NEW SOUTH WALES.

West Coast Times, Issue 161, 24 March 1866, Page 2

NEW SOUTH WALES.

The Sydney Murder Case.— The Quekn v. Bzrtrani). — In the Supreme Court, Sydney, on Monday tho 12th instant, before their Honors Sir Alfred Stephen, Chief Justice, Mv Justice Hargrave, and Mr Justice Faucett, Mr Salomons, instructed by Mr Roberts, moved for a rule nisi, calling upon the Law Officers of the Crown to show cause why a new trial of the above case should not bo granted or judgment arrested. Tho present application was made on the authority— as to the power of the Court to grant a new trial in a case of felony— of the Queen v. Scaife, 17 and 18 Q. B. The rule nisi s was asked for upon several grounds, tho substantial points raised being the following : — That tho evidence had been improperly tak«m— tho testimony of the witnesses at the first trial having been read from the Judge's notes, and such witnesses questioned on oath as to its correctness; that counsel for the Crown hnd been allowed to reply, although evidence had not been called for the prisoner ; and that the prisoner had been prejudiced by the allowance of such reply, having reason to believe that .there would have been no such allowance ; that the points raised for the prisoner had not yet been argued before tho four Judges; and that the jury to whom the prisoner's case had been committed in the first j instance had been improperly discharged without verdict, no legal necessity for such discharge having arisen. Iho learnod gentleman entered into an elaborate argument upon the above points, and upon the various collateral questions which aro<e out of them. He also cited, and commented upon, a great number of cases. His argument lasted from the timo the Court opened — at a little after 10 a.m. — until about ten minutes to 4 p.m. The Court (after * consultation) granted a rule nisi upon four grouuds. 1. That the evidence of some of the witnesses had been read to the jury from the notes of the Chief Justice at the first trial. 2. That prisoner's counsel had been led to abstain from calling witnesses, by reason of the Chief Justice having, iv effect, refused a reply; to counsel for the Crown at the first trial, although he granted it at tho second. 3. That the points reserved in tho special case had not been argued

before th,e four Judges. 4. That ,the jury first empannelled for tho trial, of tlie prisoner had, under the circuit stances, been improperly discharged without verdict by the Chief Justice. The rule nisi granted upon tho fourth point was for an arrest of judgment, and the discbarge of the prisoner. The other points were for a new trial. In reference to the first of these points the Chief Justico stated that the course, which had now been objected to was taken at the express instance of the prisoner's counsel, and by the concur 1 * rence of i tlio prisoner 1 himself, so thai there" had been a gross breach of faith somewhere in the raising of this point. His Honor also cited the cases upon the authority of which he had consented to the course iv question. As to the force of the objection in its present sbape, however, ho expressed no decided opinion, Ab to the second, point,, hia Honor denied that he had ever, in ftictj refused to aiW counsel for the Crown to reply., , „-,., On the following Thursday, before their, Honors the argument on the ruj^ njsj in this case for eunew trialj ofe an attest of judgttient, lasted the whole day without being concluded. Mr Salomons, instructed by Mr Eoberts, appeared in support of the rule ; and the Attorney-General and th(J Solicitor General, assisted by the Crown Solicitor in support of the conviction. The question first raised and argued was the preliminary orie— whether or not the Court had jurisdiction to grant ,a neyi trial irt cases pf felony?' Their Hbhorfl \jrere ivna,niniously of opinion tliat they had power to do this in cases where any material irregularity bad occurred. The points raised by the rule nisi were then gone into, and argument was heard upon the first of these points,— That the Chief Justice had improperly read to the jury at the second trial his notes of the evidence of some of the witnesses at the first trial. The Chief Justice ana Mr Justice Fawcett were o^ opinion that as this had been done at the instaneo and by the consent of ihe prisoner himself, the lattor was estopped from. raising the present objection, this departure .from, the. .ordinary practice being one whicli could, by the cori" sent of the prisoner and the Crown, be permitted. ' Mr Justice Hargrave and Mr Justice Chceke, on the other band, were of opinion that this was a departure from law which no consent on the part of the prisoner would justify ; consequently that there had been a mistrial and that a nc'w trial ought to bo. al?o»ved. The Judges being thus equally c.i\idedupon this point, and there being therefore no decision upon it the result was that the new trial was, so far as thnt first point went, refused. The argument upon the remaining pointa will be resumed at ialf-past 10 o'clock this, (Friday) morning. , Tib " S; M;. Herald" says :—His Ex, celleucy the Governor has been pleased to transmit to the Sheriff authority to defer the execution of Bertrand's sentence until the 26th instant. It is supposed that the purpose of the respite has been to give the Judges time to duly weigh the arguinehts which are being brought forward by Bertraud's counsel against his conviction.