SUPREME COURT.

Globe, Volume III, Issue 276, 30 April 1875, Page 2

SUPREME COURT.

SITTINGS IN CHAMBERS. This Day, [Before His Honor Mr Justice Williams.] His Honor sat in the Court Chambers, at 11 a.m. The Cab Cases. THE APPEALS FROM JUSTICE OF THE PEACE ACT, AND RE CONVICTION OF JAMES REID. In this case His Honor delivered judgment as follows : James Reid was convicted before the Resident Magistrate at Christchurch under the 19rh.sub-section of the fourth section of the Canterbury Police Ordinance, 1858, and has obtained a rule nisi for a writ of prohibition under the third part of the Appeals from Justices’ Act, 1867. The fourth section of the ordinance imposes a penalty of not less than 10s, nor more than £5, on every person who shall commit any of the offences therein specified. Several offences are set out in the previous sub-sections, and sub-section 19 imposes the penalty on every person who shall wilfully encumber or obstruct a public thoroughfare in any way not therein before specially described. The 15th section of the ordinance makes all penalties imposed by it recoverable in a summary way. The rule was obtained on live several grounds. The fourth and fifth of these 1 grounds are that the Canterbury Police Ordinance, 1858, is ultra vires, in purporting to alter the criminal law of New Zealand as »o the offences not punishable summarily, and that the offence charged amounted to an indictable offence, and was not determinable summarily. By the 19th section of the Constitution Act, it is enacted—That it shall not be lawful for any Superintendent and Provincial Council to make or ordain any law or Ordinance for altering’in any way the criminal law of New Zealand, except so far as relates to trial or punishment of such offences as these were or might by the criminal law of New Zealand be punishable in a summary way. The Provincial Council Powers Act, 1856, recites that it is expedient tl at the Superintendent and Provincial Council should have power in certain cases to alter the criminal law of New Zealand, and to declare certain Acts to be offences, and to provide for the trial and punishment of such offences, notwithstanding that such offences by the criminal law of New Zealand may not be punishable in a summary way. By the second section, it is enacted that the Superintendent and Provincial Council shall have power by any Acta or Ordinance to enact that certain Acts and omissions contrary to the provisions of such Acts or ordinances shall be offences within the province to which such Acts or Ordinances shall relate, punishable summarily or otherwise, 'as may thereby be directed. It is contended by the defendant that the offence with which he is charged amounted to a nuisance;' that as such it was by the law of New Zealand an indictable offence at the time of the passing of the Constitution Acts; and that the Provincial Council’s Powers Act. does not extend to authorise Provincial Councils to make an indictable offence punishable summarily. The efft ct of the Canterbury Police Ordinance is not at all to disturb or supersede the remedy for a nuisance by indictment, nor to give a summary remedy for a nuisance ip general. Certain of the acts it prohibits may happen to amount to ? nuisance, and be therefore indictable as a nuisance. All that the Ordinance does in these cases is to give the prosecutor the option of proceeding in a simpler and more expeditious way. (R. v Robinson and Barr, 800.) This appears tome to bean exercise of power clearly within the provisions of the Provincial Council Powers Act, 1656. The third ground is that the conviction does not show that the defendant unlawfully obstructed the thoroughfare. The omission of the word “ unlawfully” is clearly no objection to this conviction, as the word is not used in the Ordinance as part of the description of the offence. The first and second grounds are that it did not appear, and the evidence adduced on the hearing of the information did not show that the defendant had been guilty of an obstruction qf the thoroughfare contrary to the Ordinance, or that he had in any way obstructed it. By the 27th section of the Appeals from Justices Act, 1867, tha Court has to consider the evidence adduced before the Justice, The remedy given by this Act to review the decisions of Justices by writ of prohibition does not obtain in England, but I think it in every way desirable to follow the principle adopted by the English Courts where the decision of Justices is reviewed by certiorari or otherwise. If this view be correct, what the Court has to decide in considering the evidence is pot whether the conclusion drawn by the magistrate be or be not the inevitable conclusion from the evidence. It is sufficient, if there were such evidence before the magistrate as would be sufficient to be left to a jury. (Lord Kenyon, G.J.; R. v Davis 6 T.R., 177). The magistrate is placed in. the position of a jury (R, v Ream., 6 T.R., 375), and the only question is whether, if the evidence in this case had been laid before a jury, it could have been said that there was no evidence on which to convict (Brown v Tagner and others, 32 L.J., M.C., 107.) Here the evidence is, that the defendant, with his horse and cab, |came opposite the Criterion Hotel, in Gloucester street, about a quarter to 10 p.m. on the 4th February last. Twenty minutes later,* he was told by a policeman that he was causing an obstruction, and to go away; he then said he was engaged. At at quarter to eleven his cab went away with somebody in it. No one appears to have been prevented passing, either on the footpath or on the road. There were ten other cabs besides the defendant’s. The theatre was open, and there is cue house between the theatre and the Criterion. In the affidavit filed in this Court by the defendant, he swears that he went by engagement to. the Criterion Hotel, and inane-’ diately his employer was ready went away. This cannot be looked at by the Court for the purpose of affecting its decision (R. v Bolton, 1 Q.B. 66.) The Court can only consider the evidence adduced before the justice and this evidence subject to the limitations I have already stated. In >rder to prove an obstruction or encumbrance, there is no need to shew that any one lias been hindered in passing. This is a clear etymologically. Looking at the previous clauses of the Canterbury Police Ordinance, and taking tin meaning of the words “ encumber and obstruct ” in the clause in question to refer to encumbrances and obstructions ejusdem generis as those referred to in the previous sections, I think these words may be construed to mean “ doing some act in a pub-

lie thoroughfare inconsistent with its legitimate use, and that would have a tendency to hinder the free passage over any part of such thoroughfare.” The legitimate use of a public roadway, so far as vehicles are concerned is for them to pass to and fro, and to take up and set down passengers, not delaying more than reasonable time for that purpose. There was, I think, some evidence from which the Magistrate might conclude that the use of the thoroughfare by the defendant went beyond this and that the act of the defendant had a tendency to hinder the free passage over part of the thoroughfare. This would bring the offence within the terms of the Ordinance, and justify the conviction. The rule will be discharged with costs. Leave was given to Mr Garrick to appeal. APPEALS FROM JUSTICE OF THE PEACE ACT, AND BE THE CONVICTION OF HARRY MUNYARD GOODGEB. In this case His Honor delivered judgment making the rule nisi for prohibition absolute without costs, on the grounds that the conviction was bad, owing to the justices not having as required by the Malicious Injury to Property Act assessed the value of the damage done and apportioned the penalty as therein provided. Dr Foster obtained leave to appeal.