CAN A SECOND TRIAL FOR MURDER TAKE PEACE ?

Hawke's Bay Weekly Times, Volume 1, Issue 39, 30 September 1867, Page 243

CAN A SECOND TRIAL FOR MURDER TAKE PEACE ?

{Prom the-Home News/ July 26th.) - -

XN the ;Judi'cal : 'ComTriittee’ of--the Privy Sir K/ T. Mndei^r> : ' , Williatnßj' i arid i Sir J..;.;T.., Cpleridge—judgemen twas-giveninthecase.ofi'tlieQ.ueen v v’®®?knihd;” a verj important ■ questionwasiraised Vs ;to the, mode' of taking evidence on' a.'new trial for murder. Other points of considerable 'moment- were involved in; the. investigation of the case, which occupied two days in hearing. The circumstances of the case may be briefly stated as follows.:—The prisoner was charged with the murdef-bfone Henry Kinder in the Dec.' of 1865, and tried at Darlinghurst, iu Sydney,’ht r the, assize next ensuing. The atrial lasted for’ three days, and jury were discharged without giving a verdict, having deen locked up for more than twenty hours. -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 by either 'side. : In - the March 0fT866 a rule was' on the application ‘ off. the prisoner, by the Supreme Court of - New South Wales, callings on thet Attorney- General to show cause why the verdict of “ G-uiltyl’ found on the second trial should not ;be set aside and a v new trial granted, .on the. ground that the evidence 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 icourt,.by which the prisoner has been prejudiced in bis 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 bn the grounds stated, and that, therefore, thereought to be a new trial. . .The Chief Justice, on the other hand, gave judgment to the effect that as the evidence had been taken on the application of the prisoner ho had not been ii'juriously affected, and that, therefore, the' rule, oiight to be, refused. Mr Justice Fawcett cbncurred with the Chief Justice, hut withdrew his judgment iu order that there might be an appeal to her Majesty in Council, and the verdict found by the subject of the appeal—was permitted to be set aside and a npw trial was provisionally granted. The questions submitted to their, lordships iu the appeal -were two:—firstly, could there be anew trial .for the felony? and, secondly, whether, the evidence on the second trial properly received? As we have i stated, the discussion of the points raised occupied two',days, and the criminal law hearing on the subjcpt was exhaustively discussed . by.. the. learned lords and the counsel for, the respective parties concerned.—Sir J. T- Coleridge delivered the judgment.cf the cpurt, 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 New South Wales must he affirrned.... The,appeal must be sustained, but ,without, costs,!and the order for the new trial reversed.