LAW REPORTS.

Dominion, Volume 4, Issue 1202, 10 August 1911, Page 3

LAW REPORTS.

— 1 IN THE COURT OF APPEAL. NEW TRIALS GRANTED. REYNOLDS-PETERSEN CASES. JURY MISDIRECTED. Yi'-::-n|_ay the Court of Appeal delivered <leii.-:jn in Hie special stated in connection with tho ease of Rex v. Edward Reynolds and Annio Petersen. At the hearing tho Bencli ivas occupied by the Chief Justice (Hir Robert Stout), Sir Joshing Williams, nnd Justices Denniston, Ed wards, Chapman, and Sim. Mr. T. \cave appeared for the Crown, .Mr. A. Gray for Reynolds, and Mr. A. L. llerdnian tor Petersen. At the criminal session of tho Supremo Court in May last, before tho ■ Chief Justice, Annio Peterson and Edward Reynolds were charged with unlawfully using an instrument with intent to procure a miscarriage. Reynolds was further charged with supplying a thing knowing it-to be intended to procure a miscarraige.

Mr. A. L. Herdman (for Petersen) and Mr. T. il. Wilford u'or Reynolds) asked to have the care against each defendant heard separately. Mr. Keavo (for the Crown) opposed this course. His Honour after retiring to consult with Justice ' Chapman declined the request, but said that he would reserve the question for the Court of Appeal. When -the case for the Crown had closed Mr. Herdman pointed out that there was not any evidence to corroborate that of the principal witness, who was nn accomplice, and that therefore the jury could not convict. Mr. Wilford argued to the same effect, said the case was one for acquittal, and asked his Honour to direct the jury accordingly. His Honour directed tho jury that tho evidence of the girl was that of an accomplice, and went on to say: "An ancient law laid.down in England is that in such a case as this the Courts insist upon some corroboration of the testimony of the person, who was a participant in the crime. In mv opinion, the corroboration in this case is too slight. It is so slight that I could not say to you that it would be safe enough for' vou to convict." The jury, returned the verdict: "Not guilty by direction of the Judge." At the request of the Crown Prosecutor, the Chief Justice stated a case for tho Court of Appeal, and the questions to bo determined were:— > Was I right in refusing the application for severance ? Was I right in holding that there was not , sufficient corroboration of tho girl's story disclosed by the evidence given for tho.Crown to go to the jury? Was I right in directing the jury as set out herein? The decision of the Court was that tho verdict of the jury should be set aside, nnd that there should bo a new trial, tho prisoners to .be tried separately. The Chief Justice dissented from this judgment, and considered that tho order should bo for a new trial only. The judgment of tho other five Judges was:— . "It has long been recognised as a universal practice in English criminal Courts that, where the prosecution depends/ (wholly or in part) on the testimony of an accomplice, it is the duty of the'presiding Judge to warn the jury that it is unsafe to convict on tho uncorroborated testimony of an accomplice, but, at the same time, to tell them that it is competent for them i (notwithstanding such warning) to convict on tho uncorroboratedtestimony of the accomplice. This is not a'rule of law—either at common law or by statute—but a rule of practice only founded on the experience of tho Courts that it is dangerous to rely on such testimony unless corroborated. It is, in fact, not a rule of law, but a rule of common sense. The Courts in this Dominion have, from the first, followed-this rule. >No doubt here, as in England, thero where there is a statutory provision that tho corroboration of a witness is required. The fact, however, that there is such a statutory requirement in -certain • cases cannot, iu any way, interfere with the rule which, is not a rulo of law, but of practice only. In the present case, the learned Judge who presided at the trial did not warn the juryas to the danger of convicting on tho uncorroborated testimony of an accomplice, but, in effect, directed them to acquit the accused, and did not inform them that (notwithstanding his direction) it would have been competent for them to convict on the uucorroboratea evidence of the accomplice. Tho verdict of the' jury, .'not guilty by direction ol the Judge,' shows that the jury treated the direction of tho Judge, not merely as a warning, but as a command. We are of opinion, therefore, that there was a miscarriage, and a substantial miscarriage, m the present case. The Crown has the right to have the opinion of the jury taken after : they had been duly warned that it was unsafe to act on the uncorroborated evidence of the accomplice. If the jury had f,ound the prisoners guilty on. such uncorroborated evidence the verdict could not have been sel aside. We think, therefore, that the verdict of the jury should be set aside, and that there should be a new trial, of tho prisoners. '

"A further question arises in the case as to whether the prisoners should bfl tried separately. There is no doubt that, where the ends of justice require it, the Court before -whom the prisoners have been tried has a discretion to order that, although prisoners are indicted together, they should-be tried separately." After reviewing somo phases of the ens?, their Honours' expressed the opinion thai whether there should be a separate triai' in any, case must depend upon tho special circumstances of the case. In tho present case they were of opinion that such special circumstances existed, and tha' there was a reasonable apprehension that thero would be a miscarriage of justice unless tho prisoners were tried separately.

INFANTS AT THE HIGH SCHOOLS. MAY BE SHUT OUT. The question of whether an Education Board has the power to exclude from instruction in a District High School children below Standard II Was decided by the Court- of Appeal yesterday, w'hen a decision of Mr. Jus-tice Chapman was upheld, stating that an Education Board had such power. The Bench comprised Sir Robert Stout (Chief Justice), Sir Joshua Williams, and Justices. Denniston, Edwards, and Sim. It appeared that the Wanganui Education Board had passed a resolution that children' who had not parsed Standard 1 should not bo allowed 'to attend tho Wanganui District High School, the board having long before this established an infant school in the district to provide for these children. A fire then occurred which reduced the accommodation in the school, but a reinstatement of the buildings had again given the necessary accommodation. Children ,of school age had been excluded from th'e High School, and tho headmaster had been prevented from allowing them to attend, and both teachers and parents had protested. The headmaster of tho High School desired to have the infants admitted, as such would-increase his roll number, and so tend to increase his staff and the salaries all round. In order to test the matter a case was stated under the ; Declaratory Judgments Act and tho decision of the Court, was against the master of the school. Hence tho present appeal by the Teachers' Institute.

The appeal was against n decision of Mr. Justice Chauman, delivered on September! 15, 1910 (the appellants being the New Zealand Educational Institute) on the ground that the judgment and declaratory order were erroneous in point of law. Tho questions submitted we.ro: Has an Education Board power to exclude children (provided they are of

-;chool ago) from attending "and ro'coiving instruction at a district high school or a mixed school under its control? Has an Education Board power (by resolution, or general instruction, nr otlierwf*'*) to prevent the headmaster of a District Iligli School, or of a mixed school iin4or its control, from receiving for instruction nt such school any. children of school age? Has an' Education Beard power (by resolution, or general instruction,'' or otherwise) to require or insist that no children below Stnnrlnrd II shall attend, or be received as punils at n District High School or a" mixed school under the control of such board?

The answer given by Mr. Justice Chapman was (hat (lie Education Beard had power (by resolution or general instruction or other proper measure) to require that no children below Standard II should bo allowed to attend, or be received at a District High ■ School within its district. AI tho hearing of the appeal Mr. 11. 1). Bell, K.C., with him Mr. (1. 11. Fell, appeared for the Education Institute, Mr. C. C. Hutton for the Wnnganui Education Board, and Mr. J. AY. Salmond, Soli-citor-General, iu the interests of the Education Department, and to support (he appeal. In delivering judgment on the appeal, the Chief Justice said:—"ll is necessary, first, to see what the powers of an education board are. Thev are described in Section II of Ihe Education Act, 1008. which section has not been directly amended by any subsequent statute. They are, inter'alia: To establish and maintain 'public schools' within their district and, generally, to have and exercise all the duties and functions conferred by Shis Act. What then is a public school? 1 It. is said to mean "any school established or constructed under Part 2 .of the Act subject to the control and management of the board, and includes a. district high school. There is nolhing in the Education Act. declaring that a child (or the. parent of a child) has a statutory right to be admitted or demand admittance of the cliild to a school. . . . There is nothing express in tho statute (or in any amendment) stating or implying that infants can demand admission to a district high school. How then does the right to demand admission arise? The schools arc under the management of the board, and who is to interfere witli that management? It is a district high school and in the schedule that deals with district high schools, there is nothing from which even an inference can be drawn that infants must be admitted. All that can be relied on appears in Part 5 of .the second schedule, for that is the only reference to district high schools in the schedule. That there is to be a primary Department is clear." But his Honour (after quoting part of tho schedule referred t'o) remarked: — "Thero is nothing, in any of these paragraphs, about admitting infants, nor giving tho right to any parent, or child to compel admission of an infant. The fact that there must be a primary Department does not noce?;arily mean thaithere must bo infants. If that were a valid argument to prevent the erection of an infant school then, wherever there was a district high school for boys, th6rc could be no separate infant school in tho district. All male children must bo taught in the district high school." After a lengthy reference to tho Act (in so far as it ! applied to the character of schools and the powers of education boards) his Honour said that he was of opinion that the appeal should be dismissed (with costs on the lowest scale payable by the New Zealand Teachers' Institute).

Sir Joshua Williams and Justices Donniston and Sim concurred in the judgment, but Mr. Justice Edwards .dissented. , • ' THE LADY ON THE BICYCLE.

AND THE, "AUTO." CAR. Decision was delivered in the appeal of John Martin Samson, auctioneer, . Duuedinj against a Supreme Court decision ordering him to pay .£750 damages to Louisa May xUtchison, school teacher, in respect of a collision between appellant's motorcar and a bicycle ridden by the latter who was the respondent. On- the' Bench at the learing of the appeal were the Chief Justice (Sir Robert Stout), .Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. Counsel were, Mr. A. S. Adams, witn him Mr. W. G. Hay, for the appellant; Mr. M. Chapman, K.C., with iiim Mr. A. C. Hanlon, for the respondent. Tho majority of the Judges were of opinion that the appeal should be dismissed. '

Mr. Justice Denniston, in the course of his judgment, said: "I do not think that this is a case which requires for its decision any elaborate analysis. It depends upon the answer to the question: "Who was, at the time of the collision, in control of the car?' .Tlie appellant Samson was the owner of'the car,'and was one of its occupants. ' The onus, therefore, was on him to disprove, as against the respondent, Louise Aitchispn, the presumption created by these facts. This, 1 think, he has failed to do. . . . His object throughout is evidently to make out a". Mrs. Collins (or. her son) as having been in ohafge,.'■ Thcjy'on.the other-hand, are .equally' anxious to make out that the appellant Samson was in charge. - It is impossible to come to any clear conclusion on this evidence as to the real understanding of the parties. It is clear that Collins, acting for Mrs. Collins, wanted to see how the car would behave going up hill, but thcro-seems to me to be nothing to show that ho wanted anything else, or that he, at any time, asked to have, or claimed to have (he right, as against the appellant, to take charge of it. At the time of the accident the experiment of trying the car on tho hill had been, for some lime, at an end. That being so, I think that there is no evidence to displace, as against the respond-: cnt, tho natural inference to bo drawn from the fact that, at the lime of the accident, the appellant Samson was in tho car, and that Collins was then driving with Samson's consent."

The appeal was dismissed, with costs on the highest .scale -as from a distance. , Justices Edwards and- Chapman concurred in this judgment, but the Chief Justice dissented, and considered that the appeal should be upheld.

PRESS CASE-HOBEN AND SMITH. /PALMEKSTOX PAPER. Reserved decision was delivered in tho case of W. H. Smith v. E. D. Hoben. The case was heard last month before Justices Sir Joshua Williams, Edwards, Chapman, and Sim. The appellant Smith is proprietor of the newspaper tho "Manawatu Daily Times," and the respondent Hoben is lessee and editor of the paper. The appeal was against a judgment of the Chief Justice regarding a question of interpretation of a leaso. Smith had disputed Hoben's . action in drawing ,£lO weekly from the' business in anticipation of profits, and respondent had claimed that the agreement gave him the right so to do. Mr. C. B. Collins appeared for the appellant, Smith, and Sir.- C. A. Loughnan for the respondent, Hoben. The questions which the Court was asked to consider at the original hearing were:— • (1) Whether, upon the true construction of the deed of bailment, Smith is (as he claims to be) entitled to ono moiety, of the net realised profits irrespective of the drawings of defendant as against anticipated profits, such drawings not being chargeable, to, nor dcductable from, such net realised profits,- or whether Hoben is entitled to claim (as he does claim): (a) That ho (Hoben) should bo allowed to draw .£lO per week in lieu of salary for editing and conducting the business', and that tho drawings are a first charge upon all profits when realised, and i'urJher that the division of profits is to be marie- equally between Ihe parties after tho drawings have been allowed for; (b) in tho alternative, that Hoben is entitled to anticipate throughout the period of the bailment at the rate of <£it) per Week, this sum being charged against his drawing account in tho books oiv account of profits; all profits, when realised, to bo payable to plaintiff .until ho has received in proiits a share equal to the total draws of defendant Hoben in anticipation. (2) Whether Smith is entitled (as . he claims) to receive, at the end of ' any half-year,' a moiety of the not realised profits earned during that halfyear; or whether (as Hoben claims) so long as there are any undischarged liabilities outstanding at the end of any half-year, there cannot be any . net realised profits available for division.

(!l) Whether I ho expression "net realised profits" moans the surplus of receipts over expenditure properly ohni'gcable to (lie business; or wliotlier tli« liabilities (if nny) properly chargeiil)le lo Hie InisinK* in account outstanding between plaintiff and defendant, at the end of Hie half-year, are to be provided for out of such surplus before division of the fame. (J) Whether llobeu is entitled, in his account with the plaintiff Smith, to charge to working expenses: (a) Interest on money borrowed bv defendant to assist hiw in cirrj-ini on the business; (b) de-

fondant's income tax; (e) subscriptions and doimtioiw paid in cash by defendant not being rebates or discount on advertising. It was .subsequently agreed that the items- "subscriptions"' anil "donations" and "income tax" be struck out. The Chief Justice answered the three questions in his judgment of April 13, and the Court of Appeal now decides that the following answers shall be substituted foi the answers embodied in the judgment, of April 111, 1911: (I) lloben is entitled (under Clause 12 of the deed) to draw, on account of his share of the anticipated profits, .£lO for each week of the term, but to draw so that at, no lime shall the total amount so drawn exceed the sum which, from time to time, shall appear to be his share of the net profits (realised or unrealised) of the business upon a fair estimation. In making such estimation all moneysadvanced by the hankers (upon overdraft or otherwise) and any capital advanced by the defendant for the purpose of the business, are to be treated as liabilities of the business. The half-yearly account to be taken under Clause 11 of the deed shall be conclusive as to the. estimation of IJobcn's share of the profits for the preceding half-year. If, on the taking of any. such half-yearly account, it shall be found that Jlobc-n lias drawn (during the preceding half-year) a larger sum on account: of his share in the anticipated profits than appears from such account he ought to liavo drawn, the excess of his drawings for that half-year shall bo treated as drawings made iu advance in respect of the sums -which he would otherwise have been entitled to draw in the next succeeding half-year. i (2) There is a difference of opinion on the question whether, if lloben had received more than his half share of the "net realised profits" during the half-year, he is under the obligation of paving (at, the end' of the half-year) one lialf of the sum received strictly answering that, description to the plaintiff and, consequently, the answer of the Supreme Court to this question stands. But, as in the view of this Court, there can be no "net realised profits" in any half-year until the debts of the business (including tho overdraft and Noben's capital) have been provided for, this question does not arise, and is not really likely to arise.

(3) The. _ Court being evenly divided on the question of interest, the answer embodied in the judgment of. the Court below will stand.

There will bo no order as to the costs of the appeal. GRADUATED LAND TAX. WAIMARAMA BLOCK. An important land tax cose connected wilh a. large Hawkc's Bay estate was decided by the Court of Appeal yesterday. Sir Robert Stout, Chief Justice, presided at the hearing, and with him on the the Bench were their Honours Sir Joshua Williams, Mr. Justice . Denniston, Mr. Justice Edwards, and Mr. Justice Sim. The plaintiff, George Prior Donnelly, was represented bv Mr. H. D. Bell, K.C., with him Mr T. W. Lewis, of Hastings. The Solicitor-General (Mr. J. W. Salmond) appeared for the Commissioner of Taxes, defendant. '■ The plaintiff's wife died on June 7, 1909, leaving property consisting, inter alia, of Native land owned by her partly in severalty and partly in common with other Natives. She devised to her husband all her estate and interest in the 'Waimarama Block, subjcctlto certain conditions to bo fulfilled by him. These he had not fulfilled, and accordingly ho waived all claim to beneficial interest in them. On October-19, 1909, ho informed the trustees (J. 11. B. Coates, J. M. M'Lean, and J. D. Ormond, M.L.C.) otthis, and entered into an agreement with them that he should bo entitled to occupy the Waimarama lands until the trustees should require possession.

Plaintiff asked for a declaratory judgment determining the following questions:—

Whether the right of occupation conferred upon plaintiff by. Clause 9 of the will of Airini Donnelly, deceased, .constitutes, a leasehold estnte in land within the meaning of Sub-section 1, of Section SG, of tlio Land and In-

come Assessment Act? Whether the right of occupation conferred upon plaintiff by the- agreement entered into between him and the trustees of the estate of ■ tho late Airini Donnelly constitutes'a leasehold interest in land within the meaning of the sub-section? -. , . Whether, when land is owned in common by Enropeaus and Maoris, a leasehold estate granted by such a European to a European in respect of the undivided interest of tho lessor is exempted from taxation under tho section as being a leasehold estate in Maori land within the meaning of Sub-section li. The plaintiff's liability to pay a large sum in graduated laud tax depends upon the Court's, answers to these questions. If a majority of the judges found that the land is a leasehold under Section's 6; its value would have had to bo added to the value of the other lands of tho plaintiff, in order to ascertain the amount of graduated land tax payable by him. The view which Mr. Bell asked the Court to take was that, plaintiff had merely a use or occupation of the land, not a leasehold interest; and the Solicitor-General upheld the opposite opinion. The decision of the Court as delivered bv Mr; Justice Williams was that the plaintiff was "not the owner of a leasehold estate in this land." The Chief Justice dissented from the decision, and considered that plaintiff's occupation .of the land constituted a leasehold estate within the meaning of tho section.