based. By the Municipal Corporations Aot of 1886, who is to prosecute for breaches of by-laws is not specified. The general law, as contained in the Justices of the Peace Act, is left to its operation. No special power is given to the City Council to prosecute, as was given to the Board of Conservators in the case of Anderson v. Hamlin (25 Q.B.D. 221). In that case the penalties for breaches of the Fisheries Act were made payable to the Board of Conservators, and it was held that a oonviction obtained on an

information laid by the water-bailiff could not be sustained unless it was proved that he had authority from the Conservators to prosecute. But in that case the Court held that by the Act the duty was imposed on the Conservators of enforcing the law, and by the Act express power was given to the Board of Conservators to take legal proceedings against persons violating the provisions of the Act. This provision, on the authority of Reg. v. Cubht (22 Q.B.D. 622), was construed to mean that no one but the Board of Conservators was entitled to prosecute. Furthermore, section 62 of “The Salmon Fishery Act, 1865,” which relates to the recovery of penalties, provides “ that all moneys received and penalties recovered under the said Acts or any of them on the complaint of a Board of Conservators, or any officer of or a person authorised by the Board of Conservators, shall be paid to the Board of Conservators.” This affords a further indication that prosecutions could only be instituted by the authority of the Board. It is true that the mere fact that the penalty was payable to the Board is relied on in the judgment; but I hardly think the case rests exclusively on that ground. The year after Anderson v. Hamlin 25 0.8. D. 221) was decided the Fisheries Act was amended (“Fisheries Act, 1891,” section 13). The amending section evidently assumes that what prevented any one but the Board prosecuting was the power given to the Board to prosecute, and not the fact that the penalty was payable to the Board: See Pollock v. Moses (70 L.T. 378). The cases of Reg. v. Hicks (4 El. & 81. 633) and Reg. v. Corden (4 Burr. 2279) are mentioned in the judgment, and it is said that these cases held that where the penalty was to go to a particular person this was a strong indication that the person to whom the penalty was to go was the only person to sue for it. In each of these cas*s, however, the penalty was not imposed for the benefit of the public, but for the private benefit of a particular party. In Reg. v. Hicks there was a statute prohibiting the sale of fish at Torquay except as therein provided, and any person infringing the statute was made liable to forfeit to the Torquay Market Company a sum not exceeding £2. It was held that the company only could sue, on the ground that the statute was not framed for the benefit of the inhabitants of Torquay, but was framed exclusively for the benefit of the Torquay Market Company. The inference is that if the Court had considered that the statute was framed for the benefit of the whole of the inhabitants of Torquay it would have held that any one could prosecute under it, even though the penalties were payable to the Market Company. Anderson v. Hamiin certainly does not decide that the mere fact of a penalty for the breach of a statutory provision being directed to be paid to a public body disentitles any one but the public body to prosecute. If it did, it would be in direct conflict with the case of Cole v. Coulton (2 E. and E. 695), which does not appear to have been cited in the argument in Anderson v. Hamlin.

That case draws the distinction between statutes which impose penalties for the protection of the private rights of individuals, and which impose penalties for the benefit of t,he public. It held, in effect, that in the former case only the person aggrieved can prosecute, while in the latter any one can do so. This case has never been overruled, and lam of opinion that the principle of it ought for every reason to be followed. That a body which the Legislature has intrusted "With the power of making by-laws for the public benefit should have an absolute discretion to say whether when made they should or should not be enforced, and to say that they should be enforced against one person and not against another, would be a state of things which the Legislature could be hardly supposed to have contemplated. The New Zealand case of Waters v. Fitzgerald (18 N.Z. L.R. 511) rests solely on the supposed effect of Anderson v. Hamlin, and, as it was decided without argument, can hardly be regarded as an authority. I can see no ground whatever for holding that the by-law in question was unreasonable or ultra vires. By section 422 the Council has general power to make by-laws for any purpose in relation, amongst other things, to streets, as well as for the particular purposes mentioned in the several subsections of section 422. The verandah stands on the street. The footway is part of the street (see section 231). It is said that the by-law is capricious because it does not extend to advertisements on calico, paper, or other materials placed on hoardings. But hoardings stand on private property, and are not erected on the street. Moreover, hoardings stand back from the carriageway, and advertisements on them are not so likely, if they become loose, to frighten horses. There is no need that the matter prohibited by the by-law should necessarily be a nuisance. It is sufficient if there are reasonable grounds for supposing that in certain circumstances it is likely to become a nuisance. I think the principle of Kruse v. Johnson ([lß9B] 2 Q.B. 91) is applicable. The Corporation know the needs of the city a great deal better than the Court can know them, and their by-laws should receive a benevolent construction, and, unless plainly unreasonable, should be upheld

Buie discharged, with costs

Central Criminal Court 1 (Bruce, J.) j

1901. May 17

The King v. Smith. [“ Times Law Reports,” Vol. xvii., pages 522-3.”]

Criminal haw — Evidence—Dying Declaration-Murder — Immediate Impending Death—Statement made in Answer to Questions.

A dying declaration made in answer to questions put to the declarant, the answers only being taken down in writing, is not admissible in evidence. Reg. v. Mitchell (17 Cox, 503) followed.

Sydney Smith, 34, surgeon, on bail, was indicted for and charged on the Coroner’s inquisition with the wilful murder of Mrs. Florence Madeline Bromley Smith, and he was also indicted for using an instrument or means unknown with intent to procure her miscarriage. The defendant pleaded “ Not guilty.” Mr. Charles Mathews and Mr. Bodkin appeared for the prosecution on the part of the Director of Public Prosecutions ; Mr. Horace Avory, K.C., and Mr. Biron defended. The hearing of the indictment and Coroner’s inquisition charging the defendant with the wilful murder of Mrs. Bromley Smith was proceeded with. In opening the case Mr. Mathews said it was alleged that the defendant performed an illegal operation upon Mrs. Bromley Smith with intent to procure her miscarriage, and that blood-poisoning was set up from which she died. Mrs. Bromley Smith was thirty-one years of age, and she had been living apart from her husband for five years. She had resided in Chelsea. The defendant was called in to attend her in February. On the morning of the Bth of March she miscarried. After the Bth of March the defendant attended her again ; and on the 18oh of March he, having regard to her grave condition of health, called in for the purpose of consultation Dr. Boxall, a gentleman who stood very high indeed in the medical world, a specialist in obstetrical medicine. On the 20th of March the defendant ceased to attend her, an intimation having reached him that another medical man had been called in by her relatives to attend her. The reason for that was that her relatives considered her condition was so critical that she required constant medical attendance and they did not always know where to find Dr. Smith. On the 20ch of March Dr. Bonney was called in to attend her, and found that she was very ill. Oa the 21st of March Dr. Bonney called in Dr. Duncan, another specialist of high eminence. Mrs. Bromley Smith got no better, and on the 22nd of March her condition became critical. On the night of the 22nd of March Dr. Bonney, being of opinion that there was no hope of her recovery, called in Mr. Oust, a Magistrate, in order that she might make a statement in his presence if she desired to do so. A statement was made by her in the presence of Mr. Oust and Dr. Bonney. In order to make a statement admissible as a dying declaration the person making it must be in a “ settled hopeless expectation of impending death.” [See Reg. v Jenkins (L.R. 1 C.C. 187).] Io hal been decided that the words “ impending death ” meant “ immediate or almost immediate death.” [See Reg. v. Hubbard (14 Cox, 84)] ; Reg. v. Osman (15 Cox, I).] In order to make the statement made by Mrs. Bromley Smith in the presence of Mr. Cast and Dr. Bonney admissible it must bo made clear to the Court that her condition was one of settled hopeless expectation of immediate or almost immediate death. He (Mr. Mathews) had intended to lay the statement before the jury in opening the case, but as counsel for the defence had intimated that they would object to the reception of the statement in evidence he would not tell the jury what were its contents. Beyond that statement there was nothing tending to show or to prove that the defendant performed an illegal operation upon her. Dr. Bonney and Mr. R. N. Cust, a Justice of the Peace for London and Middlesex, were then called, and gave evidence as to the statement made by Mrs. Bromley Smith on the night of the 22nd of March. Before making the statement she said, in reply to a question, “ I am aware that I am seriously ill.” She then proceeded to make the statement, Mr. Cust putting questions to her and Dr. Bonney taking down her answers in writing. Mr. Avory contended that the statement was not admissible in evidence as a dying declaration, because it came within Mr. Justice Cave’s ruling in the case of Reg. v. Mitchell (17 Cox, 503), it having been made in answer to questions. He also contended that the statement was not admissible because it had not been shown that when Mrs. Bromley Smith made it she was in the expectation of immediately impending death. In order to make the statement admissible it must be established that at the time she made it she was not merely in the expectation that she was going to die but that she was in the expecia on of immediately impending death ; but it had not been s own that she was in that expectation when she made the statement. Her answer, “lam aware that I am seriously ill,” was evidence that she was not in expectation of immediately impending death,

Mr. Justioe Bruce said that he thought the statement could not be admitted. It was very necessary in these cases to take great care that these declarations were not admitted unless they came strictly within the rules. In order to make the statement admissible it must clearly appear that the person making it had abandoned all hope of recovery. Here that did-not appear. There was the further point that the statement was made in answer to questions not taken down; and, following the ruling of Mr. Justioe Cave, he thought the statement was not admissible.