LAW REPORT.

New Zealand Police Gazette, Volume XXXV, Issue 24, 22 June 1910, Page 266

LAW REPORT.

(“ N.Z. Law Reports,” Yol. xxix, page 376.) Rex v. Pyke and McGill. Criminal Law —Challenge for Cause—Joint Indictment — One Accused tried alone and found Guilty—Same Jury cannot be challenged for Cause on Trial of other Accused. Two persons who were out on bail were jointly indicted for a crime. One of them surrendered to his bail, was tried alone, and found guilty. The other person, who had failed to appear through an accident, surrendered to his bail the next day. Held, That on the trial of the second accused his counsel could not challenge for cause on the ground of prejudice any of the jurymen who had sat on the trial of the first accused. Held, further, That it would he improper for the Crown Prosecutor acting on the suggestion of counsel for the accused to stand aside all the jurymen who had sat on the former jury. When this case was called on McGill, who was on bail, did not appear. The case against Pyke was then taken, and he was found guilty. On the following day the case against McGill was called on. Wilford, for the accused:—

The indictment charges McGill and Pyke jointly with this offence, and Pyke has been found gudty. A certain number of the jury-panel whose names appear on the back of the indictment were empanelled to try Pyke’s case. I ask for a ruling as to whether the Court will allow it to be a ground of challenge for cause that those jurors have served on the jury in the case in which the prisoner Pyke was undefended. I wish in this trial, if possible, to have an absolutely fresh jury who have not tried practically the same facts.

[Chapman, J. —I do not think that can be called a challenge for cause. Cause means favour.] Prejudice is the same thing. [Chapman, J.—l cannot assume prejudice.]

Cannot your Honour assume this: that a jury having heard the case, and having unanimously found the other man guilty, that it is beyond human nature for a man not to be somewhat prejudiced in favour of the facts that he has already given a verdict upon. The slightest reason for cause is sufficient if your Honour thinks that it is sufficient. [Chapman, J. I never heard of its being treated as cause.]

This has been an extraordinary happening, because, as it has turned out, the prisoners are not tried together purely because McGill himself accidentally failed to attend. He is now at a disadvantage, having only six peremptory challenges.

Chapman, J. —In the case of Reg. v. Sullivan (8 A. & E. 831; 8 L.J. M.O. 3) it was laid down that “ A person who has acted as a grand juror on the finding of a bill of indictment may also be challenged for cause if returned to serve on a pettv jury either on the trial of that indictment or on any other indictment for the same offence.” A grand juror is said technically to be a party to the indictment. Then, it is also stated that “ A person who sat upon a former petty jury which convicted other defendants upon the same indietrmnt is not therefore subject to challenge ” : Archbold’s Criminal Practice (23rd ed. 204). That is exactly this case, and that represents the practice of this Court. I cannot therefore hold as a matter of law that merely to show that a juror had served on the jury that tried the other man would be a disqualification. Wilford.— Perhaps the Crown would help me out of the difficulty by asking them to stand aside.

Myers.—No, I cannot do that, for this reason: that if those twelve are ordered to stand aside the panel is one before which I would not try this cas-e, for reasons which I need not indicate. I am prepared to meet my friend to this extent: lam prepared to allow this case to stand over till Monday. Wilford. —If my friend will take the course of standing those jurors aside I will undertake not to challenge a single juror.

Chapman, J.—l do not think you can arrange such a matter as that. You must reserve your right to challenge, and the Crown must reserve its rights. In a single case such a thing as the Crown acting in this way on the suggestion of the prisoner may be proper, but not under such an arrangement. Within certain limits that has at times been done, but only for some special reason and in isolated cases. I must presume that the Crown Prosecutor has some reason for saying that he does not want the case to be tried before the small panel that is left. Wilford. —Then I accept the offer to take the case before a fresh panel. Chapman, J.— That is the proper solution. Solicitors for the accused—Wilford & Levi (Wellington).

Solicitor for the Crown —The Crown Solicitor ( V\ ellington)