Law Reports.

New Zealand Police Gazette, Volume XXVI, Issue 25, 3 December 1902, Page 283

Law Reports.

The Supreme Court decision in the case of Ireland v. Connolly is circulated for the general information of the

Force. The decision makes it necessary, in all cases where a previous conviction is to be proved as a precedent to a further conviction, to comply with the provisions of section 311 of “The Justices of the Peace Act, 1882.” J. B. Tunbridge, Commissioner of Police. Wellington, 27th November, 1902.

Ireland v. Connolly. [New Zealand Laic Reports, Vol. xxi., pages 314-316.]

Appeal from Justices 1282,” Sections 236 and 237 —Improper Admission of Evidence —No Evidence to support Conviction Case stated —Points of Law not raised at the Hearing. On an appeal by way of case stated under section 236 of “The Justices of the Peace Act, 1882,” the deter-

mination of the Magistrate may be reversed if there was no evidence to support the information or some material part thereof.

Appeal from a conviction by a Stipendiary Magistrate, by way of case stated under section 236 of “ The Justices of the Peace Act, 1882.” The facts of the case are sufficiently stated in the judgment. Williams, J.—This is an appeal on a case stated under section 236 of “ The Justices of the Peace Act, 1882,” from the determination of a Magistrate on an information under subsection (1) of section 28 of “ The Police Offences Act, 1884.” The information alleged that the accused had no visible lawful means of support, and had been previously convicted as an idle and disorderly person. The Magistrate convicted the accused. By the above subsection the fact that the accused had been previously convicted as an idle and disorderly person is an essential ingredient of the offence charged in the information, and of which the accused was convicted. The only evidence the Magistrate had before him as to a previous conviction was that of Detective Campbell, who stated that he had seen recorded in the Police Gazette a conviction of the accused as an idle and disorderly person at Auckland on the 20th of September, 1896. The accused’s counsel objected at the time to this statement being accepted as evidence of a previous conviction. Section 237 of “ The Justices of the Peace Act, 1882,” provides that no determination of a Justice shall be appealed against by a case stated on the ground of improper admission or rejection of evidence. It was contended on behalf of the respondent that this section prevented the above objection being taken: that it was open to the accused to have proceeded under section 248 by way of general appeal, or under section 266 by way of prohibition, and that under either of these sections the decision of the Magistrate in this particular could have been reviewed. The evidence admitted in proof of the previous conviction was, of course, not legal evidence of the fact of a conviction at all. It was simply hearsay upon hearsay. When it had been admitted, all that it proved was that Detective Campbell had seen a printed statement that the accused had been convicted. That is not proof that the accused actually was convicted. This Court now has before it all the evidence that was admitted in support of the prosecution, and from that it appears that there was no legal evidence that the accused had been previously convicted. An accused person can only be convicted of a crime on legal evidence, and if there is no legal evidence at all against him he is entitled to be acquitted. If the case had been before a jury it would have been the duty of the Judge, notwithstanding the evidence of Detective Campbell had been admitted, to have directed an acquittal. The accused would be entitled to an acquittal, not because the evidence was wrongly admitted, but because after it had been admitted there still remained no legal evidence against him. It is the want of evidence, and not the admission of evidence, that constitutes the objection here. The question whether in a criminal matter there is, taking the whole of the evidence, a case to go to the jury is a question of law, and is entirely distinct from the question as to whether any particular evidence has heen improperly received. The case of Knight v. Halliwell (L.R. 9 Q.B, 412), arising under similar sections of the English Act (20 & 21 Viet., section 43), decides that the Court will hear and determine questions of law arising on the facts stated by the Justices, though they were not taken before the Justices or expressly reserved for the consideration of the Court. Here the question as to whether there was any evidence before the Magistrate to justify the conviction of the accused directly arises from the facts as stated. If there is some legal evidence, then section 237 prevents the objection being taken that other evidence not legal has been received, which, in the absence of section 237, would be an objection fatal to the conviction: Reg. v. Gibson (18 Q.B.D. 537). But there must be some legal evidence. The determination of the Magistrate will be reversed.

Rex v. Power. (New Zealand Laiv Reports, Yol. xxi., pages 407-409.)

Justices — Jurisdiction—Taking of Depositions—Committal for Trial —-Place of Commission of Offence —“ The Justices of the Peace Act, 1882,” Sections 4, 118, 145. Justices, or a Magistrate acting under the Justices of the Peace Act, sitting in any part of the colony, have jurisdiction to take depositions on a charge of an indictable offence against a person brought before them, in whatever part of the colony the offence may be alleged to have been committed, and to commit the accused for trial at any place within the colony. It is not necessary that the committal should be for trial at a place within the judicial district of the Supreme Court within which the offence is alleged to have been committed. This was a Crown case reserved by Conolly, J,, for the opinion of the Court of Appeal. The accused were resident in the Waikato district, within the Auckland Judicial District of the Supreme Court, and were arrested there and brought before the Stipendiary Magistrate at Cambridge on a charge of horse-stealing, alleged to have been committed near Napier, in the Wellington Judicial District of the Supreme Court. The Magistrate took the depositions, and committed the accused for trial at Auckland at the next sittings there. The accused appeared at the sittings, and pleaded guilty. Conolly, J., reserved for the opinion of the Court of Appeal the questions whether the Magistrate had jurisdiction to take the depositions and to commit the accused for trial at Auckland.

Stout, C.J.—ln my opinion the Magistrate had jurisdiction to take the depositions and to commit the accused for trial in Auckland, although the offence had been committed in the Wellington District. No limitation is placed upon the jurisdiction of a Magistrate with reference to the place where an offence has been committed. A Magistrate is appointed for the whole colony, not for a particular district, and he may sit anywhere and deal with the business which may he brought before him wherever he may he sitting. Then, again, there is nothing in our statutes saying that the place of the commission of an offence is to fix the place for the trial of the person charged. No doubt, if it causes inconvenience to the accused to be tried at a place distant from the place of the commission of the offence it might be proper to commit for trial in the district where the offence was committed, and if the accused has been committed for trial at a particular place and that causes inconvenience there is power in the Supreme Court to change the place of trial. In this case, however, no inconvenience was caused to the accused. On the contrary, it was better for them. Auckland was the place of sittings of the Supreme Court nearest to where they resided, and they surrendered to their bail there and pleaded guilty. I am of opinion that the first and second questions should be answered that the Magistrate had jurisdiction to take and complete the depositions and to commit the prisoners for trial, and that he had jurisdiction to commit them for trial at Auckland, although the offences were committed in Napier. It is unnecessary to answer the third question.

Williams, J.—l am entirely of the same opinion, and have nothing to add. Denniston, J.—l concur.

Conolly, J. —I concur, though the decision goes against my inclination in the matter. The case was, I think, dealt with in an unusual and, in my opinion, irregular manner. As the law stands, however, it appears that a Magistrate may commit for trial at whatever place he pleases. His Honour the Chief Justice has said that no inconvenience was caused to the accused in this case. But, on the other hand, the action of the Magistrate necessitated the bringing of all the witnesses from Napier to Auckland. That should, in my opinion, have been considered. Edwards, J.—l concur in what has been said by His Honour the Chief Justice. Cooper, J.—l concur also.