LAW REPORTS.

Dominion, Volume 1, Issue 251, 16 July 1908, Page 4

LAW REPORTS.

COURT OF APPEAL. A CHRISTCHURCH CASE. "GROSS MISCAERLVGE OF JUSTICE." NEW TRIAL ORDERED. At tho sitting of tho Court of Appeal yesterday, when His Honour the Chief justice* (Sir Robert Stout) and their Honours Justices Williams; Dcmiistonj Edwards, Cooper, and < Chapman wore present, corisidoration was given to a motion for "a new trial in .tho- caso of John. M'Cluskey, who was on May 19 found guilty of a serious criminal . . offence against a young woman at Christ-.; ' church oh April',2o. Mr. Justico Donniston," before . whom -,- tho prisoner was tried, stated that on.sum-. ,ming up. to the jury in tho Supremo Court .: -he had, spoken strongly, of. tho prisoner's con- , duct throughout, but said that he had dono so only for tho purpose of warning tho. jury against allowing tneir natural indignation and disgust such,; conduct to. load ■ thorn into dotornnning to./pu'nish, tho prisorior indirectly by convicting 'hirn of a crime which he had not in law committed," and advised them,to consider TCiy.' seripusly_whethei; thoy,; . coulU 1 . be ,justiiie3 ~in findinsTthat_ been/ proved beyond reasonable' j' doubt .that; "/the .'girl-vhad • not consented-to the'-acts., of' /the prisoner. Tho jury; convicted tho prisoner, but being dissatisfied- with the ver--diet ho had postponed sentence on' the, prisoner, and gavo liim leave.:to"apply ..to-"tho Court of Appeal for a new trial on the ground "... that .>t_hevverdict, was against .'"tho .weight ot' evidenco. Mr. Myers, who appeared on behalf of the Crown, mentioned that';prisoner was not in ' attendance. .:.'•.. r'-liy'Jir'? Mr. justice'Denniston said. he. understood ; '; that prisoner did not'.wish to be present'., • Mr. Myers: It is necessary for'prisoner to move -for- the now trial. - ■ .■ i* r .The Chief .Justice: -Have you; riny, objection : ' to the Court taking -tho motion as ■if it had been moved by the prisoner? Such a course, , if adopted, was not intended to establish a. precedent. ..-i'..:' .■ -•■''Mr.' Myers, who consented to.tho adbp'tibri'. 1 of . the course, suggested,:-said that tho case was 0110. m .which! complainant had given," that;"she did not. consent 1 to the , act which prisoner was said to havo com-" . mitted.vujon'her. The question'. was, he .submitted, entirely:one for the -jury; Mr.-Justice .'Donniston.:' I; npvor dreamt - i. - that the : jury''Wouid:.cbnvict*. ',; Their, verdict'' : was' so, inconsistent with, the evidence". Had ' I imagined that .they' would, have convicted I -should' havo -withdrawn,.'lthe-;-case -fromthem.- ■ —Mr. Myers quoted from-the ease-in support of. his contention . that cpmplafnajit's. ; Btory was. eorrohgrated.\ a.... . The , Chief Justice: Do- you suggest' that" ■ the conviction , should bo quashed, or that now trial should bo ordered ? ' . Mr. Myers: Tho Court can only order a new..-trial;, : - . • Continuing, ; Mr;- Myers"-said 'that: where a case was-allowed-to go to the jury, and the. caso depended on a matter which was - . essentially 'matter for. ,thb. jury;- it- .was ,an'instance where tho Court-should hesitate before ordering a .now trial... It would; be- : come a Judge's verdict if . v . Mr. Justice DennistonV That i§ an unfortunate .-phrase: • If the verdict: W- .allowed ; to stand it 1 v.'ill be a gross vmiscamage of • justice. p • '' ' ~ , Justico William^: ; It must' .be borne. ! in mind|.'thaf. in-.Vcririiinal'./.rasesytlib. , "bu'rfen;' ' ,of prooEiisigrefiter,thanTin civil .cases. '".. " Mr,.Myers:' I submit..that .this..is..,a,.case';, j whero-the wholo matter,.depends;.principally ;; ; on- the credibility of tho complainant. -. , , 'Mr.v Justice Edwards: It depends; on the. . . possibility of-'hor story being true.''" ': 1 Mr.'-Justice ;Denniston: Possibility is not" 1 ; . sufficient; tho jury must believo' that lt-'waV;; ■ probably true - .. . .. . . ■ Mr. Myers: .No .your. Honour fully, directed tho jury on" that point. Mr. jTistice:'."Deniiiston f""ily" direction" was- • a 'direction in the: most emphatic terms .to . acquit; ' Mr. Myers Althonghi , iho i :learned:.fJudge warned and cautioned tlie jury, which had hoard the ovidonco of arid r " ' ' . it believed her ■■story.-.; ■■'I-,.:. , __' Mr. Justico Donniston: The jury must have been influenced by events which happened • . prior to the alleged commission of tho. offepce. ■ ' . Mr. Myers; You beli'eve Hhat : the^" ; "dis- : regarded the express cautiori'.'wlii'ch you gave them ? ' ''" ' - .... Mr. Justice Donniston: Yes, and tlio evi- ; dcnco! ' After the, Court had briefly corisidercd tho , . .matter; ' the' Chief; Justice -intimated that "*s. ■ ' majority ,of the Court were- of -'ppinibii;. that' a a new trial-should be granted under Section " -416 of-the Criminal Codo Aetj-ISOS,-on the- . - ground that the verdict/.was. against the eight" of evidence;. ,:,. ,Unde^/ v the circumstances 110 comment ort':th<J-.:caso would bo mado. :v :'.. ; 'r'V;