SUPREME COURT.

Evening Star, Volume IX, Issue 2551, 21 April 1871, Page 2

SUPREME COURT.

Tina Day, IN BANCO. (Before Mr Justice Chapman.) REGINA V. STRODE, This was a rule »isi calling upon Mr strode, R. M., to shew cau«e why a mandamus should not bo issued, directing him to proceed with the hearing of the information in re Regina v. Lemon. On Mr Macassey stating he appeared to move the rule be made absolute, His Honor remarked it was understood he heard the argument in vacation by consent. Mr Smith, who appeared on behalf of Mr Lemon, was instructed to object to its being heard. Mr Macassey said he had Mr Strode’s consent to the rule being argued, He submitted Mr Lemon had no loot# standi in the present circumstances. In the case of conviction ho would at once concede the defendant would have a right to appear on the argument of a nils ; for he would clearly be interested in the subject matter of the appeal, or argument, and defendants always appeared under such circumstances. In the present case it was simply asked that the magistrate should be set in motion.

His Honor : Surely Lengon is sufficiently interested to appear. Mr Macassey submitted not. Under our rules, and by the case of Regina r. Ingham, it would be found that in cases similar to the present one, the Court simply required the magistrate to show cause. Supposing ho asked for a rule requiring a justice to take an information charging the person named in it with the commission of some offence, until that information was actually there was clearly nothing for "the defendant to complain o£. His Honor : Here an information has been taken and heard, and dismissed upon a point of law.

Mr Maoassey : Very true. That particular summons had lapsed ; if he were to take it up ac'ain the defendant might properly say that having appeared to it, he should be re-

quired to s|tow cause why the rule should not be mad 6 absolute. He did not propose to do that, which would be absurd. That information had been adjourned sine die, aud had consequently lapsed. He was simply asking that the magistrate should do something, which, after being done, should be precedent to the defendant being required to come before the Court at all. Mr Smith directed attention to the terms of the rule which asked Mr Strode “to show cause why he should not proceed with the hearing of the information, a copy of which is annexed. ”

Mr Macasscy : That is to say, because the first summons has lapsed, the magistrate having refused to proceed with the hearing. The next step the magistrate would have to take would be to issue a summons directing the defendant to appear before some other justice cither in Wellington or some other part of the Colony. Until that summons was issued His Honor remarked that Mr Macasscy would require the magistrate to proceed upon (hat information by issuing his summons ; and if the summons were disobeyed, to issue his warrant. Surely that clothed the party charged with sufficient interest to entitle him to appear, although the rule was not directed to him. After some further argument, in the course of which Mr Macasscy said it was of great moment to his client (Mr 6. B. Barton) that the Court should express its opinion as to whether or not the information disclosed an indictable offence, Ids Honor expressed the opinion that Mr Lemon had a right to appear in some shape, and that he could not hear the argument unless by consent. Mr Macasscy intimated that he would tomorrow ask Mr Stroke to issue a summons, and would leave him to take the consequences. His Honor said perhaps Mr Smith, on further cmsidcration, would get consent to appear, and hold Mr Strode harmless, casting upon Mr Lemon the responsibility of costs. If that were the case, and both parties consented, he should be happy to sit on another day during vacation. So far as he was c uicemed. he was willing that a decis o i should bo extracted from the Court. Mr Maoas ey said Mr Strode had been informed that if the rule was made absolute, it was the prosecutor’s intention to ask that the hearing should take place at Wellington; therefore the defendant would he put to no inconvenience.

His Honor said that when the rule was ohtatnod the point that impressed him was that Wellington was the proper place to hear the information ; and, although he might be of . opinion with Mr Macassey, as he was inclined to be then, and was now—subject, of course, to anything that might be shown to the contrary —that the clause in the Statute disclosed an indictable offence; yet he warned him that he should feel considerable hesitation in granting the rule, and should perhaps refuse it, as he thought the matter ought to be remitted to Wellington. Perhaps that expression of opinion would facilitate matters ; but at present he could not go on without consent.