NOTES ON THE ADMINISTRATION OF JUSTICE IN NEW ZEALAND.

New Zealand Times, Volume XXXIII, Issue 5340, 9 May 1878, Page 2

NOTES ON THE ADMINISTRATION OF JUSTICE IN NEW ZEALAND.

(COMMUNICATED.) Though treading perchance on delicate 1 ground—ground generally not trodden by,, journalistic, feet,—it may prove of interest to; many to hear what can be said on the subject included in the heading of .this comrmmicatidh by one who ; has had many opportunities of observing the manner in which’the laws are administered in the different parts ’ of. the . : colony, through, a rather varied career; , I am writing only as a layman to laymen of ad- : ministration from the people’s point of view ; citing instances of singular decisions given by administrators,’ with the hope ;of'obtaining, through discussion, a" greater confidence in the minds of the colonists as to the purity of some of our Courts; thereotitude of which has been so. ’ Severely impugned. There is a very widespread feeling that the administration of our laws depends in a great measure not only.by , whom administered, but on the position of those 1 arraigned. The popular cry without doubt in some of our larger towns is,, that “ there is one law for the rich and another for the poor.’’"-' ’ ... . ‘ There appears to" the lay mind two reasons v for this widely spread and outspoken distrust. Eirst, the still partially feudal ■ and , obsolete character of our laws ; and, secondly, „ the inferior material oat of which its administrators are occasionally selected. Coming as we do from a stock whose legislation has been- - cumulative as well as progressive, we have bor- ’ rowed too many of the elements of past enactments for our own present everyday use. .Wo have inherited all that our forefathers have learned, and transplanted too much. Wo have ■outlived 5 the circumstances;under which their, laws were made,- Wo have to, found a new empire under new conditions of life. We want not 1 -to import .to these .colonies . burdens /r which are felt to be oppressive in the mother ' • land. We have entirely different foroes. for, - which to legislate'. Under a i.ew UeaVen ... and on now earth we want .a new, or

"criminal code. This is the future home of thej bulk of the people—the place where their ehil' i drenVera mainly born, and will probably did ; and hence it behoves them to insist that such revision is made. The administration of the law should be as nearly mechanical ns possible, so that the Same offence should entail the same punishment, whether committed at Invercargill or at the North Cape. Passion or preconception or foreknowledge should have naught to do with the punishment awarded. It is in the mitigating or extenuating circumstances, so often plausibly urged, that the miscarriage so often comes in. The last thing to be eradicated apparently in the human mind is prejudice. It is so rare we can see things as other, sen them. Hence’ the necessity for an almost rigid uniformity of punishment for all properly classified 1 offences. One man has no right to be awarded twelve months’ imprisonment, with hard labor, without the option of a fine, at Timaru, tor having part of a still in his possession ; and another man’s similar offence at Hokitika, or elsewhere, condoned on the payment of a fine. The' character of the man at Timaru, in this instance cited, was unimpeachable. Resident Magistrates should not have this latitude in punishment given them; they should administer and not make laws as they often do. His Honor Mr Justice Ward pointed ont some years since that a knowledge obtained of a prisoner’s antecedents in another colony should not influence the Judge in his decisions as to what punishment shall be meted out to the prisoner. It. appears to the writer that character or previous convictions should have nothing to do with the punishment awarded. It is manifestly unjust to punish a man twice for the same offence. If previous convictions are held to be necessary to guide Judges in awarding punishment, let us have (he rule laid down for their ratio of increase, and let not prisoners have'to depend, on the clemency or temper of a Judge.' A,potent causa for. the murmuring mentioned may bo found in the fact that facilities are found to escape punishment by the rich which are not within the reach of the poor. The rich man can employ men learned in the law to defend him ; the poor man cannot. The Crown Prosecutor and the Judge are popularly supposed to become the prisoner s advocate ; but too often the outcome for the prisoner is commensurate with his power to obtain extraneous. advice and (assistance. What 5 ban be more monstrous than the conduct of the Gately and Prbudfoot cases in Dunedin ? Oca man was able to pay for counsel; the other was notand this reflection oemes in,'should the poor not have a public defender as well as a public .prosecutor? The Queen is not anxious for a prisoner’s conviction if he is really, innocent. Why should a man be enabled to obtain a special jury to try his case because he has twelve guineas to pay the special jurors, and. the other has not 1 The fiction that all men are equal before the law is a fiction, and nothing more. _ Why should the Crown enter anoUe. prosequi on the disagreement of twospecial juries in Proudfoot’s case, and a third common jury be empanelled for the conviction of Heggarty ! A Case occurred in Invercargill not long since where a prisoner , was kept twelve months in Invercargill gaol •waiting for trial. Six months is frequent durance in other places ; and then perchance the police.find they have made a mistake, and the prisoner is discharged without remedy.- A rich'man can afford to i bring witnesses for his defence from a distance—the witnesses brought from Coromandel to Auckland, the other day, had to pay their ; own .expenses. If Grand Juries are still tolerated, what reason can be given why a - prisoner who is unable to find bail is debarred .either by practice or law from hearing the charge of the Judge to the Grand Jury? Simply because he cannot procure bail. The hearing of the charge should be conceded, as he may there find matter for his defence.; -Some five weeks since a man in Auckland was found with an old tomahawk and arrested, because the police considered he had no right to its possession. The man was kept in custody for several days, and then discharged because no man could be found to claim the tool of which the old man .was possessed. 'Last September or October a wtalthy New Zealand merchant was sentenced to six months’ imprisonment, with hard labor, for' - attempting to violate his own daughter, who had scarcely arrived at the age. of womanhood,, because, as the adnumstrator of the law stated, if the cul* prit were sent to the Supreme Court he would escape punishment altogether. .; Why, it may very pertinently be asked, should the magistrate punish what’the higher Court would not ? In the same locality a man received subsequently two years’ hard labor for exposing his person, and one year for a similar offence, the sentences to be cumulative, and not concurrent. Instances of this differential mode of ; judicial. administration might be multiplied; almost indefinitely, ’ affording, many people "think, a just and sufficient cause for the murmurs we can hear, and calling loudly on those to whom the government of the country is entefated'for attention, and reformation, and redress. . Those in the habit of frequenting our Resident Magistrate’s .Courts, and those . more especially whose experience is not restricted to one or more localities,-hut .embraces - the bulk of the colony, cannot fail to have noticed how often It has occurred,—and that more openly when through the performance of some other dntv the Bench is occupied by one of the “ unpaid," how the clerk of the Court or the prosecuting member of the police force has seemed to clothe himself with almost judicial functions, and . .even . t 0... guide those, to whom authority is delegated,-_not only in matters of law but degrees of punishment.’ There cannot well be conceived a more dangerous position-for a man than to .be both accuser and-judge.‘ But the case is far from infrequent where ‘ the -policeman- prosecuting occupies almost'an analogous - position. -In fact many people maintain that the police have too much power given them,'and that we are the most, police-ridden people in the Empire, It hasoften been said that■' a policeman’s promotion depends upon - the number of the convictions obtained by huni If it be true, such a.system of promotion'must strike at-the root of ail police morality,- producing. a laxity regarding the i giving of evidence which becomes habitual' in many instances,. Resident Magistrates, being recruited from - what raw.’-material the colony possesses, are often, too yielding to the opinion of , their subordinates, and to speak in no harsher mode, are too often remarkable for eccentric decisions. This results in a great measure from their not having a legal education. Our. present police -system tends to foster crime. There is less crime where there are the less policeman pro rata for the population. Take NewiPlymquth as a,notable instance, with its two or throe policemen and i its scarcity of police, business. • It is in many cases—Wellington'is doubtless an exception—the business of the force not only to arrest criminals, hat to foster crime, to ensure its maintenance in number. A. policeman. who cannot get cases-is'considered of small use to the public and the force by his superior.