LAW REPORT.

New Zealand Police Gazette, Volume XXXIV, Issue 24, 16 June 1909, Page 248

LAW REPORT.

(“ Times Law Reports,” Vol. xxv, page 440.) [K.B. Div. (Lord Alvebsone, C.J., Dabling and Jelf, JJ.)— 23bd Mabch, 1909.] Rex v. the Goveenob of H.M. Prison at Stafford (ex parte Emery). Criminal Law — Deaf-mute —Inability to plead or understand Proceedings—Detention under 39 and 40 Geo. 111, c. 94, s. 2. At the trial of a prisoner, who was stone deaf and was unable to read or write, the jury found that he was mute by the visitation of God, and that he was incapable of pleading to, or taking his trial upon, the indictment, or of understanding and following the proceedings by reason of his inability to communicate with, or be communicated with by, others. Thereupon the Judge ordered that the prisoner should be treated as non-sane, and be kept in custody until His Majesty’s pleasure should be known. Held, That the order was right. In this case a rule nisi for Habeas Corpus directed to the Governor of Stafford Gaol has been obtained on behalf of one F. Emery. The circumstances in which the rule was granted were stated in The Times for 10th March. Mr. Rowlatt appeared to show cause, and Mr. Bosanquet appeared to support the rule. It appeared that the prisoner Emery was stone deaf, and was unable to read or write. He was brought up before Mr. Justice Channell for trial at Stafford Assizes on a criminal charge, and before the case was gone into the jury were asked to find whether he was or was not mute by the visitation of God. They found that he was so, and were then sworn a second time to find whether he was able to plead to the indictment and able to understand the proceedings. As to this they found that he was incapable of pleading to or taking his trial upon the indictment, or of understanding and following the proceedings, by reason of his inability to communicate with, or be communicated with by, others. Thereupon Mr. Justice Channell ordered that he should be treated as non-sane, and be kept in custody until His Majesty’s pleasure be known. The Lobd Chief Justice said that for himself he was glad the case had been argued, and that the Court had had the opportunity to redeclare the position of the matter in Jaw. In his opinion, Mr. Justice Channell and Mr. Justice Jelf had taken the right course. Mr. Justice Jelf, finding that the case was coming on and the prisoner was undefended, had asked Mr. Bosanquet to defend him. When the case was actually reached it was taken before Mr. Justice Channell, the other Judge sitting at Stafford, and Mr. Bosanquet, being dissatisfied with the order made, applied to Mr. Justice Jelf, at whose request he had been acting, for advice as to what steps he ought to take, and Mr. Justioe Jelf authorised him to apply to this Court. He (the Lord Chief Justice), however, did not wish to be understood to adopt the principle that because counsel was asked to defend a prisoner at assizes an obligation was involved on counsel

to take further steps in the interests of the prisoner after the trial. The important point in the case was that the jury had found the prisoner incapable of pleading or of understanding the proceedings by reason of his inability to be communicated with, and upon that Mr. Justice Channell had ordered him to be detained as non-sane. They had to consider whether that order was properly made. Mr. Bosanquet had contended that it was not, because there was no express finding of insanity ; but he would be sorry to have to adopt that argument, and he could conceive of nothing more likely to cause injustice than to say that in such a case as this either the jury must find insanity or the prisoner must be released. The great weight of opinion and judicial decisions had established a practice which had prevailed for sixty years and was in accordance with oommon sense and should not now be overruled. It was true, as Mr. Bosanquet pointed out, that the words of the statute did not refer to inability to plead, but only to insanity; but that fact had been considered in Bex v. Pritchard and Rex v. Dyson (supra), and had been held to be immaterial. It was true that those cases were tried at assizes, and were not binding on this Court; but he would be unwilling in any event to upset a convenient practice whioh had been established for so many years, and those cases were supported by the decision of the Court of Crown Cases Reserved in The Queen v. Berry (supra). There there was no question of general insanity, but only one of inability to understand the proceedings, and it was expressly held that such inability was, in point of law, insanity. Sanity therefore must include ability to follow the proceedings and to understand the accusation and the evidence ; and the order in this case was made in accordance with common-sense and the proper administration of the law. The rule must therefore be discharged.

Me. Justice Darling said that he was of the same opinion. Mr. Bosanquet’s point was that the prisoner had never really been found insane, but it seemed to him that the prisoner had been so found. The jury found not only that he was mute, but that he could not understand the routine of the Court or follow the proceedings or make his own views known. That was a sufficient finding of insanity to bring the case within those which had been cited.

The rule was accordingly discharged, with costs. [Solicitors —Treasury Solicitor ; Official Solicitor.]