CAN A SECOND TRIAL FOR MURDER TAKE PLACE?

Hawke's Bay Times, Volume XII, Issue 512, 26 September 1867, Page 2

CAN A SECOND TRIAL FOR MURDER TAKE PLACE?

(From Uie Home Xews, July 26th.) Ix the Judical Committee of the Privy Council on July 10—present, Sir K, T. Kindersley, Sir J. Colvile, Sir E. V. Williams, and Sir J. T. Coleridge—judgement was given in (he case of “ the Queen v. Bertrand,” in which a very important question was raised as to the mode of taking evidence on anew trial for murder. Other points of considerable moment were involved in the investigation of the case, which occupied two da\s in hearing. The circumstances of the case may be briefly stated as follows :

The prisoner was charged with the murder of one Henry Kinder in the Dec. of 1865, aud tried at Darlinghurst, in Sydney, at the assize next ensuing. The trial lasted for three days, and jury were discharged without giving a verdict, having deen locked up for more than twentyhours. The prisoner was subsequently tried by another jury, and, having been convicted, was sentenced to death. On the second trial the judge who presided allowed the evidence as taken on the first occasion to be read over, and the witnesses to be examined bv either side. In the March of 1866 a rule was granted, on the application of the prisoner, by the Supreme Court of New South Wales, calling on the Attorney-General to show cause why the verdict of “ Guilty” found on the second trial should not be set aside and a new trial granted, on the ground that the ev'dence of some of the witnesses had been read to the jury from the notes of the Lord Chief Justice at the former trial, and that a reply had been permitted, contrary to the practice of the court, by which the prisoner has been prejudiced in his defence. On the argument of the rule nisi, Mr Justice Hargrave and Mr Cheeke gave judgment to the effect that at the second trial a substantial miscarriage of justice had occurred on the grounds stated, and that, therefore, ther eought to be a new trial. The Chief Justice, on the other hand, gave judgment to the effect that as the evidence had been taken ou the application of the prisoner ho had not been injuriously affected, and that, therefore, the rule ought to be refused. Mr Justice Fawcett concurred with the Chief J ustice, but withdrew his judgment in order that ttiere might be an appeal to her Majesty in Council, and the verdict found by the jury—the subject of the appeal—was permitted to be set aside and a new trial was provisionally granted. The questions submitted to their lordships iu the appeal were twofirstly, could there be a new

trial for the felony ? and, secondly, whether the evidence on the second trial had been properly received ? As we have stated, the discussion of the points raised occupied two days, and the criminal law bearing on the subject was exhaustively discussed by the learned lords and the counsel for the respective parties concerned.—Sir J. T. Coleridge delivered the judgment of the court, and having recapitulated the facts of the case, and quoted all the authorities bearing on the question raised, gave it as the opinion of the court that no miscarriage of justice had taken place, and that the judgment of the Chief Justice of Now South Wales must be affirmed. The appeal must be sustained, but without costs, and the order for the new trial reversed.