DIRECTION TO JURY

Dominion, Volume 13, Issue 22, 21 October 1919, Page 3

DIRECTION TO JURY

UNSWORN STATEMENT

AN IMPORTANT JUDGMENT

In the Appeal Court yesterday His Honour Mr. Justice Hosking delivered tho reserved judgment of the Court in the case of Hex v. Walter George Perry and William Andrew Pledger, a. Crown ease reserved.

The case, as stated by His Honour .Mr. Justice Sim, for the opinion of .t he Court under section 442 of the Crimes Act, l'JUb, was as follows: The Kccuscd W. G. Perry and AV. A. Pledger wero arraigned in the Supreme Court on August ■? last 011 an indictment charging tiiem with having, on or about Juno 13, 1911), indecently assaulted a certain female. Both prisoners-"pleaded not guilty. It was proved that the accused committed an indecent assault 011 the girl, and that slio at the time was under the ago of IG. Counsel for the accused did not call any evidence for tho defence, and in addressing the jury admitted that « case of indecent assault had teen proved agains l " the accused, and that the jur'J oiight to convict them, unless they were satisfied that the case had been brought witluu the proviso of section 210 of the Crimes Act, 1908. He invited the jury to find that tho accused believed, 011 reasonable grounds, that the girl was of or over the age of lli years, and to acquit them 011 that ground. There was no direct evidence as to what the accused knew or believed about the girl's age. Tho girl said in her evidence in chief: "TIIO two accused did not know how old I.was. Neither of them asked 1110 how old I was." Jll crossexamination she said: "They had known mo for a good while beforo that. They had fooled witli me before." At Uif close of the address of counsel for. tho accused, counsel lor the Crown submitted .that. n«s there was no evidence before tho jury as to the belief of tho accused with regard to the girl's age. the jury ougnt to In directed that ttie defence set up by the accused was not open for consideration by tho jury. 111 support of his argument counsel quoted a case 111 which it was held that in order to constitute a defence under t'no corresponding provision of the English Criminal Law Amendment Act, 1885, the accused must have reasonable cause, and must, in fact, believe that tho girl was at least ll> years of ;ige. His Honour ruled provisionally that the jury might infer the belief (if the accused with regard to the girl's age from their conduct and the other circumstances of tho case. Ho directed the jury accordingly, and told them that they ought to convict tne accused' unless they were satisfied that the accused believed the girl to be at least 16 years of age, and had reasonable grounds for such belief. The jury returned a verdict of not guilty. The question submitted for the opinion of the Court of Appeal was whether tho Judge's direction to the jury was ''The Appeal Court held that although the burden of proving 1111 affirmative defence as to the reasonable belief of the girl's age was 011 the accused, tho jury might take into consideration the unsworn statement of the accused, in considering the question, and therefore.! Ilio 'direction given to the jury by the learned Judge was right. •Vt the hearing Sir John. Salmond, K.C., appeared for the Crown, and the respondents were not repiesented .1} counsel.