CROWN PROSECUTOR AND JURY.

Dominion, Volume 6, Issue 1618, 9 December 1912, Page 7

CROWN PROSECUTOR AND JURY.

POINT FOR APPEAL, PASSAGE IN A CRIME TEIAL, (By Telegraph.-Press Association.) Auckland, December' 8. A technical point was raised in the Supreme Court yesterday, before Mr. Justdeo Edwards-, when Charles Barker and Id word Bailey were brought up for sentence. They had been found guilty of stealing .£l7, with violence, from tho person of Alexander Eastgate. Mr. J. 11. Reed, K.C., appeared, with Mr. W. A. Black, for Barker. : Air. W. Haekett who appeared for Bailey, asked his Honour to reserve a question for the Court of Appeal. He stated that when the Drown Prosecutor had addressed tho jury upon a most essential point—namely, as to whether or not a hand had dived into Eastgate's pocked and taken out money—ho had sand "that was evidence, and it was uncontradicted." His Honour had reminded l tho Crown Prosecutor that he was transgressing the statute, which said that tho fact that prisoner did not elect to give evidence on his own bshnlf was not to bo made tho subject of comment. Counsel contended that it was impossible to say what effect such comment as that of " the Crown Prosecutor might have on the jury. His Honour had had to remind Mr. Tole four times, and it was well known that no comment was allowed to be made if the prisoner did not choose to go into the witness-box. There had been no one hut prisoners and informers present at the time at which this alleged snatchinpr was supposed to . take place, and Mt. Tole'a remark that the informants' version had not been contradicted was particularly applicable to prisoner. Counsel contended that Mr. Tole's remarks constituted comment, and the matter was so important that the opinion of the Court of Appeal should be obtained.

The Hon. J. A. Tole said that he had been too long Crown Prosecutor not to know the limitations of tho position, and he took his Honour's remarks to be more in the nature of a warning lest, in hia enthusiasm, ho (Mr. Tole) should go on, and transgress the. statute—not that he had actually done so. Mr. Tole added that the words which he had actually used in referring to the incident of taking money were: "This has not been denied. It could not be held that there had been any comment in that.

His Honour said that he intended to state a case for the Court of Appeal. His remembrance of the words -used did not agree with Mr. Tole's, but he hoped that counsel would be able to agree as to what was actually said. He had consulted Mr. Justice Cooper, who agreed that the case was properly one to state for a higher Court. _ •

Mr. Reed, in answer to his Honour, said that lie did not intend to raise the point o,n behalf of Barker. If the Court of Appeal ordered a new trial in the case of Bailey the other prisoner could take advantage if he chose. In the meantime counsel would ask that Barker be sentenced. His.Honour pointed out that Barker had a .previous conviction against him. The case would not be treated as one of robbery, as the evidence did not support that charge, but as one of theft from the person.' , Prisoner was sentenced to eighteen months' imprisonment with hard labour. Bailey was released on bail in one surety of .£IOO, which Mr. Hackett.said woulcf be forthcoming.