NEW SOUTH WALES.

West Coast Times, Issue 162, 26 March 1866, Page 2

NEW SOUTH WALES.

The Sydney Murder CABE.--TirE Quebn v. Bertraxd. — In the Supreme Court, Sydney, on Monday the 12th instant, before their Honors Sir Alfred Stephen, Chief Justice, Mr Justice Hargravo, and Mr Justico 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 ease should not be granted or judgment arrested. The present application was mado on the authority — as to the power of the Court to grant a new trial in a caso of felony— of the Queen v. Seaife, 17 and 18 Q,. B. The rule nisi was asked for upon several grounds, the substantial points raised being tho following : — Vhat tho evidence had been improperly tak«*n— 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; thnt counsel for the , Crown had 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 fir9t instanco had been improperly discharged without verdict, no legal necessity for such discharge having arisen. 'I he learned gentleman entered into an elaborate argument upon the above points, and upon the various collateral questions which arose out of thorn. He also cited, and commented upon, a great number of eases. 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 grounds. 1 . That the evidence of some of tho 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 Justico having, in offeot, 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 cose had not been argued

lefbre the foUr Ridges. 4', Thtii 'th& ur'y first cmpannclled for the trial of he prisoner had, under tho circumtances, been improperly discharged vithout verdict by the Chief Justice. Cho rule nisi granted upon the fourth >oint was for ffo arrest of judgment, md tho discharge of the prisoner. Tho )ther points were for a new trial. Iv •eference to the first of these points the 3iiic£ Justice stated that tho course" which had riow been objected to was taken at the express instance of^the, prisoner's counsel, and by the concurrence of tho prisoner himself, so ttiaj; thero had been a gross breach of faith Hoinewh'ere in the raising of this point. His Honor also cited the cases upon the authority of which ho had consented to the courso in question. As to tho force of the objection in its present shape, however, he expressed no decided opinion. As to the second point, his Honor denied that ho had ever, in fact, refused to allow counsel for the Crown tbteriU. ( . . . On ttib" following I'hursddy, before tneir Honors the argument on tho rule nisi in this case for a new trial, or aii arrest of judgment, lasted the whole, day, witnout being concluded! Mr Salomons, • instructed by Mr llober^Sj &p : peared lit (Jupport of tKe rule • and tho Attorney-General and the Solicitor General, assisted by the Crown Solici- , tor in support of the conviction. The question first raised and argued was the preliminary one — whether or not tho Court had jurisdiction to grant a new trial in cases of felony ? Their Honors were unanimously of opinion that they had povVer to do this in cases wlierj? any material irregularity had occurred; The pdi.iiti? raised by the rule .nis,} w.erej 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 and Mr Justioe Fawcett were of opinion that as, this, had beeji done :.<$ the instance ahd by the consent of ilie prisoner himself, the latter was estopped from raising the present objection, this departure from 4he ordinary practice being one which could, by the consent of the prisoner and the Crown, be permitted. Mr Justice Hargrave and Mr Justice Cheeko, on tho other hand, were of opinion that this was a departure from law which no consent on the part of the prisoner would justify; con-» sequently that there had been a mistrial and that a neV trial ought to be allbwed. The Judges being thus equally divided Upon this point, and there being therefore no decision upon it the result was that the new trial was, so far as that first point went, refused. The argument upou the remaining points will be resumed at talf-past 10 o'clock this (Friday) morning. The " S. M. Herald" says :— His Excellenoy 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 1 Had lieen td give tho Judges tirrie to 1 duly weigh the arguments -which 1 fiVe being brought forward by Bertrand's counsel against his conviction.