CRIMINAL PROCEDURE.

Evening Star, Volume IX, Issue 2708, 21 October 1871, Page 2

CRIMINAL PROCEDURE.

Attention has been directed to our criminal procedure on account of the numerous trials for perjury which have taken place in Auckland lately. The New Zealand Herald in an article on the subject says : Reforms in criminal procedure have not progressed with recent improvements in criminal treatment. The convict is more comfortable, but, it is said, the administration of justice is less certain. We scour our prisons but adhere to our legal precedents. The gaol bird will be well fed, who ever is pinched for it. Prison labor is dear labor ; in the opinion of the best judges. It is one of the ways of the world, that it never so anxiously contemplates a man’s innocence as when it has hanged him upon an accusation. It is true, whether we believe it or not, that the margin of ambiguity in the investigation of criminal charges is becoming wider every day. In England they had for forty years been crying out for a public prosecutor. In this colony the officer who represents the Crown, acta virtually in such a capacity. It would seem that the employment of an officer of so high intelligence should be a stcurity, even to the person charged, that his accusers shall take no advantage aud nothing exaggerate. And yet the existence of the office suggests the activity as well as the functions of the officer. This is true enough. The public prosecutor cannot well perform his duty without the aid of detective organization. It should also be remembered that detective organization is, in its very nature, aggressive as well as secretive. It acts upon the search warrant. This it is which makes a modern detective so for mid* able in a case of doubt, and so efficient aud valuable where the evidence is consecutive. There is another side, however, to the picture. What is the position of the man who is called upon to answer a charge, but is allowed no explanation except denial ? When a prisoner is called upon to plead according to our English forms, “ Not guilty ” is interpreted to mean that he is innocent. The Crown supports the affirmative of guilt, and uses the public money, the public officers," and it In ay be a small army of witnesses to construct the proof which establishes the proposition. The prisoner most frequently is bereft of friends, without money, aud his mouth being closed (by command and usage), he is exposed to the equivocal interpretation put iqjon acts and words, done or said, in a state possibly of abnormal excitement. To make the actual position of a prisoner intelligible, it may be desirable to contrast the English system with that which haa found authority and development on the European continent. Each of these systems are divergent as the races from which they come. The vigor of the old Norse stock admitted of nothing but the challenge aud the denial. The process was summary. But the Latin code insinuated guilt by a process of interrogation susceptible of boundless ingenuity. The result is obvious to those who have any experience, Cnilt in the ordeal of interrogation most frequently reveals or convicts itself. For it the surest protection is silence. Nothing in English practice is more familiar than a voluble prisoner heaping conviction {upon his own acts. For the innocent man the case is different. Silence in his ease assumes something of the demeanour of confession. The repudiation of guilt may be /irm, dignified, aud impressive; it will not be delivered unless sustained by some array of facts. This, however, is the thing which the innocent and depressed man is in tire worst possible position to procure. Judge Arney in a recent case, when sentencing a man) convicted of perjury, could not help saying, that had the two young men who were the object of it, been arraigned for the offence imputed to them, they wou'd probably have been found guilty and {sen? tenced to long terms of penal servitude. The perjurer would have been believed, aud had no persons come forward who had seen what really happened, the young men would have had no witnesses. The chances pf escape for them, in the opinion of an eminent Judge f would have been small. There does not seem therefore, so helpless and forlorn a creature, in the world, as a man placed in a criminal ■Jock accvs d of serious crime. He may deny his guilt a thousand times, still ‘ ‘ the situa : l ion” is against him. This aspect of particular cases haa very often excited the vigilance, if it did not on occasions awaken the sympathy wf English judges, who have ordered counsel to he nominated to defend the prisoner. We do not remember any case in this province short of a capital charge where this lias been done. There is. however, reason to up; rehend that, owing to the scattered positions of groups of population, the difficulties of transit, and the variations in time, innoce t prisoners are often in danger of being wrongly convicted or charges framed under exc tement, and prosecuted to save credit If it be so, no time should be lost in equalising the conditions of prosecutor and accused. At Home, ibis is constantly done. W.- cannot so why it might not be done here, unless, indeed, tLe circumstances under which the Crown Prosecutor holds his office, is a bar to it, if so, the office should be

placed higher in the scale of proessional endownment. It would not, we think, be too much to allow to the presiding Judge, whose experience would test the credibility of the facts deposed to upon the preliminary inquiry, the privilege, whore he saw the case required the interposition of the judicial office before as well as during the trial, <.t nominating counsel to defend a prisoner. There are many considerations favorable to such an expedient, beside the interest of t ie prisoner. These are, however, beside the question in hand. No person can sit at the trials during the criminal s-ssion of the quarterly Circuit Court, without being on orcasions painfully conscious that the innocent are found guilty, and the guilty get off.