LAW REPORT.

New Zealand Police Gazette, Volume XXXVI, Issue 12, 29 March 1911, Page 133

LAW REPORT.

(“ 'Times Law Reports,” vol. xxvii, page 156.)

[K.B. Div. (Lord Alverstone, C.J., Pickford and Avoey, JJ,). — 16th December, 1910.] Rex v. Justices of Hertfordshire.

Justices Committal of Accused for Trial after electing to be dealt with summarily Jurisdiction of Quarter Sessions to try Indictment —Summary Jurisdiction Act, 1879 (42 and 43 Viet c. 49, s. 12).

Justices at petty sessions, before Whom a person was charged with larceny, considering, after hearing the evidence for the prosecution, that the case was not serious, ao-ked the accused under section 12 of the Summary Jurisdiction Act, 1879, whether he desired to be tried by a jury or whether he consented to be dealt with summarily. The accused elected to be dealt with summarily. After hearing the evidence for the defence tho Justices, considering the case to be more serious, refused either to convict or acquit, and committed the accused for trial. An indictment was duly found, but it was objected on behalf of the accused that quarter sessions bad no jurisdiction to try the case after the accused had elected to be dealt with summarily at petty sessions. The quarter sessions thereupon declined to try the case. Held, Thao the Justices in petty sessions were entitled, notwithstanding the accused’s election to be tried summarily, to commit him for trial, and therefore that the jurisdiction of quarter sessions to try the case was not ousted.

In this case a rule had been obtained directing the Justices of the County of Hertford to show cause why a mandamus should /not issue commanding them to proceed to try all indictments found on a true hill by the Grand Jury against one Edward Amos Hale at the quarter sessions of the said county on the grounds that (a) the Court of Quarter Sessions had full jurisdiction to proceed with the trial, and (6) that as the said Hale was indicted on a charge of felony the charge ought to be beard and determined by tie said Court irrespective of any proceedings before Justices. Hale was charged with stealing three turkey bens. The Justices before whom lie was brought heard the evidence of the prosecution, and than, thinking that the matter was not serious, and seeing that the property alleged to be stolen was of less value than £2, they asked the prisoner, under section 12 of the Summary Jurisdiction Act, 1879, whether he would prefer to be tried by a jury or to be dealt with summarily, and he elected to be dealt with summarily. The case for the defence was then proceeded with, and finding that after all it raised issues which seemed to them serious, the Justices refused either to convict or acquit, but committed the prisoner for trial at the Hertfordshire Quarter Sessions, allowing him bail meanwhile. When the case was called on at the sessions objection was taken on behalf of the prisoner that the Court had no jurisdiction to try him, because after he had once elected to be dealt with summarily the Justices had no power to restore his case to the position of an indictable offence. The chairman directed that the indictment should remain on the file, but that it should not be proceeded with without leave of the Court of King’s Bench, and the rule for a mandamus was obtained accordingly. Mr. Danckwerts, K.C., and Mr. Tindal Atkinson appeared to show cause for the Justices of quarter sessions ; Mr. Bodkin and Mr. J. H. Murphy appeared for the Crown in support of the rule ; and Mr. Clarke Hall showed cause for the prisoner Hale. Mr. Danckwerts in his argument cited the cases of Reg. v. Gockshott (14 The Times L.R. 264) ; [lß9B] 1 Q.B. 582), Rex v. Beesby (25 The Times L.R. 337 ; [1909] 1 K.B. 849), in addition to the sections of the statutes referred to in the judgment. Mr. Clarke Hall followed on the same side.

Mr. Bodkin, for the Crown, cited the oases of Reg. v. Sansome (19 L.J., M.C. 143), Reg. v. Bird (15 The Times L.R. 26 ; 62 J.P. 760), and St. Andrew’s, Holborn v. St. Clement Dar.es (2 Salk. 606). Mr. Murphy followed on the same side.

The Lord Chief Justice, in giving judgment, said : An indictment bad been found for larceny, an offence which could also be tried summarily. At the Petty Sessions the Justices, at the close of the evidence for the prosecution, asked the proper questions of the accused, and proceeded to hear the case on the theory that they were going to deal with it summarily. They changed their view, and committed the accused for trial. An indictment was found at Quarter Sessions, but on hearing the above facts the Court of Quarter Sessions came to the conclusion that they ought not to hear the ease without the judgment of this Court as to their jurisdiction. In their opinion the rule should be made absolute. The indictment was properly found, and consequently the Quarter Sessions had jurisdiction to hear the case. He doubted very much whether anything which was done before the Justices deprived them of this jurisdiction, unless Mr. Danckwerts was right in saying that the case was one which had ceased to be a ease of an indictable character and could only be dealt with summarily. It required the clearest possible language to oust the jurisdiction of Quarter Sessions. He could not see any point which could be raised either by plea or by motion to quash the indictment which went to the jurisdiction of Quarter Sessions. Ho now came to the other branch of the argument, which was Mr. Danckwerts’s

answer to the suggested right of Quarter Sessions to dispose of the indictment-. He said that when proceedings were first taken under section 12 of the Summary Jurisdiction Act, and the option was given to the accused to be tried summarily, and the Justices had embarked on the inquiry, a state of things arose which made it beyond their power to change their minds, and to do more than they could do summarily—namely, either convict or discharge. He based his argument on sections 12 and 27, and said that the combined effect of the sections was that the procedure was so altered by the decision to deal with the case summarily that the case ought not be allowed to be dealt with in any other other way. He (the learned Judge) could not see why anything which might be elicited in the course of the defence of a case being tried summarily should not form part of all the circumstances of the case. It must often happen that a case was at first treated as one of no particular importance, and that the accused, perhaps encouraged by that circumstance, went into the witness box and gave evidence, setting up in the course of it his own good character. Thereupon he might be cross-examined under the recent Act, and it might be shown that he was an old offender, ft seemed almost impossible to conrond that that was not a circumstance which the Justices ought to take into their consideration. It was not disputed that in some cases under certain statutes their discretion still existed in the above circumstances. There was nothing to show what had been called a bargain between the Justices and the accused, that if the latter elected to be tried summarily, the former would deal with him summarily under all circumstances, and take the case out of the jurisdiction of another Court. He thought, therefore, that the Justices had jurisdiction to exercise their discretion up to the time of passing sentence. The point which pressed him for a time was the fact that the evidence had been taken under circumstances in which it would not have been taken had the case gone on without any expression of opinion that it should be heard summarily. It was said that the accused might have given bis own evidence, for the usual caution that he need not say anything, but that if he did it might be used in evidence against him would have been given. But it was important to remember that the statute which made that caution necessary was passed before prisoners were allowed to give evidence in their own behalf. Section 3 of the Act of 1867 was passed to enable the defence to have witnesses called and their evidence put on record. Therefore this afforded very little argument in support of the contention that there was a bargain. Forgetfulness of the fact by the Justices that they might change their minds and their consequent c mission to caution the accused before he gave evidence could not be regarded as more than an irregularity. He did not think that there had been such an alteration in the position of the accused as made it unjust that he should be committed for trial. The Justices’ discretion existed until all the circumstances of the casß were before them, and it was no answer to that committal that they had exercised their discretion too soon. Continuances must be entered, and the Quarter Sessions directed to try the case.

Mr. Justice Pickford and Mr. Justice Avory delivered judgments to the same effect. [Solicitors—J. N. Mason, agent for C. E. LoDgmore, Hertford ; Director of Public Prosecutions ; and T. Duerdin Dutton.]