CRIMINAL CASES

Evening Post, Volume CXV, Issue 36, 13 February 1933, Page 8

CRIMINAL CASES

HEARING OF APPEALS

ESTABLISHMENT OF COURT

RECENT LEGISLATION

• More than once from the Bench the Chief Justice, Sir Michael Myers, has commented on the absence of a Criminal Court of Appeal in New Zealand and has referred to the limitations of the New Zealand Court of Appeal, as constituted, in dealing with appeals in criminal cases. In a reserved judgment last year his Honour discussed the position and only recently, during the hearing of the appeal on behalf of Echvard Tarrant, he made some observations on the matter. , The Tarrant appeal and the passing of the Judicature Amendment Bill, which was necessary to enable this appeal to be disposed of before the ordinary sitting of the Court of Appeal next month, have served to focus attention again on the question of the establishment of a Criminal Court of Appeal in this country. In-the latest issue of the "New Zealand Law Journal" the matter is discussed editorially, and. there is also a symposinm of views of members of the Bar with considerable experience in criminal eases.

OUTLINE OF JURISDICTION. In the judgment by the Chief Justice to which reference has been made, his Honour pdintsd out the, differences between the Criminal Court of Appeal in England and the New Zealand Court of Appeal. His Honour said that' in England a person eonyieted on indictment might in certain circumstances appeal to the Court of Criminal Appeal against his conviction. That Court had ppwer to allow the appeal if it thought^ ; the verdict of the jury should be set aside on the ground that it was unreasonable or could not be supported on the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong'decision of law,: or that'On any ground there was a miscarriage of justice. The New Zealand Court of Appeal had power to direct a new trial on theground- of the j verdict being against the weight of evidence. Subject thereto, however, its powers of redress in the direction of granting a new trial were limited for all practical purposes to cases where • questions of law were reserved by the- trial Judge or raised with, the leave of the Court of Appeal. Even so, it was provided that no conviction shall !be set aside, "hor any new trial directed—although it appeared that some evidence was improperly ad-, mitted or rejected, or that something not according to law was done-at '•he trial, or some ■-. misdirection given— unless in the opinion of the Court.of Appeal some substantial wrong or miscarriage was thereby occasioned on the trial. The result was that unless the Court was able to say, firstly, that there was misdirection, and, secondly, 'that some substantial wrong or miscarriage- was thereby occasioned, the conviction must stand, even, though it might appear that there was a miscarriage of, justice on. some other ground. The prisoner's only remedy in such a case, was to apply under section . 447 of the Crimes Act (which authorises the Governor-General in Council) to direct a new trial in cases where doubt is entertained aa to whether the accused ought to have been convicted). The effect of the section was to impose on the Governor-General in Council ' a judicial) function involving the exercise, of the- jurisdiction, of a Court of Criminal' Appeal. . ;-'■:.'■ . ''AN OPPORTUNITY MISSED;" ! Commenting on the passing of the Judicature Amendment Bill recently, the "Law Journal" states that before the circulation of the Bill, a persistent rumour'was abroad that the Government had taken the- opportunity Jo provide at last for the establishment 'of a Court of' Criminal Appeal. "We regret," continues the journal, "that the opportunity given by the prepara-tion-of this Bill ..'. was lost. We. are firmly convinced that there would have been ho dissentient voice raised, to the conferring upon .the Judges of the Supreme Court. jurisdiction '■' similar to that exercised in relation to criminal appeals by the King's Bench Division of the High Court -..of Justice in England, and by several of the Dominion .judiciaries."" Reference is made to-the Chief Justice's views, which, the journal suggests, should have received the Tespectful and pracr, tieal consideration of Parliament. It is also pointed out that some of the functions affecting the libeHy of the* individual are now relegated to an unqualified lay.tribunal in the person of the rank and; fite of the Cabinet for the time being, upon whose advice and with whose consent the Governor-Gen-eral must perforce act. "Surely," the journal comments, "if on-no other grounds, this is an anomaly that cries out for removal. • ■.'■'■' VIEWS OF, COUNSEL. In anticipation of permission, being made in the Tecent Bill for the establishment of a Criminal Court of Appeal the views of V number of members of the- Bar were sought by the ''Law Journal," and it is shown that the consensus of opinion is in favour of such a Court. Brief extracts from the views expressed by Wellington barristers are as follows:—

, Mr. H. P. O'Leary: I welcome the proposal to establish a Court of Oriminal'Appeal in New Zealand.. We have been too long without this Court and have indeed lagged behind England where it was established in 1907. . .

It has Eaved from punishment many persons who had been unsatisfactorily or indeed unfairly tried. j Mr. W. E. Leicester: The best'argument in support of the establishment in New Zealand of a Court of Criminal Appeal is the fact that such a tribunal has operated for more than a quarter of a century in England, finding favour with the profession and the public alike ...

Mr. C. A. L. Treadwell: I can see no possible justification for opposing the creation of a Court of Criminal Appeal in New Zealand. . . With the creation of a Criminal Court of Appeal a substantial improvement will have been made in the .administration of justice.

Mr. J. Meltzer: The proposal to establish a Court of Criminal Appeal in New Zealand is one in which all counsel, whose work lies partly in the criminal Courts, as well as the public should be deeply interested. . . I believe that the setting up of a Court of Criminal Appeal in New Zealand is not only fully justified but is also urgently required. ■■■■'.'