LAW REPORT.

New Zealand Police Gazette, Volume XXXVI, Issue 10, 15 March 1911, Page 111

LAW REPORT.

[Before W. G. Riddell, Stipendiary Magistrate, Wellington.—2sth February, 1911.] Black v. Glynn. Judgment. This is an application by the de'endant for a rehearing of the information under which ho v\as convicted for an assault on the informant on the 3rd of February last. The application is made under section 120 of the Jus ices of the Peace Act, 1908, which states that any Justice before whom any information or complaint has been heard may in his discretion grant a rehearing of such information or complaint upon such terms as to him seems fit. The application is opposed by the informant on the grounds : - (1.) That as defendant has paid the fine imposed by the Court the matter is res judicata. (2.) That defendant has no statutory or other right to make such an application, as the offence for which he was convicted is an indictable one, and section 120 does not apply to informations dealing with indictable offences triable summarily. The first objection is in my opinion disposed by the decision in Rex v. Hughes (-12 G.L.R., 19), where it was held by the Court of Appeal that a person who had served a sentence was not absolutely disqualified from obtaining a new trial, but the application must be made promptly or without unreasonable delay. The second objection is of more importance ; but, without discussing the distinction between ordinary offences within a Justice’s jurisdiction and indictable offences triable summarily, it may be noted that section 120 does not refer to any particular kind of offence, but merely confers upon Justices a discretionary power to rehear informations which have already been dealt with by them at some earlier date. I do not think that the position of the section in that part of the Act which deals with the ordinary jurisdiction of Justices is conclusive that it refers only to informations concerning offences not indictable. The main object of the Act is to set out the procedure applicable to cases coming within the jurisdiction of Justices, and by section 4 of the Acts Interpretation Amendment Act, 1908, the division of any Act into parts, and the headings of such parts shall be deemed for the purpose of reference to be part of the Act, but the headings shall not affect the interpretation of the Act. Further, the word “ information ” is defined by the Acts Interpretation Amendment Act as an information made in accordance with the Justices of the Peace Act, 1908, in respeot of an offence punishable on summary conviction ; and summary conviction is defined as meaning a conviction by a Magistrate or one or more Justices in accordance with the Justices of the Peace Act. I think, then, that the information under which defendant was charged with assault eomes directly within the definitions just referred to, and so is coyered by section 120 irrespective of the fact that the offence is an indictable one triable summarily. I am also unable to ses how the procedure or jurisdiction of the higher Court with regard to indictable offences can be affected by holding that Justices have jurisdiction to hear such an application, for subsection (5), section 7, of the Grimes Act, 1908, expressly says that nothing in that Act shall be construed to annul or limit any provisions made by any other Aot for the trial and punishment of indictable offences in a summary way. Section 178 of the Justices of the Peace Act, 1908, confers the necessary jurisdiction on Justices to deal with common assaults in a summary manner, and in this case the usual summary procedure was followed. A similar application was considered in 1898 by Mr. Hutchison, Stipendiary Magistrate, in the case of Rex v. Sjoberg (2 Magistrates’ Courts Reports, p. 27), when he decided that Justices had no jurisdiction to grant a rehearing of an information containing a charge of an indictable offence ; and some considerable time ago 1 dismissed an application for rehearing in the case of Lane v. Carey, partly on the ground that the fresh evidence to be adduced was corroborated only, and partly because I

was not prepared to disagree with Mr. Hutchison’s decision. The present application has, however, been argued more fully than that in Lane v. Carey, and after further consideration I am satisfied that I should not follow the decision in Rex v. Sjoberg. I think defendant has a right to make his application. Mr. O’Leary, for plaintiff. Mr. Gray, for defendant.