SUPREME COURT.

Evening Star, Volume VIII, Issue 2508, 1 March 1871, Page 2

SUPREME COURT.

IN B\NCO.

This Day

(Before Mr Justice Chapman.)

THE TELEGRAM LIB El. CAS K

Argument of a rule nisi for a writ of prohibition, restrainining Mr Strode, R.M., from proceeding further with the hearing of the case Regina v. Barton, on the grounds that the information therein d:d not sufficiently describe the nature of the alleged offence, that the information was laid by a stranger, and that there could be no libel upon the .Government. Mr Macassey moved the rule absolute ; Mr James Smith, with whom was Mr Haggitt, showed cause.

Mr Smith submitted in the first place that the rule had been applio 1 for under a mi ■ - conception of the object of a writ of prohibition. The effect of a writ of prohibition as laid down in several works of great an hority, Bacon’ Abridgment amongst the number, was to keep inferior courts within their jurisdiction. But it was sufficiently obvious that the present application was not based upon any suggestion that the magistrate, in this instance, was dealing with a matter which was not within his jurisdiction. Mr Macassey remarke 1 that it might save time were lie to slate that he intended to argue that the matter was clearly beyond the jurisdiction of the magistrate. Mr .Smith submitted a Court discharging its magisterial jurisdiction was not capable of being controlled by writs of prohibition ; prohibition could only lay against an inferior Court when acting judicially. Besides there was an obvious reason why it should r.ot he done. In the first place the Court would presume that every magistrate knew his duty, and would not commit a person upon a charge not cognisant to the criminal law. His Honor observed magistrates were in some sense a Court, because they were entitled to commit for contempt, and that seemed to bo the test of a Court. Mr Smith ; But contempt was quite separable from the jurisdiction of the magistrate when discharging a mere ministerial office. As regarded the first ground of objection, he submitted that the offence was sufficiently described in the language used in the information. The defendant was charged that “ ho did on a certain day unlawfully write and publish a certain false, scandalous, and defamatory libel of and concerning the Government of New Zealand, as by law established.” That was the form described i i Judge Johnston’s work on “The Justice of the Peace,” and appeared to have been taken from the form laid down in Oke’s Formalist There was one obvious reason why the same particularity should not be regarded. In an indictment the offence must be so thoroughly identified that the defendant after his trial might be able to plead an acquittal or previous conviction, should he be again tried for the same offence. Before the magistrate, lie apprehended it was quite sufficient that such language should be used as indicated that the defendant was charged with a criminal offence. Probably before the magistrate proceeded to issue a warrant for the apprehension of the defendant he would require to have an information supplying further particulars, as he also would to enable him to found a warrant of commitment capable of holding water. He had to remark further that the information in the present case complied with the directions in the Justices of Peace Act. In the first instance it was only necessary to charge an offence in • general language, so long as the words showed an offence known to tho criminal law. Afterwards, as stated at page 310 of the Act, in cases of indictable offences, the information could be amended as directed—“ If the offence upon which the information is founded be not within the personal knowledge of tho informant. ’I hs matter of the above information is substantiated before me on oath, &c.” On reference to section 50, it would he seen that the whole policy of the Act was to prevent any objections calculated to frustrate the enquiry before the justices. That section provided that “no objection shall be taken or allowed to any such information, summons, or warrant as aforesaid for any alleged defect therein in substance or in form, or for any variance between it and the evidence addue. d on the part of the prosecution before the justice who shall take the examination c f the witnesses

in that behalf as hereinafter mentioned, bub if any such variance shall appear to justices to be such that the party charged has been thereby or rpislb% it shall be lawful for^inch \jf(9tides at the request of the jwrty so charged to adjourn the hearing of the case to some future day, in the meantime to remand the party s) charged or admit him to bail in manner hereinafter mentioned.” He submitted that section was decisive of the present controversy. As to the second objection, be submitted that if the information, as he contended it did, charged the defendant with a public offence, viz , libelling the Government of the Colony, it was compete t for any of her Majesty’s subjects to lay the information. Judge Johnston, at page 200 of his work, pointed out that “ In every case, except where the statute creating the offence specially directs by whom the charge shall be preferred, which is rare, ib is open to anyone to lay an information for an indictable offence.” The proper course therefore had been pursued in this instance In conclusion he cited the Kin;/ v. Burdell, 2 B and A, 115, to show that it was sufficient to say a libel had been published of the Government. If in that case an information couched in similar terms to the present one, avas sufficient to put the defendant on his trial a fortiori, there .could be i o doubt for the purposes of a magesterial enquiry, the present information was quite sufficient. (Left sitting.)