West Coast Times. SATURDAY, JULY 28, 1866.

West Coast Times, Issue 264, 28 July 1866, Page 2

West Coast Times. SATURDAY, JULY 28, 1866.

We have hitherto refrained from commrmting on the proceedings of the Supreme Couit during its second criminal session in Westland, from considerations of courtesy to the presiding Judge, and from larger considerations of public propriety. The calendar is now, however, happily, all but exhausted, aud it is hoped that I*the1 * the last case will be disposed of to day. We feel that there is no longer occasion for reticence, and we purpose to review the action of a tribunal which fills the most important functions in the administration of justice, and exercises an authority practically responsible to do controlling power but that of a legitimately expressed public opinion. As immediately representing the Crown, the two officers of this Court are the Judge and the Public Prosecutor.

To Mr Duncan it is impossible to award too high .praiss for the impartiality and icmperatencss, combined with firmness, in guarding- the interests of public justice, which he displays in every case which he conducts in Court. We have beforo paid him this tribute, so justly due ; and we pay it him again. But there are points in the.'couvse pursued by the Crown Prosecutor, during the present Sessions, which appear to us to be most anomalous ; and ifc. is desirable that they should be referred' to., Every Englishman should understand the machinery of justice, in its principles and its details : and. every one has an interest in reducing that machinery to the simplest possible form. In the" ( various Colonies of Australasia it differs materially. By the English law the Grand Jury intervenes as a secret court of investigation between an accused person and a public prosecutor, its duty is to determine whether a man *j charged with a crime shall be called! upon in open court to answer the accusation, and defend his innocence. In innumerable instances a magistrate sends cases to the superior courts for trial, because-^ properly shrinks from the . responsibility of acquitting an accused person on his own individual judgment. Such cases arp " sent before a jury." But, following the committal, is the enquiry— whether the primd facie ease for the prosecution is sufficiently strong to justify a formal trial? After a very active agitation iv the home country, it appears to have been finally decided that the Grand Jury is an institution which has a useful part to play in the administration of justice, and which should, on that account, be maintained. " ,

In the whole of the Australian colonies, the Eaglish system has, however, been so far departed from in form, though not in principle, that the functious of the Grand Jury are vested in the Attorney-General. It is that public functionary who stands between the petty Court that commits and the superior Court that tries. The* Attorney-General determines whether the depositions on which the committal has taken place establish such a sufficient prima facie ease of guilt as will warrant the public trial ; and his declining to prosecuto is tantamount to the finding of " uo true bill" by an ordinary Grand Jury.

In Now Zealand, the Grand Jury exists in tho same form as in England, and is the tribunal to determine whe-. ther a criminal indictment shall bo sent into open Court or not — in other -words, whether an accused person shall be called on to -plead. But according to Mr Duncan's pract'ee. there would appear to to be two Grand Juries in New Zealand, exercising not a concurrent but an independent jurisdiction. The Crown Prosecutor has in some instances de-

clincd to send before^ the Grand Jury cases in which committals have been made by the Magistrates, and thus constituted himself tho Grand Jury of the colony to the derogation of their functions as assigned to them by law. This is certainly an anomalous proceeding that requires some explanation. We know not how far tho irregularity — for such we must hold it to be— may effect the validity of recent judicial proceedings. But it appears to us that where a Grand Jury according- to the English system exists, the Crown Prosecutor has no legal power whatever to detcrnuuc on his own authority whether or uot a true bill stands agaiust a prisoner. If ho hars all we can say is, that the Grand Jury is a most useless institution, and that a vcr,y vexatious and unnecessary tax is levied upon the busiuess men who are^ summoned to », serve upon it.

The common understanding is that every committal made by a Magistrate shall be reviewed by the Grand Jury; and it is contrary to that understanding that the Crown Prosecutor shall exorcise the right of quashing a committal without the concurrence of the tribunal of investigation, to which, has been especially assigned by law the task of taking and weighing primA facie evidence.