SUPREME COURT.

Evening Star, Volume VIII, Issue 2511, 4 March 1871, Page 2

SUPREME COURT.

IN' BANCO,

This Day

(Before Mr Justice Chapman.)

TUB QEK2N V. STRODE AND ANOTHER

His Honor delivered the following judg merit in this matter ;

Jiu c nisi c Ring nn the defendants to show cause why a writ of prohibition should not issue, rest nining the Resident Magistrate from further proceeding in a prosecution for lili l on the Government of New Z?a'and against Mr G. B Barton, editor of the Olnyo Dail;i Timex. The jurisdiction of the Resident* Magistrate is questioned on live grounds: —1 That the information sworn to by Mr Rrent docs not show jurisdiction. 2. That the words of the libel aio not set out in the infonna'ioa, so as to give to the Magistrate jurisdiction over the subject matter. 3. That if this be a public prosecution —that is, if the alleged libel he against the Government oi the Colony—the Attorney-General, is a one compel eat to set the Resident Mag strate in motion. 4. That if the libel he not again t the Government collectively, but against the individuals who compose it, the informant Brent: has no loem si mull. 5. That in order to support a charge of libelling the Government, the libel must bo of a seditious eh raoter.

The first ground was narrowed to the question whether I could take judicial notice tnat Dunedin is in tho Colony of New Zealand. I have already disposed of that ground by deciding that 1 can, and indeed am hound to do so.

The next question is, Are the words of the libel necessary ? or to put the question in another forrn—is the alleged offence sufficiently described "to give the migistrate jurisdiction to enquire. Brent makes oath and says that ho has reason to suspect and does suspect that George Barnard Barton, of Dunedin, did, on, &c., at Dunedin, “unlawfully and maliciously write and publish, *c., a certain false, scandalous, and defamatory libel of and concerning the Government of New Zealand as by law established, and of and concerning the administration, &c., by the said Government of the electric telegraph, established under,” &c., mentioning the Act. Now it i-i generally arlmittel and not questioned by the learned counsel who supports the rule, that an information sufficient to sot the Resident Magistrate in motion, need not he as precise and ample in its averments as an indictment, or even as an information in a case where the magistrate is called upon to convict; but he says that it should be full enough to support a warrant. I think here, too, a distinction should be recognised as to warrants. The warrant in Dill v. Murphy was a warrant in the nature of a conviction, and there, no doubt, great particularity is required. Mfist of the other cases cited by Mr Macqssey were fiqal warrants. But in cases of inquiry before magistrates there are two other preliminary warrants, namely, the warrant to bring the party charged before the magistrates, and the warrant to commit for trial; and no case has been referred to which shows that the first of these need have also the precision and amplitude of a conviction, or that the information must necessarily be as ample as the wa rant. The object of the information is to show the Resident Magistrate that an indictable offence has been committed ; and to warn the accused of the offence with which he stands charged. The whole language and spirit of the Justices of the Peace Act, 1860, shows thM a very general description of the charge in the information summons and warrant is enough. The only

imperative isn that it shall be fifth. has this (lircctioriV ■ fifijfS toe* substance of the ‘‘ijhe *|pr>ii of summons has t.ii^'€(te<^n' shortly the matter of the information f anir this exactly complies with tnVJanguage of the 47th section, which permits the Magistrate in lieu of warrant to issue his summons directed to such “ statin’/ shortly the matter of such charge ” The same section then empowers the Magistrate, if the person summoned should fail to appear, to issue his warrant to apprehend such person so charged, and when we come to lhe foimi in the Schedule, we find the direction that the charge is to be “ as in the. summons ” Jerviss Act is rather less instructional. The enacting clause docs not contain the words “ stati ny. shortly the matter of such charge,” and the directions arc in the inf rmation, “stating the offence ,” in the summons “stating shortly the offence,” and in the warrant “ns in the summons.” Though 1 do, not think Houldeu y. Smith applies . td this case, : because the plaint itself showed that the defendant live,d, out of the jurisdiction of the Court - , "I accept that case a i showing a connection between the informal' tion, summons,' and Wa-rant; 'hut 1 am clearly of opinion that this information does state the ‘ substance of the offence ” unequivocally, in terms sufficiently certain to set the magistrate in motion to, support his summons and, if need had been, to support a warrant to cause such person to be brought before him. The final warrant of committal for trial is not bisod bn the information; summons, and .warrant to compel the attendance of the persons charged. It is based entirely on the evidence adduced at upon which the llcsidjjnt Magistrate ,decided' wheth r lie..ought to dismissithe case or commit for trial. The learned counsel puts another test as to the sufficiency, of the ‘informationI—Could’perjury 1 —Could’perjury be asisijVued,' l or could a conviction for perjury take place on such a statement ? J answer that the s atute doefi not ebsteuip’ate such a tbSt. When a mau swears that’ “ he suspects,” I do n-.t see how it couhl he proved that he did not snap ct; and ,by alio .wing an information on suspicion, the Legislature must have; foreseen the impossibility. , - But the accused has this, protection, that, if he be falsely and maliciously, charged,, he has his remedy hy action. I think the requirements of the statirte fulfilled by this information. I grant tlx .t it could not bo amended.any more than an affidavit couhl be amended?' but the 50ti> seblipn, while it information b§ questioned, amply 1 protects the defendant against being misled. ; ■ n: The 'next two objections may be c mveni-; 6ntly considered, together.-/"The! Charge is for" ■ a libel of rathfer libels, on two separate days, : named against the Govern meat of New Z s a ; laud as by duv established.. This is a. public ■ offence, and like an assault, accompanied;% c roumalances. of, an aggravated natnre, such as riot or the obstnictioh of a peace officer, cannot be *c mp nnded. Kier v. Leemau' in the Exchequer, Chambe-, seems to throw doubt upon the power of compromise or of com. ouncliog anything beyond the private right to damages, bub the case decides that tlfe public nature of the offence, precludes coinproiris-. Who then may lay the information in the first instance so as to set the Resident Magistrate in motion ? Mr Macassoy contends that in the case of a public misdemeanor as distinguished from a simple assault or private libel, the Attorney General can alone origina' e proceedings. Now it is generally laid down in books upon th ■ Criminal Law that in all felonies and misdemeanors any person .may become prosecutor, unless the statute which creates the offence provides c.therwise. This has certainly been the practice as long as I can remember, and I am not awa’e that it has been questioned. MiMac >sscy contends that (ho distinction is laid down as to'where'particular prosecutors are named, is a dis’inction, as to offences by statute only ; and that ’ the rule that ahy person may s t the law in motion dues not app’y to public mis Icinemors at common law. I am not aware of any authority for that distinction, nor has’ Mr Macassey po’ntcd out any. The foundation of the practice that it is competent to any person to lay.an, Monnatkn .for. _yn„iudic table offence, is not difficult to trace. The law of England has never recognised a public prosecutor. This hj >s imparted to the,prosecution of offences the. chara ter of wlxqt Mr Fitzjaineh Stephen calls “ a litigation between the prosecutor and the a'ceused. ” “The law,” he says, “ ivot only; permits anyone to take upon' - himself tjae function of q public prosecutor, whether he’be aggrieved or not, but in some cases requires,” &e This is confirmed hy the language qf the usual p ocl iroatiqn of the Ju Igos of Assize ou opening th ir-courts. It calls upon “ any one to infrnn my lords the Queux’s JusticeV of any treasons fclon’es Qr inisdeixjfanois, ” Ac. Gould this have been cbntinued if the law were not universal ? I can find no authority for saying that although common assaults, and what may be calle I private Jibe’s, are usually prosecuted by the party grieved, a third persoil may not also exhibit the necessary inhumation on oath. Take for instance a c immou assault iu the street, a policeman arrests the offender, which he may do on seeing the assault, takes him before a magistrate, and swears to the information; or a passer-by who has winnessed an assault gives theinforniatiou on oath. I know no authority for saying that such a proceeding would bp illegal, or would fail to give , the. Resident Magistrate or any two justices jurisdiction. The learned counsel cites Kier v. lieeman, (is showing that such a prosecutor could not compromise the charge, niid'lie invites - the inference that ho cannot therefox-e prefer it. I grant the rulc, but not the inference. The party a ,t grieved by the charge cannot comI X’omiso it; for that Ku-r v. Iceman is express authority. That must be done by the party grieved to the, extent which the law allows, and oven the extent qf that power seexps frqni Kier v. Leeman to be subject to limits. Nq doubt in a cage like the .present the Attorney.General plight (i’e a criminal information without, leave of the Court; but in modern times that is a proceeding not held in public favour, and the ovdinary course of proceeding before the Magistrate is much' morcfavovirable to the accused - , - because his counsel has an opportunity of cross-examin-ing the witnesses, and may also (unless he elect to reserve hj a defence) call witnesses to rebut the chxrge-, I have already said tn»t this libel being alleged to be against the Government as by lav - as Hb3ish, is at public offenx,;—oven if a common'Hbol be denied that character. As such, qny one may_ prosecute if T am, therefore, of opinion, and' that Without any doubt, that Ml Breixf has ■ aldcus standi 1 ‘ih ‘the matter, l am 'alflo stroiigly irtclined to’ think that the rule that anyone may get the law in motion,

to such offences as assaults and Bydiflw libels, although such third person SdxifflSe incompetent to compromise whatparty grieved might compromise. ■fjkffff.o the last objection, that a libel on The Govenxment must be of a seditioxxs charactar, I am inclined to thixxk that all libels which tend to bring the Government as by law established (as distinguished from the Government iix the sense of the Minist[y of the day), iat o_c ontgm pt, disrepute, and disfavour, is clothed with a seditious character (' Jnxt fchpt pax libel, ,Ox\ the Government, in the seiis'e'of a Ministry is not. The wqrd s.pditieixs, is xxof.Y£ry4ye!l-defined, but keeps its place in indictments nevertheless. It is sufficient for me here to say that it is not necessary hi, an/ information silniinons or warrant, which arc merely required by law to set forth f‘ t3xsrSlxbstauoe of the offence.” 1 think, the Gove nmentof the Colony, as by law as--a collective body is capable of ,eiiig - defam.\l, qud qf protecting itself froili clefqruatiou .its any ofier body, ■(as tlieDdrliam cletgy, fhrjnstxube), without going so far qs to lay the ihteht' to overturn the form of Government.' Ih'an indictment the' intent it often - laid xh different ways ; 'but the minatory'information need not do so. It is xmrlecbssary for me to pass under review the numerous,cases /eited by;counsel, but I have not neglected to consider them, j : One .word op Mr .Smith’.’- proposition : that a writ of prohibition does not lie against Magis rates., outing, ministexially, that it only lies to! kt ep;itiferiop Courts within .their, jiirisdidtiqu., GTimngK'it bas ceased to be ix'ccessar.g.-tflwtUMtiittine the piixxt, I thi-tk if right 1 not conciir with hirh.' The Uesideht Magistrate or Ju txces, wjicn acting ministerially in one '’seiise—that it ajldillarjf ,{©>• higher tri- ’ hiihal—do nct jiidiciouiljl iyitlxin their jurisdiotihix, axid d()' Ubilif' They can b'hxijiit Tor 'cbflfeijxiif; y>lren jin inferipatimi ig, , prefe : rf ; ed,’ : They mUsV jiiilge and ilctermhie’whether it” |s ! sijffieie\')t ! t(i;justify them | in ( procee lih^; ; as to the feceptiln' - '6r jeotions>f -ifyi ence is a ju iicial act; and ,finally they must judge and determine whether the evi lence warrants a cqmmittaLT This'ilast is es-iecially uxentiouc pf the cases mentioned biy Mr Macassey*, b\xt I hfiyq lest the reference. F6r the rule must Question of costs ; p be further coq^lerqd^. Mr'jlaca'sseJ' askeclijijit costs might n °t go gainst’; the' de'ffiJJaht, ks ’ftie i-ajsed^Wimiiomixt'achafdeter; but I JiislHhhdr h&’tobiL to thiifk'thathc could not 'do othi'f iliaix allqwlihe&. ' u

m. - ! IN iBANERtI-PfPCITv• ■

In thtf <! matter --rtf l frdnhy ■ Sheppard, cf Oamarli; abdication; by the ‘trustees' ’•W' : d(fclaVe ii de&l. of "Conveyance fraTu(Wlertt t ’h¥i^ l^onb.r H np : bfeld the right of the i’ea[yoiidvrit(thc bh,\iki‘il{)t , to have the question raided decided by a jury, and dismissed the applicftti lit withdiif costs.