LAW REPORTS.

New Zealand Police Gazette, Volume XLI, Issue 24, 21 June 1916, Page 443

LAW REPORTS.

(“ New Zealand Law Reports,” 1916, page 407.)

[Court of Appeal—(Stout, C.J., Edwards, Cooper, Sim, and Hoskino, JJ.) —27th March and 7th April, 1916.]

Rex v. Haynes and Haynes

Criminal Law —False Declaration —Variation from Statutory Form—Omission of Reference to Justices of the Peace Act—Whether a “Slight Deviation”—Exhibit not identified —Crimes Act, 1908, s. 138 —Justices of the Peace Act, 1908, ss. 287, 288, 289 —Acts Interpretation Act. 1908, s. 6 (h). The prisoners—who were husband and wife—were found guilty under s. 133 of the Crimes Act, 1908, the wife for making a false declaration in respect of a claim under a fire-insurance policy, and the husband for abetting her therein. The declaration was made by the wife before a Justice of the Peace. Form 50 prescribed by s. 287 of the Justices of the Peace Act, 1908, was not followed, but for the concluding clause thereof the following was substituted : “And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.” Under the heading of “Particulars of Claim” the declaration referred to the articles as “ Household furniture and effects as per list,” but no such list was exhibited to the declarant at the time of making the declaration or annexed to the declaration. Held, per Curiam (Edwarls, Cooper, Sim, and Hosking, JJ.; Stout, C.J., dissenting), quashing both convictions, The form used was not merely a “ slight deviation ” from the form prescribed within the meaning of the Acts Interpretation Act, 1908, s. 6 (A), but the substitution of an entirely different form. Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246) and Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R, 470) discussed. Per Edwards, Cooper, Sim, and Hosking, JJ. —A false declaration to be punishable under the Crimes Act, 1908, s. 133, must be a false declaration made under and in conformity with some statutory provision. Dicta of Denniston and Cooper, JJ., in Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R, 246) dissented from. Per Stout, C.J.—The failure to identify the articles referred to in the declaration by a list annexed thereto or exhibited to the declarant at the time of the making of the declaration was immaterial, as the jury had found the declaration to be false. Per Edwards, J.— Quaere, whether a Justice of the Peace in New Zealand can take a declaration under the

Statutory Declarations Act, 1835. Crown case reserved by Edwards, J., under the Crimes Act, 1908, s. 442, for the opinion of the Court of Appeal. The prisoners were arraigned at Napier on the 14th March, 1916, under an indictment charging the female prisoner with wilfully making a false declaration that would amount to perjury if made on oath in a judicial proceeding, and charging the male prisoner with abetting the female prisoner therein. Both prisoners were found guilty. The declaration in respect of which the prisoners were found guilty, so far as it is material, was as follows :

Particulars of Claim. Articles damaged or destroyed : Household furniture and effects as per list. Sum insured with the company : .€l5O. Amount claimed : €135. Olive Haynes. Declaration. I, Olive Theresa Haynes, do hereby solemnly and sincerely declare that the foregoing is a true and faithful account of the loss sustained by me on the occasion of the late fire at Mangatoro on the 12th December, 1915 ; that I have in no manner caused the said loss or by any fraud or wilful misrepresentation sought unjustly to benefit thereby. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury. Declared at Dannervirke, in the\ Dominion of New Zealand, this fourteenth day of December, one j- Olive Haynes. thousand nine hundred and fifteen, before me— ) Thos. Bain, J.P.

The declaration was on a printed form, and the fillingin was done by Mr. Charles Cecil Prime, fire-loss adjuster for the insurance company. The female prisoner immediately prior to her making this declaration had handed to Mr. Prime a list of the chattels alleged to have been destroyed by the fire. It was proved at the trial that this was the list to which the particulars of claim mentioned in the declaration were intended to refer. But this list was not annexed to the declaration; nor was it exhibited to the declarant at the time of her making the declaration; nor was it shown to the Justices of the Peace at the time when the declaration was made, nor in any way referred to in his presence. Mr. Prime completed the declaration, accompanied both prisoners to the place of business of the Justice of the Peace, and stood by the prisoners with the list of chattels previously supplied to him in his hand ; the Justice of the Peace satisfied himself that the declarant knew the contents of the document, and she thereupon declared the contents thereof to be true, and it was completed. The question for the determination of the Court was whether in these circumstances the prisoners or either of them had been properly found guilty. The following are the enactments upon which the decision of the Court turned : Crimes Act, 1908, s. 133 : Every one is liable to two years’ imprisonment with hard labour who makes a statement or declaration which would amount to perjury if made'on oath or affirmation in a judicial proceeding, upon any occasion on which he is permitted by law to make any statement or declaration before any officer authorized by law to permit it to be made before him, or before any notary public to be certified by him as such notary. Justices of the Peace Act, 1908, ss. 287, 288, and 289 : 287. Where by any law now in force a declaration is directed or authorized to be made and subscribed in the form prescribed by the Imperial Act known by the Short Title of “ The Statutory Declarations Act, 1835,” it shall be sufficient, in case the declaration is to be made within New Zealand, if such declaration is made and subscribed in the form (No. 50) in the Second Schedule hereto. 288. Any Justice, solicitor, notary public, or other officer now by law authorized to administer an oath, or any Postmaster from time to time authorized for that purpose by the Governor by notice in the Gazette, may take and receive the declaration of any person voluntarily making the same before him in the form (No. 50) aforesaid. 289. If any declaration made under this Act is false or untrue in any material particular, the person wilfully making such false declaration is guilty of perjury. Justices of the Peace Act, 1908, Second Schedule, Form 50 :

I, A. 8., of [ lnsert place of abode and occupation], do solemnly and sincerely declare that i[/ nsert. facts]. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Justices of the Peace Act, 1908.

Acts Interpretation Act, 1908, s. 6 ( h) : Wherever forms are prescribed, slight deviations therefrom, but to the same effect and not calculated to mislead, shall not vitiate them.

B. J. Dolan, for the appellant : The first objection to the declaration is to the words “by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.” If the declaration had referred to the Justices of the Peace Act, 1908, or the Statutory Declarations Act, 1835, it would have been unobjectionable : Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R, 246). [Stout, C!.J.—There the offence was laid under the Justices of the Peace Act, 1908, not under the Crimes Act.] Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470). The second objection is that no list was annexed to the declaration; the list was not certified : In re Hinchliffe ([1895] 1 Ch. 117). In the Annual Practice (1916, p. 693) it is laid down that the exhibit is part of the affidavit. There must be formalities in connection with the declaration : Reg. v. Hudson (1 F. & F. 56); Hewetson v. Todhunter (2 Sm. & G. appendix 8, p.-ii); Taupo Totara Timber Co. v. Gilfedder (27 N.Z. L.R, 947; 11 G.L.R. 94). The Solicitor-General (J. W. Salmond. K.C.), for the Crown :

The form of the declaration is immaterial, and the declaration is valid under the Acts Interpretation Act, 1908, s. 6 (A). This is a slight deviation, not calculated to deceive. In Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246) the deviation was more serious. There was no reference there to any statute, and consequently no warning as to the liabilities of a false declaration. Here the Act, instead of being named, is described, which is more impressive. There is only one statute to which this could refer, and that is the Justices of the Peace Act. In Rex

v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246) observations were made that the pi’osecution might have been successful if made under the Crimes Act. Section 288 of the Justices of the Peace Act, 1908, authorizes a Justice of the Peace to take any declaration, whether under the Act or not : Reg. v. Boynes (1 Car. & K. 65). Until that case it was arguable that Justices could not take voluntary declarations not under an Act. As to the list not being attached, even if there had been no list at all the declaration was false. Dolan in reply. Cur. adv. vult. 7th April.—Stout, C.J. : There are two questions raised in this special case which has been reserved for the opinion of this Court. The first question is whether the declaration, which ends as follows—namely, “And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury”—is a valid declaration. The declaration is, it is said, made by virtue of the provisions of ss. 287 and 288 of the Justice's of the Peace Act, 1908. Those sections are as follows : £His Honour quoted the sections.] It will be observed from this form that the words “ and by virtue of the Justices of the Peace Act, 1908,” have been omitted from the declaraiton, and in lieu of them there have been inserted the words “ and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.” This description, however, certainly fits the Justices of the Peace Act, 1908, for the words of s. 289 of the Act are, “If any declaration made under this Act is false or untrue in any material particular, the person wilfully making such false declaration is guilty of perjury.” There is nothing, therefore, in the declaration that was made by the prisoner contradictory of the form in the schedule, nor asserting anything that is not asserted in the Justices of the Peace Act itself. In fact, what has been inserted is a good description of what the law is in reference to making false declarations. Now, the object of the form is apparent, and has been referred to in the case of Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246). (See the judgments of their Honours Mr. Justice Edwards and Mr. Justice Chapman.) The need of having some such form is, as pointed out in the judgments in that case, that persons making a declaration may know that they are not merely signing their names to a scrap of paper, but that they are laying themselves open to a criminal charge if any material allegation in their declaration is untrue. The statute says, however, that the Justices have power to receive the declaration in the form mentioned in the schedule. That, no doubt, implies that the form must be followed. We have, however, in our Acts Interpreta tion Act a clause which deals with questions of form. Section 6 [h) provides, “Wherever forms are prescribed, slight deviations therefrom, but to the same effect and not calculated to mislead, shall not vitiate them.” It is clear that the deviation here is to the same effect; secondly, it is also clear that this deviation could not have misled the declarant; and the only question that could be raised is, is this a slight deviation? The subject-matter is the same. There has been no change of substance in the declaratory form that has been used ; and, so far as a warning to the declarant is concerned, it is a far more clear warning than the form mentioned in the Act. If, then, the object of this form was to warn declarants of the serious step they were taking in making declarations, then this alteration is a more clear warning than the form in the schedule to the Justices of the Peace Act. Is it, then, such a slight deviation as s. 6 (A) provides for ? There is no such provision in the English Acts Interpretation Act; and if, as it has been said, we must, in dealing with our Interpretation Act, treat our statutes beneficiently, surely this is a case in which this subsection ought to be applied. If the form can be altered at all, this alteration, in my opinion, comes within what is allowed by sub-s. (h). The question may be tested brushing, Could the date be altered ? For example, if the year 1909 had been inserted as the date of the statute, would that have made the declaration invalid ? That would have been a greater deviation than the deviation made in this declaration, for we should have had the title of an Act that could not have been identified. The statutes for 1909 contain no Act dealing with Justices of the Peace. Again, could the name of the Act be otherwise changed? If it were changed in any way that might make it doubtful what statute was meant, that might not be termed a slight deviation. In fact, if this deviation is not valid, then no possible deviation that could be sug gested would be valid, and sub-s. (A) can never apply to a change of this form of declaration. If an alteration is

allowable that will show what statute is meant, then this deviation point inevitably to the Justices of the Peace Act, 1908. It was suggested that the description of the Act is inaccurate since, because of the decision in Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470), the Justices of the Peace Act does not provide for the punishment of persons making a false declaration as if they were guilty of perjury. The words of s. 289 of the Act are that a person wilfully making a declaration false or untrue in any material particular is guilty of perjury. The punishment provided appears in the Crimes Act. In Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470), however, it was held that, as perjury was defined in the Crimes Act as a false oath or affirmation in a judicial proceeding, a false declaration could not be punished as perjury. It is not necessary in this case to consider that decision. I should have thought that it an Act says that a person doing a particular thing is guilty of perjury, that means that he is guilty of what the law calls perjury, even though it uses in its definition of “perjury” in the Act providing for the punishment of perjury some things that the person has not done. The act done is perjury, therefore, whether it was in a judicial proceeding or not, and it is to have the same consequences as if done in a judicial proceeding. This act of the prisoner’s is punishable, at all events, under s. 133 of the Crimes Act if it would have amounted to perjury if made in a judicial proceeding. It is no doubt difficult to define the word “ slight.” This was pointed out by the Lord Justice Clerk in the Scotch case of Cruikshank v. Northern Accident Insurance Co. Ltd. (23 Ct. of Sess. 4th ser. 147). He said of this word, “That is a word which may be used by different persons according to the variety of views which they arc in the habit of taking of things.” And again, “One man could truthfully use the word ‘slight’ where another would use the word ‘ great.’ ” The word is therefore indefinite. In fact, to try to define accurately what such an adjective as “slight” means would revive the sophism of Chrysippus, the ancient Greek. When does a deviation become slight, and when does it become large or great? One meaning of “slight” is the phrase “of no importance.” Is there anything in the context which shows what the Legislature considered of importance in connection with this matter of the declaration ? In my opinion, there is. There are two limitations—they might be called definitions —given. The deviation must be (a) to the same effect, and (b) not calculated to mislead. The expressions of opinion by some of their Honours who decided Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R, 246) concur. They say, as I have pointed out, what the object of this part of the form is—viz., to warn the declarant. Further, in dealing with the titles of Acts in indictments or in declarations, when the practice of the Criminal Courts was to declare slight things variances and quash the indictment, and when in our civil practice there w r ere special demurrers about trifles, it was held that citing a statute by a title, but not the exact title of the Act, was not sufficient to make a declaration or an indictment bad. Two cases may bo referred to. In Reg. v. Westley (Bell’s Crown Cases, 193) it was held that though a statute was mentioned by an incomplete title, nevertheless the indictment was not bad. Pollock, C.B. said {lbid. 207), “ What I am about to state is no part of the judgment which I have given, but my own opinion, though I believe it to be the opinion of every member of the Court also. In a case where the title of an Act of Parliament is not accurately stated, but is stated with so much clearness and accuracy as to enable the Judges, who know the titles of all the Acts that have ever been passed, to know the Act referred to, and to leave no possible doubt on their minds upon the matter, I must say I, for one, notwithstanding the cases that were cited, sitting in this Court, am prepared to hold that a variation so small and insignificant furnishes no ground for objection. And lam not prepared to apply the doctrine that has been laid down in the cases that have been cited.” And in a civil case on a special demurrer —Esdaile v. Maclean (15 M. & W. 277, 280) —Mr. Baron Parke said the citing of a statute by an incomplete title did not matter.

What, then, the Court has to consider, in my opinion, is the substance of the matter, not a form which could not have misled the accused, and which told them that if a false declaration was made they would be subject to punishment. A material false statement has been made, and the jury have properly so found; and unless we are to be bound by punctilious forms which in civil and criminal cases have been abolished, and to which this sub-s. (h) was supposed to have universal application, I am of opinion the conviction should stand.

The next and only other question is whether the declaration declaring that certain particulars were true is invalid because in the particulars there is reference to a

list, and that list was not exhibited to the declarant at the time of the making of the declaration nor annexed to the declaration. In my opinion this objection is untenable. What the jury has found is that the declaration was false. That declaration was that certain household furniture was damaged or destroyed. There was a reference to a list, but it is clear that the articles referred to were not damaged or destroyed, and so the jury has found. It was not necessary to set out the list. The only value of the list is to identify the articles that were said to have been damaged or destroyed. I am therefore of opinion that on both grounds the conviction should be affirmed.

Edwards, J. : The prisoners were indicted under s. 133 of the Crimes Act, 1908, the female prisoner for making a declaration which would amount to perjury in the conditions mentioned in that section, the male prisoner for abetting hei in the commission of that crime. The declaration was made by the female prisoner before a Justice of the Peace. The fonn (No. 50) prescribed by the 287th section of the Justices of the Peace Act, 1908, was not followed; but in lieu thereof the following words were substituted : “And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.” This being the state of the facts, two questions arise for determination by this Court : First, does a declaration in the foregoing form comply with the requirements of the Justices of the Peace Act, 1908, ss. 287-289’: second, if not, are the prisoners nevertheless liable to indictment under s. 133 of the Crimes Act, 1908 ? In Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R, 246) it was held that in order to support a conviction under s. 289 of the Justices of the Peace Act, 1908, a declaration must be made under that Act; that the only declaration that can be made under that Act is a declaration in form No. 50; and that, as the words “and by virtue of the Justices of the Peace Act, 1908, which occur in the form, had been omitted from the declaration which the prisoner had made, he could not be convicted under s. 289. The Solicitor-General admits the authority of this case, but he contends that the declaration in the present case sufficiently complies with the requirements of the Justices of the Peace Act. Tn support of this contention he relies upon s. 6 (/(.) of the Acts Interpretation Act, 1908, which provides that “ Wherever forms are prescribed, slight deviations therefrom, but to the same effect and not cal culated to mislead, shall not vitiate them.” In my opinion, there has not been in the present case merely a slight deviation from the form prescribed, but the substitution of an entirely different form. This substituted form does not refer to the Justices of the Peace Act. 1908, but it has been assumed that it correctly states the consequences to a declarant making a false declaration under that Act.

To substitute for a portion of a prescribed form, which consists solely of a reference to the statute by its short title, a statement, however correct, of the effect of the sections which deal with statutory declarations is, in my opinion, neither in form nor in effect a mere deviation from the prescribed form. The omitted portion of the prescribed form consists of six words and four figures. These inform the declarant that he is making a declaration under the Justices of the Peace Act, 1908. If he desires to know what that means he ought, in theory at all events, to be able to obtain information upon that point from the Justices of the Peace before whom he makes the declaration. The substituted form, in nineteen entirely different words, informs him that if he makes a false declaration he will be punishable for wilful and corrupt perjury, but it does not refer him to the statute whence this result is supposed to ensue, and upon that point the Justice of the Peace would certainly not be able to advise him. Moreover, the substituted form does not correctly state the law. The 289th section of the Justices of the Peace Act does, it is tr-ue, state that the person who makes a false declaration is guilty of perjury; but, as has been explained by Mr. Justice Denniston in a very clear and convincing judgment in Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470), that provision is ineffectual, and the person who makes a false statutory declaration can be indicted only under s. 133 of the Crimes Act, 1908, as has been done’in the present case. It seems scarcely necessary further to pursue this subject, but I may add that in my opinion statutory provisions which entail such serious criminal consequences as ss. 287 to 289 of the Justices of the Peace Act, 1908, must be strictly followed. Not only must the declaration be in the form (No. 50) to bring it within the Act, but the authority of the Justice of the Peace to take the declaration is,by s. 285 expressly limited

to an authority to take it in that form. A trifling deviation from that form may perhaps not vitiate the declaration, but the deviation in such case must be so trifling as to leave the form in substance the form prescribed. It was suggested at the hearing that the declaration in this case might be good under the Statutory Declarations Act, 1835, but (assuming that a Justice of the Peace in this country can take a declaration under that Act, as to which I am by no means certain) the Imperial Act cannot be relied upon in aid of this declaration. The Imperial Act, like the local Act, requires the declaration to be made in a prescribed form. To this Act the provisions of the Acts Interpretation Act, 1908, do not apply, and there can be no deviation from the form prescribed. I pass now to the consideration of the second question : Are the prisoners liable to indictment under s. 133 of the Crimes Act, 1908, although the declaration does not comply with the requirements of the Justices of the Peace Act, 1908? The Solicitor-General frankly admits that in his judgment the prisoners are not so liable ; but as this point was raised in Rex v. Smith (29 N.Z. L.R. 244 ; 12 G.L.R. 246), though not decided, and two of the learned Judges intimated that they inclined to the opinion that a prisoner could in such case be so indicted, it is necessary to deal briefly with this question. In my opinion it is clear that a false declaration, to be punishable under the provisions of s. 133 of the Crimes Act, 1908, must be a false declaration made under and in conformity with some statutory provision—in this case, under and in conformity with the Justices of the Peace Act, 1908. Section 133 of the Crimes Act applies to declarations made “before any officer or person authorized by law to take or receive the same.” The authority of the Justice to take declarations under the Justices of the Peace Act, 1908, is given by 7 s. 288, and it is limited to an authority to take and receive the declaration of any person voluntarily making the same before him in the form (No. 50) aforesaid. If, therefore, the declaration was not in the form (No. 50) the Justice had no authority to take it, and the case does not come within s. 133 of the Crimes Act.

For the foregoing reasons I am of opinion that the conviction of each of the prisoners must be quashed. Cooper, J. : I am not satisfied that the deviation in the declaration made by the female prisoner from the form of declaration prescribed in the Justices of the Peace Act, 1908, is a “slight” deviation within the meaning of paragraph (/ s. 6, of the Acts Interpretation Act, 1908. In my opinion the omission of the words “the Justices of the Peace Act, 1908,” is not cured by the insertion of the words “ an Act of Parliament.” These words do not, I think, necessarily import that the declaration is made under the Justices of the Peace Act, 1908, or under any Act of the Parliament of New Zealand, but leave the matter open to conjecture. The word “slight” means “immaterial,” and I think that the deviation in the declaration from the prescribed form is not “immaterial.” I think, therefore that the conviction should be quashed. In Rex v. Smith (29 N.Z. L.R. 244 ; 12 G.L.R. 246) I expressed the opinion that, although the declaration did not contain a reference to the Justices of the Peace Act, the prisoner might probably have been indicted under s. 133 of the Crimes Act. Upon further consideration I am now satisfied that an indictment could not, under the circumstances disclosed in that case or under those disclosed in the present case, be supported under s. 133, and I agree with what Mr. Justice Edwards has said upon this point in the present case.

Sim, J. : The first question to be determined is as to the meaning of the words “ a statement or declaration ” in s. 133 of the Crimes Act. 1908, under which the accused were indicted. They must be taken, I think, to refer to a statement or declaration made under the authority of some statutesuch, for example, as the Statutory Declarations Act, 1835, or the Justices of the Peace Act, 1908. I think also that in order to constitute the offence created by s. 133 the statement or declaration must have been made in accordance with the provisions of the statute under which it was intended to be made. In the case of Rex v. Smith 1 29 N.Z. L.R. 244; 12 G.L.R. 246) it was suggested by two of the learned Judges who decided that case that a person might be convicted under s. 133 of the .Crimes Act of making a false declaration under the Justices of the Peace Act, although the declaration had not been made in the prescribed form. It seems to me, however, that this suggestion is one that cannot be adopted; and I think that a declaration which is not a declaration for the purposes of s. 289 of the Justices of the Peace Act cannot be a declaration for the purposes of s. 133 of the Crimes Act. This, indeed, seems to follow from the decision in Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470). in which it

was held that a false declaration made under the Justices of the Peace Act was punishable only under s. 133 of the Crimes Act.

The declaration in the present case was intended apparently to have been made under the Justices of the Peace Act, 1908. It does not follow, however, the form prescribed by ss. 287 and 288 of that Act. The question to be determined is whether it is still a declaration under that Act, notwithstanding this departure from the prescribed form. It is clear from the decision of this Court in Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246) that it cannot be so treated unless the departure from the prescribed form is of the nature specified in s. 6 (h) of the Acts Interpretation Act, 1908—viz., is a slight deviation, but to the same effect, and not calculated to mislead. In my opinion, the deviation from the prescribed form cannot be described as slight, nor can the form used be said to be to the same effect as that prescribed. There has been a deliberate departure from the prescribed form ; and for the title of the Justices of the Peace Act, 1908, there has been suostituted a statement of the supposed effect of the Act with regard to the punishment of persons making false declarations. The provision of the Interpretation Act was intended, I think, to cover cases where an attempt had been made to follow the prescribed form, and not to meet cases where that form had been deliberately ignored and something different had been substituted. I think, therefore, that the case is not covered by the Interpretation Act, and that the declaration cannot be treated as having been made under the Justices of the Peace Act. Nor can it be treated as a declaration under the Statutory Declarations Act, 1835, for the form prescribed by that statute has not been followed, and the provision already referred to in the Interpretation Act does not apply to the use of the form prescribed by the Imperial statute. The result is that the convictions, in my opinion, ought to be quashed. Hosking, J. : In my opinion the document adduced in evidence in support of the indictment was not such a statement or declaration as fulfils the requirements of s. 133 of the Crimes Act. That section requires the statement or declaration to be such as would amount to perjury if made on oath or affirmation in a judicial proceeding, and it must be made upon an occasion on which the declarant is permitted by law to make a statement or declaration before any officer or person authorized by law to take or receive the same. The section is obviously directed to extrajudicial declarations. The document put forward in this case as a declaration is in regard to a matter not provided for by any statute, but relates to a private piece of business between the declarant and an insurance company The authority on the part of a Justice or other officer to take, and the justification on the part of an individual to make, such a declaration was established by the Imperial Act (5 & 6 Will. TV, c. 62), now known as the Statutory Declarations Act, 1835. Section 18 of that Act permits such a declaration to be made in the form in the schedule Section 20 says the declaration shall be in that form, and the schedule in so many words directs that the title of the Act shall be inserted in the declaration. The document in question here plainly does not comply with this direction. Moreover, the declarant states that she makes the declaration “by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.” But the Act of William IV did not render the offender guilty of perjury, and therefore liable to the penalties for perjury, but merely of a misdemeanour. The only other Act to which it can be suggested the document refers is the Justices of the Peace Act, 1908. Section 288 of that Act provides that any Justice or other person therein mentioned “may take and receive the declaration of any person voluntarily making the same before him in the form (No. 50) ” given in the schedule. That form runs, “And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Justices of the Peace Act, 1908.” By s. 289 it is provided that if any declaration made under this Act is false or untrue in any material particular the person wilfully making such false declaration is guilty of perjury. It is argued that the document in question may be held to be in this form because the Acts Interpretation Act. s. 6 (h) provides that “except in cases where it is otherwise specially provided . . . wherever forms are prescribed, slight deviations therefrom, but to the same effect and not calculated to mislead, shall not vitiate them.” I am unable to accept the suggestion that there is nothing more than a slight deviation in this case.

This Court in Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R. 246), where what purported to be a declaration for the purposes of the Pawnbrokers Act omited the words

“ And by virtue of the Justices of the Peace Act, 1908,” held that the omission was more than a slight deviation. It treated the omitted words as essential. In my opinion, they help not merely to warn the declarant of the consequences to which he may expose himself, but also to point out to the person asked to take the declaration the authority which justifies him in doing so. The concluding portion of the prescribed form is not of such a character as to call for any deviation; it is a fixed and stereotyped formula. The Promissory Oaths Act, 1908, furnishes examples of this kind. This characteristic in a form should, I think, be taken into consideration in determining whether a deviation which occurs in it is slight. Trifling clerical errors which might be considered as not being intentional deviations may be forgiven, on the principle of Lex de, minimis non curat. Here we have a wholesale and intentional departure, resulting in the total omission to mention the name of the Act which is the justification for both making and taking the declaration. Moreover, having regard to Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470), the words that purport to describe the Act by virtue of which the declarant states that she makes the declaration do not fit the Justices of the Peace Act. In Rex v. Wilson (31 N.Z. L.R. 850; 14 G.L.R. 470) it was held that the offender could not oe indicted for perjury under that Act, notwithstanding the terms of s. 289. He is therefore not punishable under that Act, and is not in terms rendered punishable thereunder. I agree with the observations of the other members of the Court upon the dicta in Rex v. Smith (29 N.Z. L.R. 244; 12 G.L.R, 246).

In my opinion, thei'efore, the convictions against both prisoners must be quashed.

Convictions quashed. Solicitors for the Crown : Crown Law Office (Wellington). Solicitors for the respondents : B. J. Dolan & Co. (Napier).

(“New Zealand Law Reports,” 1916, page 460.)

[Supreme Court, In Banco, Auckland—(Chapman. J.) — 13th and 19th April, 1916.]

Weston v. Cummings

Gaming—Betting as Bookmaker on Licensed Premises — Two with one Person — Conviction—Sufficiency of Evidence—Gaming Amendment Act, 1910, s. 2 (2). The appellant was charged that, being a bookmaker, he did bet on licensed premises. The evidence showed that a constable in plain clothes entered a hotel, and there meeting the appellant, who was a sti’anger to him, effected two bets with him on two horses, which ran at a race meeting held on that day. The appellant received 421 from the constable, and then made an entry in a book. On the day following the constable met the appellant and said, “My horse won.” The appellant replied that he was not paying out that day. The appellant elected not to give evidence on his own'behalf. Held, That there was substantial evidence to support the decision of the Magistrate that the appellant was a bookmaker. The failure of an accused person to give evidence at the hearing is properly allowed some weight in considering an appeal from his conviction. Appeal from a decision of E. C. Cutten. Esq., S.M., Auckland, convicting the appellant. The appellant was charged under s. 2 (2) of the Gaming Amendment Act, 1910, that, being a bookmaker, he did bet on licensed premises—namely, the British Hotel, Auckland. The Magistrate convicted the appellant and inflicted a fine of TIOO.

The following statement of the facts is taken from the judgment : On the 6,n April, 1915, a constable in plain clothes nameu Doull entered the hotel and there met the appellant, who was a stranger to him. He -was introduced to the appellant, and thereupon asked him for “ 10s. on Square Deal and 10s. on Retana.” This had reference to two horses which were to run and did in fact run for events at a race meeting that day. The appellant received from Doull the sum of 4?1, and thereupon made an entry in a book. On the following day Doull saw the appellant and said, “My horse won,” and appellant replied that he was not paying out that day. Both wagers were asked for and were made at the same time. The appellant did not give evidence on his own behalf.

W. E. Hackett, for the appellant : There was not sufficient evidence before the Magistrate to justify his finding that the appellant had the status of a bookmaker and was acting as a bookmaker. Tn the case

of Duddy v. Connolley (31 N.Z. L.R. 1003; 14 G.L.R. 715), which will no doubt be cited on the other side, a long series of acts was proved. In the present case there was only one bet on each of two horses on one occasion only, and these circumstances distinguish it from the former case. It should have been proved that the appellant was exercising the calling of a bookmaker in a manner analogous to a person carrying on business. The case of Sewell y. Wright (50 Solr’s Jour. 223) is not exactly in point, but it is useful as illustrating what is meant by “carrying on business.” See also “Business” and “ Carrying on business ” in Webster’s Dictionary anr Stroud’s Dictionary (Vol. i, 235, 263). “Carrying on’ implies a repetition or series of acts, and, apart from the two acts proved against the appellant, there is nothing in the present case to suggest that he was a bookmaker. That is not sufficient : Rex v. Little (1 Bur. 610) ; Rex v. Buckle (4 East 346) ; Powell v. Kempton Park Racecourse Co. ([1897] 2 Q.B. 242). If the facts alleged in the pre sent case be found, the appellant may have committed an offence under s. 52 of the Act of 1908, but he has been wrongly convicted under the amending statute.

Tole, K.C., for the respondent : The case of Duddy v. Connolley (31 N.Z. L.R. 1003; 14 G.L.R. 715) is conclusive. There is no question oi “carrying on business” here. The Magistrate has found the appellant to be a bookmaker. He was acting as a bookmaker, and the Magistrate’s finding should not be disturbed by the Court : MacDonald v. Shirreffs (14 G.L.R. 736); White v. Davis (5 N.S.W. L.R. 96). The facts here are stronger than in Duddy v. Connoiley (31 N.Z. L.R. 1003; 14 G.L.R. 715), for here two bets were actually made, and that is more than sufficient : McConnell v. Brennan ([l9oß] 2 K.B. Ir. 411); Rex v. Turner (4 B. & Aid. 510).

Cur. adv. vult

19th April.—Chapman, J. : [His Honour stated the facts and proceeded :] Appellant’s counsel argued before the Magistrate, as here, that the making of the two wagers at the same time did not constitute the appellant a bookmaker. That, however, is hardly the question I have to decide. The Magistrate on these facts found that the appellant was a bookmaker, and I have to decide whether there is substantial evidence to support this decision. Both counsel referred to Duddy v. Connolley (31 N.Z. L.R. 1003; 14 G.L.R. 715), in which 1 had occasion to consider what evidence was requisite to prove that a man was a bookmaker. 1 think that the evidence here was quite sufficient. The acts constituting the offence are admitted, but they only constitute an offence when done by a bookmaker. By s. 2 of the Gaming Act. 1908, a person who acts as a book maker is within the definition. Here the appellant, whei he made the bets, made an entry in a book. That is oi itself a significant circumstance, but it is not the only circumstance. The Magistrate was entitled to group together all the facts in order to determine whether whaf may be called the status of bookmaker was made out. The fact of a stranger asking the appellant for so much on eaci of the named horses, just as he might ask a trader foi some known commodity, shows that he assumed that he was dealing with a person who treated betting as a matter of business, and the fact that this was at once agreed to at least tended to confirm this assumption or belief. To ask for “ 10s. on Square Deal and 10s. on Retana ” is not the form in which friends make proposals for casual bets, or in which a stranger usually approaches another man even if he wants to bet with him.

Then the appellant took the £\, and Doull paid it to him as a matter of course. That is usual in such cases, but by no means usual where private bets are made, in which case, if one shows less trust than the other, the stake is deposited with a third party. The mere fact that Doull was able to conclude two distinct bets in one transaction gives that transaction an air of business. Further, there is the significant conversation in which appellant said that “he was not paying out that day.” “Paying out ” means something slightly different from paying in the simple sense, and is a term appropriate to such a business as this. These facts, m my opinion, amply justify the decision.

There is, however, something more. The appellant was not bound to go into the witness-box, and if there was not sufficient evidence he could not be allowed to suffer for not doing so; but even in criminal cases, where a Judge is not allowed to comment on the failure of an accused person to give evidence, his failure is properly allowed some weight if afterwards a motion is made for a new trial on the ground that the verdict is against the weight of evidence. 2—P.G.

I hold that there was ample evidence to support the Magistrate’s decision.

Appeal dismissed, with costs .4:5 ss. Solicitors for the appellant : Moodv & Hackett (Auckland). Solicitor for the respondent : Hon. J. A. Tole (Auckland).