LAW REPORTS.

Dominion, Volume 3, Issue 681, 4 December 1909, Page 14

LAW REPORTS.

I , COURTOF APPEAL. , i* ' ' A POINT BURIED FOfi MANY YEARS, * ; "SILENT PRISONERS. " An important point relating to criminal t • procedure in' tho Supreme Court was decided 11 yesterday by 1 the Court of Appeal. Tho presiding judges woro Mr. Justice Edwards and Mr. Justico Chapman. Tho decisions of the three absent members of tho court woro also read, r The case was/one which had come before" Mr. [Justico Qhapintfn at tho August criminal sos- / eions. In that caso William Brown and Richi ' ard M'Cann'wero charged with robbing Thomas I Joseph Mahon in Taranaki Street. They woro L defended at the trial by Mr. Webb, who did- ■* not call them .as witnesses, but addressed tho r ' jury on tho facts, characterising tho ovidonco against them as slender and unsatisfactory. ; 'He told tho jury that the caso for the prosecu- ■ , , bon depended upon the evidence of a man who ' was under tho influenco of liquor, and who had been described by a constable as "half drunk." In summing up, the judge remarked 'f •, on tho fact that the accused mon had not given evidence. They were found guilty and sentenced, 'Brown «to fifteon months' imprison- ' ment with, hard labour, and M'Cann to nmo months' hard labour. In. stating a case for f tho Court of Appeal, Mr. Justico Chapman 'Midwinter alia"ln Charging the jury I said- 'It was open to either, or'both, of .these moh, if .* ~ they had an honest answor to this man's '' evidence, to go into tho witness-hot and 'contradict lis story You ?iroiZu>t bound,, ; to-attach any importance to thoir not having given evidence, but you are at liberty to attach such importance to it as you ' think it deserves.' Tho prisoners weie •' convicted and sentenced. It Section 423 of "■ tho Crimes' Act, 1908, is to bo read as binding tho judge, as well as the parties, tho abovo is a misdirection. Tho question re- ' served for the opinion of the Court of' Appeal is whether my direction is right or wrong. If if is wrong, tho conviction ought ' to bo quashed/' ' Both in the Supreme Court and in the Court of Appeal, Mr. Myers appeared for the Crown, and Mr. Webb for the two accused The Acting-Chief Justice, Mr. Justice Wil--1 Jurois, m the course of his judgment, remarked that comment by4he judgo would be"the most likely thing to, prejudice, the prisoner, and his , Honour considered that the words "no comment ' shall be allowed to'be made" was "a prohibi-i tion of all comment'by the Legislature If a Judge Was to have the right to comment, Scc- ; ' ifaon 423 of tho Crimes Act should have been ,in 'such xl form as would make it clear that pom© comment was possible. His Honour jtold tho intention of the Act; to bo that, if a '" refused to accept the opportunity of 1 living ovidenco in his own behalf, he should ,be, as far as possible, in no better and no iworse position than he had occupied before the '" , Tight to give,evidenco was allowed. His Honour was of opinion that the conviction should* ' bo quashed. ■■ ~"' ,„, ' ,\ . Mr. Justice Denniston agreed that the con- , Victim should bo set asido. The point, said jhia Hoioui, had escaped detection lor twenty Spears. , » , ," i Mr. Justice Edwards said that he had read , *ho judgment of Mr. Justice Chapman, with •whose opinion he agreed. If a prisoner de- < >to grve' evidence on oath, but mado a "plausible statement tojtho jury, thereby avoid--1 Mg cross-czaminatmn, the judge might, in his -, summing up, point out to the jury that they *were to arrive at their finding on the evidence, and that, the prisoner's, statement was mot evidence,'but'that they might accept it '/ ias ( a theory. Tho conviction of the two ac- \ cosed should, in his Honour's opinion, "bo afhrmed, t > •* ~,,.. 1 Mr. Justico Cooper's judgment coincided with ?ihe finding of the Acting-Chief Justico and 1 3ir. Justice' Denniston. , : , ' Mr.'Jiistrce Chapman'said that tho question depended upon the construction of tho words, "No comment adverse to the person charged , - shall be allowed to be made." These words, In' Section &3 of tho Crimes Act, ,1908, 'were, _, of course, binding upon counsel for tho Crown, ajld upon counsel for fellow-prisoners. It was j: to be considered whether the words "allowed to'bo' were <a surplus. If the section had lead sirnply, "no comment adverse to tho person'charged, shall bo mado," no judge would i 1 have thought oK commenting or allowing 9 any comment. Jnriijs had sometimes asked his n Jionour if the accused could give evidence, and .' i? fI J? replied >ln. tho terms of the "Statute. ' Honour that' the judge had'a light to comment. Australian cases made mention of tho rnconvomenco to which judges were ', 'subject, who were unable to give.-, adequate s -direction to the-'jury. The right of comment ; > was a normal right,'.because the judge .had iimthonty pvor tho whole -trial. It was - his right - and , his • duty to notice ; S& ™ h ?J espeotlTO P Mties P ut the" oases LU*. Webbs argument hadjbeen that the inten■,r, tion of the Legislature was that all comment - - iflhonM be prohibited. The contention' was sun- , Spbrted bv the fact that undefended accused ' [were addressed as follow (Section 422) "If |you decide not to be examined, the .matter ,will r° he allowed to bo tho 'subject l of comfcrrtmt ' It had been affirmed that this might 1 Head an ignorant man to 6upposo'that no comtarait w.batever could be mado. should he abSstoin,from giving evidenco' Thi9 was an intoaiciusive argument" If there was 1 any fear of ten ignorant accused being misled, there should /Jo some further direction given, to the judgo K> isms l the prisoner. His Honour deemed , ,/iiat the conviction should be affirmed r ' - J # In accordance with the decision of tho mat gonty of the Court, an order was 'made that I *tbo conviction should be quashed. , P «_ j i Justice Edwards intimated that a rifle I ftma been made by tho judges'to preclude the L of an accused person l about his I <. Spronous connations, except with the prior I ; consent of the judge. '