J. C.* 1867 June 27, 28. THE ATTORNEY-GENERAL OF OUR LADY THE QUEEN FOR THE COLONY OF NEW APPELLANT; AND HENRY LOUIS BERTRAND RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. It is the inherent prerogative right, and, on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction in all cases, criminal as well as civil, arising in the Colonies, from which an appeal lies, and where, either by the terms of a Charter or Statute, the power of the Crown has not been parted with, with a view not only to ensure, as far as may be, the due administration of justice in an individual case, but also to preserve generally the due course of procedure. The exercise of this branch of the prerogative in criminal cases is to be cautiously admitted, and is regulated by consideration of circumstances and consequences. Leave to appeal will only be granted in special circumstances, such as where a case raises questions of great and general importance in the administration of justice, when it will be proper for the Judicial Committee to advise the allowance of such an appeal. A Prisoner was tried by the Court in New South Wales for Felony, the jury not agreeing, were discharged, and a fresh trial had. On the second trial, at the same sittings, before another jury, some of the witnesses having been re-sworn, the evidence given by them at the first trial was read over to them from the Judge's notes, liberty being given both to the prosecution and to the Prisoner to examine and cross-examine: Held, on appeal from a judgment of the Supreme Court at New South Wales granting, in such circumstances, a new trial: First, that the course adopted by the Judge at the fresh trial was irregular, and could not be cured even by the consent of the Prisoner: and Secondly, that according to the English law prevailing in New South Wales, the Supreme Court had no power to grant a new trial in a case of Felony. The case of The Queen v. Scaife (1), in which a new trial was granted, after conviction for Felony, by the Court of Queen's Bench, examined and not followed. THIS (1) 17 Q. B. Rep. 238. the prosecution of the Attorney-General for the Colony, against the Respondent, Bertrand, under the following circumstances : On the 18th of December, 1865, an information (1) was filed in the Supreme Court of New South Wales, at the sittings held at Darlinghurst, in Sydney, in that Colony, as a Court of Oyer and Terminer and Goal delivery, by Her Majesty's Attorney-General for the Colony, charging that the Respondent, on the 6th of October, 1865, at Saint Leonard's, in the Colony aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder one Henry Kinder. To this information the Prisoner pleaded not guilty, and issue was joined thereon. The Prisoner was tried on the 14th, 15th, and 16th days of February, 1866, before the Chief Justice, Sir Alfred Stephen, and a jury. The evidence for the Crown having been taken, the Counsel for the Prisoner addressed the jury on his behalf, and no witnesses being called for the defence, the jury was charged by the Chief Justice and retired to consider their verdict, and after having been locked up for twenty-one hours and upwards, returned into Court, and stated that they had not agreed upon their verdict, and were not at any time likely to agree thereon; whereupon, having been then kept, without at any time separating, for the space of three days and three nights and upwards, and stating that they were exhausted, and that some of them were ill, the Chief Justice discharged them from giving any verdict, and remanded the Prisoner to his former custody. On the 22nd of the same month of February, and at the same sittings of the Court, the Prisoner was again brought for trial before the Court, and was then and there tried before the Chief Justice and another jury, when that jury found a verdict of guilty, and the Court sentenced the Prisoner to death. At the second trial the Chief Justice allowed the evidence of several of the witnesses who had been called as witnesses for the Crown at the first trial, to be taken in the following manner: each of such witnesses was placed in the witness box, and was then sworn in the usual manner; the Chief Justice then (1) By the law prevailing in New South Wales, an information at the instance of the Attorney-General of that Colony stands in the place of an J. C. 1867 REG. v. BERTRAND. informed the witness that he intended to read over the notes which he (the Chief Justice) had taken of the evidence given by the witnesses at the former trial, and that if the witness wished to add anything to the evidence he had then given, or to alter or correct it in any way, he could do so. The Chief Justice also then informed the Counsel for the Prisoner and the Counsel for the Crown, that if either of them wished to ask the witness any questions he could do so. No specific or definite consent was given by the Prisoner or his Counsel as to the proposed course being adopted, or as to any specific witness being thus examined; but no objection was then made by the Prisoner or his Counsel, and they were considered by the Court to have assented to the course proposed. On the first trial, at the close of the defence, the Counsel prosecuting for the Crown claimed to reply, but upon objection being taken, the claim, at the suggestion of the Chief Justice, was withdrawn. But at the second trial, at the close of the defence, the Counsel prosecuting for the Crown (and acting for the AttorneyGeneral), claimed and was allowed by the Chief Justice to reply, the Prisoner's Counsel having, as was alleged, been induced by the withdrawal on the former occasion of the claim to reply, to suppose that if he did not call witnesses no reply would be allowed, abstained from calling witnesses. On the 12th of March, 1866, the Supreme Court of New South Wales sitting in Banco, upon the motion of the Counsel for the Prisoner, granted a rule nisi calling upon the Attorney-General to shew cause why the verdict of guilty should not be set aside, and why a new trial of the issue should not be had, or why the judgment should not be arrested on the ground (inter alia) that the evidence of some of the witnesses, called on behalf of the Crown upon the trial, had been read to the jury from the notes taken by the Chief Justice at the former trial, and that a reply had been permitted, contrary to the practice of the Court, by which the Prisoner had been prejudiced in his defence. The rule nisi came on for argument before the Court in Banco, on the 17th of March, 1866, when, upon hearing Counsel on the part of the Attorney-General, and also upon the part of the Respondent, the Judges of the Court sitting in Banco gave judgment. Mr. Justice Hargrave and Mr. Justice Cheeke gave judgment to the effect, that at the second trial there had been a substantial miscarriage of justice, and that there ought to be a new trial. They were of opinion, that the jurisdiction of the Supreme Court of New South Wales being declared by the 9 Geo. 4, c. 83, s. 3, to be co-extensive in all civil and criminal matters with the jurisdiction of the Court of Queen's Bench at Westminster, and that Court having, in the recent case of The Queen v. Scaife (1), upon grounds analogous to the present case, granted a new trial, it was competent for the Supreme Court to do the like : as the mode adopted by the Chief Justice in submitting the evidence to the jury on the second trial was irregular, and amounted to such a miscarriage of justice as entitled the prisoner to a new trial. The Chief Justice was of opinion that, admitting the authority of the decision in The Queen v. Scaife, and the analogy of the Supreme Court to the Court of Queen's Bench at Westminster, yet that there had been no such miscarriage of justice as would entitle the Prisoner to a new trial, inasmuch as the evidence alleged to have been irregular had been so taken at the instance of the Prisoner personally, and upon the application of his Counsel, and as there was no ground whatever for supposing that the Prisoner had been injuriously affected thereby, therefore, that the rule asked for ought to be refused. Mr. Justice Faucett gave judgment in accordance with the opinion of the Chief Justice; but subsequently withdrew his judgment in order that there might be an appeal to Her Majesty in Council, and the verdict so found by the jury, upon the trial of the Prisoner upon the 22nd of February, 1866, was thereupon set aside and a new trial granted. A petition for special leave to appeal against this judgment was presented by the Attorney-General of the Colony to Her Majesty in Council. The petition was heard ex parte. The Attorney-General (Sir R. Palmer, Q.C.) and Sir Hugh Cairns, Q.C., for the Petitioner: By the imperial Statute, 9 Geo. 4, c. 83, ss. 3, 4, the constitu* Present:-LORD WENSLEYDALE, SIR JOHN TAYLOR COLERIDGE, and SIR EDWARD VAUGHAN WILLIAMS. (1) 17 Q. B. Rep. 238. J. C. 1867 REG. v. BERTRAND. 1866 June 27.* J. C. 1867 REG. v. BERTRAND. tion of the Supreme Court in New South Wales is defined and declared to be a Court of Record, and to possess the same jurisdiction and powers as the Courts of King's Bench, Common Pleas, and Exchequer, in England. The English law of procedure, therefore, is the rule to govern the case. By that law no new trial lies in a case of Felony. It is true that in The Queen v. Scaife (1), a new trial, where there had been a conviction for Felony, was granted by the Court of Queen's Bench, but we submit that that case, when examined, cannot be upheld, and is contrary to law. [SIR EDWARD VAUGHAN WILLIAMS:-There the record was brought up and became a Court of Queen's Bench record. Here it is an information at the instance of the Attorney-General of the Colony, and the question is, whether there is the same means of making it a Crown Office record and removing it.] The course adopted by the the Chief Justice at the second trial, in reading the evidence of the witnesses taken at the first trial, instead of examining them afresh, as in a case of a new trial, where the former jury has been discharged on the ground of illness of one of the jurors, or otherwise, without giving a verdict, as in Rex v. Edwards (2), Kinlock's Case (3), even if it constituted such an irregularity as to have occasioned a miscarriage of justice, yet the remedy in a Criminal suit is not by a new trial; that is not the practice here, and cannot be in the Colony of New South Wales. The Crown, by virtue of its prerogative, can admit an appeal from a Colonial Court, even in a criminal matter, unless it has parted with that right by Act of Parliament, or, as in the case of the Supreme Courts in the East Indies, by the Charter of Justice creating the Courts: The Queen v. Eduljee Byramjee (4); The Queen v. Alloo Paroo (5); The Queen v. Joykissen Mookerjee (6); The Falkland Islands Company v. The Queen (7). In the latter case it is laid down by Lord Kingsdown, that "it may be assumed that the Queen has authority by virtue of the prerogative to review the decisions of all Colonial Courts, whether the proceedings be of a civil or criminal character, unless Her Majesty has parted with (1) 17 Q. B. Rep. 238. (2) 3 Camp. 208; S. C. 4 Taunt. 309. (4) 5 Moore's P. C. Cases, 276. (6) 1 Moore's P. C. Cases (N.S.) 272. (7) 1 Moore's P. C. Cases (N.S.) 299. |