SUPREME COURT. March 1st, 1845.

Auckland Times, Volume 3, Issue 113, 11 March 1845, Page 4

SUPREME COURT. March Ist, 1845.

The following is the address of the Chief Justice, which we were obliged to omit last week for want of room. Gentlemen oj the. Grard Jury. " I wish to detain you for a short time for the purpose of offering to you a few lemarks on the change which, es I am given to understand, is henceforth to take place in the practice of this Court in respect of the prosecution of criminal iflenders. The Office of Crown Prosecutor has ceased in every part of the C« Jony and private persons, who find themselves aggrieved by any Criminal sets, ate to be left to uke t'>e proper atepg for tbe protection of themselves and the public, and, for tbat end, to proceed as they would do in England. The person »gg i.ved will he bound over by the committing Magistrate to prosecute, and will then be Jres ,10 employ any Attorney whom he may think proper. „ ilie reasonable ecu of prosecution will be allowed and paid by the State. In England the piactine stands thu< the costs of the prosecution being certified by (he proper officer of the Conrt. are paid forthwith, upon sight of the order for payment, by the f reaattrer of the County, out of the County rate. Here tb>y will be of necessitv, nnd»-r the cucumMauces, borne by the general funds of the Colony. I am informed that reflations adapted to secare the »peedy payment of such c» sts will be abortiy put lorth by the proper authority. It may be well to remind you, G'entienien, and tbe public through yoti, that it is not i every case that the costs of prosecution are, by the Law of E' gland, to be paid by the public. Those costs ate so paid iu every C a«e of felony, bnt only in tbe more ageravsted and dangerous kind of misdemeanours. Those kinds are enumes rated in the English Statute (7 Geo. IV c. 64;, 1 presume the like rule .will be followed id this Colony. There are some considerations connected with tbe Comparative merits of the system which has just ceased, and of that which a now faking its place, to which it appeals to me proper to draw your attention. Amongst tne able men who have thought and written on tbe administration of criminal law, there has been great diversity of opinion on this question ; some recommend one system, some the oilier, aud some a combination ot the two.

A main reason, urged by the defender* of the system of official or government prosecution, is—that theie is, as they allege, a greater security in the appointment of one responsible man against the risk of corrupt compromise ol the prosecution being brought about in the interval between corns mittmeilt and trial by me»Ds of the wealth or influence of <h» accused, or the tijends of the accused. That, moreover, a privaie person will Dot be moved to entangle himself in the trouble end care of a prosecution, unless in an aggravated case j so that many offences will pass unpunished, iu the injury ot "he public. On the other hand it is urged that moral benefits of the highest kind accrue to society from the system ot private prosecution— that, the people being left to protect themselves, the most valuable of all habits, tt>at of se f-belp, i» tunned aud ►trenthened—and tht it some offences fail of feeing puiiisi ed, such failtue has bapptiud.-lor *he Wiost parf, in those cases only wileie the law itself ha* beeu so cruel that piosecuto's shrank from putting it into opeiatio-i, as iu tne case of lire Jaws, now b&ppilv repealed, vvlnoli it.dieted toe punishment ol deaih lor biieep-stealing, stewing m bhs-icb-fieldß, &o. I shall make no apology for occupying a few minutes of jonr time by reading a passage winch A Jiave lately met with, containing remark* on ibis point, by a writer who has earned tor himself tue icputatioa of one of tue most of living

ohververs of European society. Mr, Samuel Lain*;, in bis late volume of "Observations iu Sweden," sav s

[Here the Chief Justice read the following passage from Mr Laing's Rook on Sweden.] ' Much must depend upon the manner or princi--ole of administering the crtaLinal law. in .Scots land, for instance, the administration of the law—the detecting, committing, and prosecuting, criminal ffTenders.iare duties performed bv paid functionaries, the g»iocur»tor fi-cal, sheriff depti'e, and their officers in each county. The consequence is thai the public at latge, as there are official people paid to do these duties, aie not ai all embued with tbat sense of doty to others so lively in England, which lead* men to seek nut, arrest, and brin« to justice, < ffeti'ters, eoeo when not directly sufferers by the rffriiee. Tbe sufferer himself, unless be see a chance « f compensation or recovery of bis loss will »catceh be at the trouble of travelling to the country town or place n| business of the paid functionaries wi o cannot be so numerous as to be fo'ind in every neighbourhood, to lodge informations which mac produce to bin considerable trouble and 'oss of time ; and ttiat mrreh to discharge a public duty, which there are functionaries paid fo do. fin re is among the Scottish people, accord'nglv, an apathy about the duty of apprehending oidinnry delinquents, *nd even a kind of feeling in favour if the offender and of his escape from jjstice. I h'»»- tendency of the mol'itude, and even ol those above the vulgar, is complained of by all the fnnctintiHrie* who have to administer criminal la* in Scotland. The small amount, therefore, of criminal committals among the Scotch population may prove, not so much the absence of crime, as the absence of that sense ,of duty to society wnich tndssces men to denounce detect, and arrest, crime. >ln Sweden, Norway, and Denmark, the same principle of adnin'steiing the law prevails as in Scotland, and with the same effect on the spirit of the people. In England it is left very much to the punl'c themselves to detect and bring to justice, offenders It is a dntt forced upon everj nr->n, ns, from the dense population and great diffusion and exposure of personal pioperty, sooie'v could ml txistii stipendiary functionaries, however rmmeious weie alone charged with it, and the public I • ked on with apatbv, as in Scotland. It is exactly the want of paid functionaries, to do the duty, which keeps alive in England thai strong sense of dutv to society in bringing l« justice, < flendeis, winch is far tt'ore effective, both in detuning and detecting, than any body of p*id functionaries, however nnu etotis and watchful.'

It » II be undetstood that | cite this passage, not a» in Itself decisive of the question, -j tor, with the very imperfect data at present nisting, a satisfactory decision is scarcely possible,:—but as bringing forwa'd, in a very clear and forcible man ner, one consideration which ought to be o'; great weight and moment in tlie determination thereof. Amoiip*' ourselves, wbil-t arrangements are, and onforfunatelj must he, formed aud resolved with reference to c n nsii'erationß of a d.rferent kind, it is a wholesome <bing for all of us to be reminded of the moral reasons which may be urged for or agrainst them, and especially of the manner and degree iu which circumstances, of no great apparent moment al the present time, may p.,ssis bly affect the spirit and character of the nation wbic!< shall hereafter fill this land

The view which Vi. Laing takes, being; unfavoiable to the system pursued in Sc tland, is the more worthy of cousidetation /torn the proofs whioh appear in bis writings ot an affectionate and kindly partiality towards that, his native, oountry

Now if, for these or any ot:er reasoms, the ays* tem of privaie pr<»eoutiou b* ihe preferable one in an old country, it canoot be less so here. For in old and populous cou'itries the Executive G >vern ment is in general far leraoved from the ordinary business of men ; its aotion is. except in rare cases, distant, hidden, and indistinct. Whilst in young and small communities, like this in which we live, ciicumslances are altogether different. The Executive Government Stands near and ft.ee to face, to those who are subject to its corn re I, its action is di-tiootly seen and felt; and so it comes lo have more of a peisoual character than in larger communities. Fur this reason alone, 1 think the intervention of the Government, in tbe conduct of prosecutions, even less fit here than it may he elsewhere. 1 would be very fir from saying that, in ordinary oases, any evil uonld arise (auy bias or tendency towards unfairness, 1 mean) from this ciicorostance. Ido not attempt to calculate the amount of what a mathematician would call the "disturbing foroe" Irom this cause ; but I am con lent to say tbat the existence of such a force, in some cases, is quite conceivable. For tbe inteiest, tben, of the administration of justice, it appears best that the party accusing and the pa>ty dt tending should not only be, but be cleaily seen and certainly known to be, uu exactly terms—that there should not be even the appearance of the intervention of any other agt-nc-.

The proposed change therefore appears to be one of a good and salutary tendency. Gentlemen.— Ido not find >n the calendar any case of such aort as to cull for any special remark from me. There remains one poiot to mention—the prao> tice when default is made by a Grand Juryman. Tbe ancient hue of £!>, will henceforth be enforced. A fine is in such ca.-es, inposed in ignorance of the personal circumstances or special grounds of excuse, whioh may eaisi. The Court, however, in tlie case of the Grand, as well as the Petty, Juiy. tetaitis the power of tiiiuuatiug tile line up<>n such rircutuslances.or grounds ot excuse, oeing made to eppear- And there is a piocess tor oausiug tbem ao appear, if iL-y exist, before the fine is actually levied. I soaioeiy need to aod that this power or Imitigiitioo will be m»ie readily tXeioi»ed iu the laitet case than iu the former."