DISTRICT COURT.

Hawke's Bay Times, Volume 19, Issue 1361, 28 June 1872, Page 2

DISTRICT COURT.

THURSDAY, JUNE 20. The Queen on the prosecution of Frederick; Sutton v. P:iora Toroloro for perjur , in the matter of an order of the Court calling on Frederick Sutton to show cause why the indictment should not be quashed. . (Report of Decision continued from last night's Times.) One of the most importaut duties of a judge is, to see that no man is. pat on his. trial unless the facts alleged against him by his accuser amount to a legal offence. This power is incident to his office, and is essential to the efficient administration ol justice; as, otherwise, no man, however innocent, could escape the disgr-ice and ignominy of having to hold up his hand at the bar oi a criminal court. The power of quashing indictments has been exercised by our judges at all periods of our history, without consulting the accuser, or any officer acting on behalf of the Crown. An indictment is an accusation reduced into writing. During seveial cunturies they were made viva voce, in open court, to the presiding judge; and, even at the present day, the frame and strain of an indictment, although in writing, is that of a number of persons appearing before the seat oi justice, and informing the court, which may consist of one or more judges, that suuh a person has, by doing certain acts, committed a criminal offence. In ancient times, the King's court con-

sisted of those who held lands of him in chief, and who were bound by (heir tenure to attend there to aid in the administration of justice. They were styled batons, and they were pares of the court in respect to each the absence of the King, the Chief J ustiee of England, or some other great officer, presided, which president was not necessarily one of the pares, as is the case now with the Chancellor of England, who is ex officio Speaker in the House of Lords.

Glanviile, Biacton, and pritton, are our highest authorities respecting the common law of England. We leavn from them that it was the duty of the presiding judges in the King's Court, whenever an accuser presented himself to ascertain from him by interrogations, the nature of the charge. If it did not amount to a felony, the Judges did notsubmit the case to the Barons, but im posed a fine themselves on the accused. Tf it amounted to a felony, the case was submitted to the Barons for judgment. And if the allegations of the accuser did not constitute a legal offence, the oral indictment was necessarily quashed There were no Grown prosecutors in those days, as criminal issues were for the most part, decided by battle between the accuser and the accused, a mode of proof deemed at that period the most convincing, since it was a solemn appeal by both parties to the decision of Heaven. All cases in which tl\e King was a party were tried at that period in the King's court in time of Parliament (Brit., Lib. 1, c. 23), The

same rule held in the courts of the justices in eyre, who went circuit at stated periods ; the judges had to satisfy themselves that the charge prefei red amounted to a legal offence, before the acoused was called on to defend himself. "If," says Britton in the same chapter, " the accused says he will defend himself by his body, and it be in the case of felony at the prosecution of another, then let the matter be examined before buttle is joined, whether the cause be trespass or felony, and if trespass, let the appeal be abated by the justices ex officio." In civil causes, the judges had the same duty to perform, whether they decided the cause themselves-, or had it decided by the verdict of a jury; they were bound to see that the claim preferred was a legal one. They had to inform the jury of the nature of the plaint, and of the defendant's defence to it. (Brit., Lib. 2, c. 21.) Juries were not then, as they are now, judges of fact in our courts; they were simply witnesses from the vicinity of the place where the transaction before the court took place. They had been previously w arned by the sheriff that bhey were to inform themselves touching the facts and circumstances of that transaction, and to appear before the judges on a certain day, in a particular place, to make a true statement, upon oath, touching that transaction. No wit- , nesses were examined before them ; they were witnesses themselves, liable to be fined if they spoke to anyone after they had entered the witness box, and they were often interrogated at length, after the verdict had been given, touch ing the grounds of it. At whatever time the usage commenced of reducing accusations into writing, it could have made no change in the judicial duties. Whether the accusers made their charge in writing, or by word of mouth, it was still the duty of the judge to see that the facts alleged constituted a legal offence. In an indictment, the special manner of the whole fact ought to be set forth with such certainty, that it may judicially appear to the court that the indictors have not gone upon insufficient grounds. (4 Bacon Abr. 311 ) The same information ouglil to be in the written instrument as would be required were the accusa lion made viva voce.

The English judges, by their commission, are sent to inquire, hear, and determine touching criminal offences. They prosecute the inquisition to ascertain whether the accused be guilty or not of the offtnce laid to his charge; they are the prosecutors. Even at the present day, the Attorney-General, or other law officer of the Crown, when he goes circuit to prosecute, goes as one of the Commissioners, being named in the same Commission with '.he judges. It sometimes happens, in the remote parts of England, that the judge himself has to conduct the prosecution, when no one appears on behalf of the Crown, and that even when the accused is defended by counsel. The prosecution consists in the examination of the witnesses, and of the written evidences (if any) adduced, and not, as is too often supposed, in making a speech against the prisoner. The Queen is as much interested for the accused as against him. " By the common law," says Bacon in his abridgment (iv. 332), "the judges may, in discretion, qua>*h any indict raent for any such insufficiency in the body or caption of it, as will make a judgment given on it against the defendant erroneous." In the case of Sir William Withy pole, the indictment was quashed without the consent of the counsel for the Crown ; and in the case of Swan and Jefferys, it was holden by Mr Justice Foster that such consent was not necessary. (Tbid., 333).

Coke, in his com merits on the 5 Eliz., c. 9, defines perjury as "a crime committed, when a lawful oath is ministered by any that hath authority, to, any person, in any judicial proceeding, who sweareth absolutely and fulJy in a matter material to the issue, or cause in question, by their own act, or by the subordination, of others" (3 Inst., 164). And, in reference to the words " materia] to the issue," he proceeds to. say (Ibid., 166); " For if it be not material, then, though it be false, yet it is no perjury, because it concerneth not the point in suit, and therefore, in effect, it is extra-judicial. this

act giveth remedy to the party grieve d,, and if the deposition be not materi al* he caanot he grieved thereby."

It was not sufficient to set ant in* the indiotment that the alleged was committed in a judicial proceeding,, hut the issue or point of inquiry before the Court ought to have been set out* so that the Court, on perusal, of the indictment, might be enabled to decide whether the questions and answers referred to in it were material. It is bitb justice to the counsel who prepared the indictment to say that he had no means, of knowing what the issue or point of inquiry was, as lie was not present, als the hearing of the application on the 4th of October, and there was no record or document in writing whence the information could be gleaned. Perjury, in a popular sense, might be defined as a lie confirmed by oath*. Our law has, however, given it a restricted signification, and for wise purposes. 11 can only occur when thf* question put to a witness is material tothe point of inquiry before a court.. It is for the good of society that men. should not be intimidated fiom going into courts taseek redress of grievances, or to give evidence as witnesses, through* fear of being charged, on light or in-

sufficient grounds, with the crime of'

perjury. Many a man lias been unjustly charged with perjury, v.hen his memory only was at fault, or when his apparent default arose from his neivon*" system, being upset through, the unpardonableabuse of cross-examination. A court of record has at all times, possessed, the? power of lining or imprisoning a-.person) for prevarication, even, and that power,, judiciously exercise, is sufficient to* check the carelessness and inattention.* of most witnesses while under examina tion. A person convicted of perjury was cheieby rendered infamous, and his testimony was not receivable in courts. His enemy might meet him. on the- road: and rob him of his purse-;- might cruelly beat and ill4reat him; might destroy his property before his eyes; and the man could obtain no redress, as. no court would act on his evidence* Perjury is a charge very easily preferred, and. very, difficult of disproof.. The materiality of questions to the-, issue or point of inquiry before at court,, has ever been decided by the presiding, judge;, and not by -the jury-.. In ancient times, as already-mentioned, juries werewitnesses, only, bound by oatn to., make a true statement respecting a< point of fact submitted, to them by the judge. They had no.power to examinewitnesses, much,less to.give an opinion, touching the relation, of an., answer- to question, to. the issue or point of inquiry under consideration. The only case 1 have been able to find thaj&„coanfcenances. the opinion at all is, that of Reg. v.. Savey, 3, Carrington and Kirwan, p.. 26„ That was a nisi prius case- tiied. before Lord Campbell, in which the.: reporter says,.— u Semble that whether the evidence be material or not is a, question to be left to. the jury." This dictum so, contrary to the principles, and practice of law that it is probablethe reporter mistook what the learned. judge said. It would be somewhat novel to call upon a jury to. say what, questions were proper to. be put in an; equity proceeding. Many of them couhl hardly be expected to know what, a writ of injunction meant.. In. Man ton's case, reported in Palmer's. K.. 8. Reports, 383, the indictment was. quashed on the ground of immateriality. in that case, the issue was, whether at certain person was of sound memory at the time of his decease, A witness swore falsely that the memory of thedeoeased was unsound five days before his death. As the issue related to 1 hetime of his death and not to the fifth, day preceding that time, the court held that perjury had been assigned upon an immaterial matter. In Custodes v. Givinn (Styles. 336), Ro.lt, G.J., said ; —" For a false oath made made before us, not touching the matter in question between the parties, an indictment of perjury lies not." And in Reg. v. Gibr bons (8 Jur, N.S. 159), wherein the foregoing cases are oited, the question of materiality was decided by the judges, and not the slightest hint waa thrown o't.t that the decision of thequestion appertained to the province of Ihe jury before which the accused, had been tried. (To be continued.)