1898 NATIONAL TRUSTEES EXECUTORS

AND

AGENCY COMPANY

OF

AUSTRALASIA
LIMITED

V.

DOYLE.

A'Beckett, J.

I direct the costs of all parties to be taxed, those of the trustees as between solicitor and client, and paid out of the estate of the testatrix.

Solicitor for plaintiff: B. P. B. Rymer.

Solicitors for defendants Doyle and O'Sullivan: Reid & Matthews.

Solicitors for defendant Cole: Snowball & Kaufmann.

W. H. M.

1899 January 18. Hood, J.

[IN CHAMBERS.] BEVAN v. MOORE.

Order to review “ Important question or principle of law”—Justices Acts 1890 (No. 1105), s. 141; 1898 (No. 1584), 8. 2.

The words in sec. 2 of the Justices Act 1898, "important question or principle of law," mean some undecided public question of law or point of importance upon which authorities differ.

Field Barrett applied exparte on behalf of Alfred Edward Moore for an order nisi calling upon William Bevan to show cause why a decision of justices in petty sessions at St. Kilda should not be reviewed.

Bevan issued a complaint against Moore in the St. Kilda Court for the recovery of £1 for cab hire. At the hearing of the complaint, on 13th January 1899, it was contended by the defendant that Bevan, being only an agent for the owner of the cab, was not entitled to recover in his own name the amount sued for. The justices overruled the objection, and made an order in complainant's favour for the amount claimed.

HOOD, J. Assuming for the purposes of this case that the justices were in error in the decision which they gave, and that they made a mistake in law in deciding that the complainant Bevan was entitled to recover, the applicant is then met with a contention based upon sec. 2 of the Justices Act 1898 (No. 1584). This section is a prohibitive one, and states that "no order to review any order of any court of petty sessions or

justices made in any complaint for any civil debt recoverable
summarily shall be granted" except under certain circumstances.
The first circumstance is that the amount involved exceeds 5l.
That does not apply here. The matter involved is only 17.
The next is-" Unless it appears
. that the order
complained of ought to be reviewed on the ground that it
involved or decided some important question or principle of
law." It is contended that in this case an important question
of law is involved, because the magistrates have virtually
decided that an agent, known as such, can sue for a debt due to
his principal. If that is the meaning of the section as contended
here, and that was the decision of the magistrates, the applicant
would be entitled to an order to review, but I think that such a
construction would be totally destructive of the section. Every
point of law is of importance to the litigant to have the law
properly decided, so that if the contention is correct that the
section applies whenever any question of law is involved, it
would destroy the operation of the section, because it would
apply to every case in which an order nisi could be granted. I
think the intention of the Legislature was that in cases under
51. a person must put up with a wrong decision, unless it appears
that some important public matter of law is involved, some
matter of general application, and it is not simply a case where
the magistrates have erred against some well-known principle
of law. If the magistrates settled an undecided question of law,
then the applicant might come here, but if they made a mistake
as to a well-known principle, the person aggrieved must put up
with it.

There is another reason why I refuse this application, and that is that if I refuse it now there is an appeal from my decision, but if I grant the order nisi I shall have to decide the matter when it comes on for hearing, and then there will be no appeal. I refuse the application on the ground of that section.

Solicitor for applicant: Field Barrett.

Application refused.

1899

BEVAN

v.

MOORE.

Hood, J.

R. H. C.

F.C.

1899 February 2.

REGINA v. McDERMOTT.

Criminal law-Evidence-Perjury-Finding of jury at former trial, whether admissible in defence at subsequent trial.

At a trial for housebreaking and stealing prisoner swore an alibi and the jury acquitted him. On a presentment for perjury with regard to this alibi,

Held, that the jury in the trial for perjury were properly directed that they had no concern with the proceedings at the trial where the prisoner was acquitted, and therefore the fact that the previous jury might have believed the plea of alibi was no defence in the trial for perjury.

SPECIAL CASE stated by A'Beckett, J.

The special case was as follows:—

Simon McDermott was tried at General Sessions on the charge of breaking into a dwelling and stealing therefrom, at Carrum, on the 5th of November 1897. His defence was an alibi that he was not at or near Carrum on the day in question. He supported it by his own evidence and by that of two other witnesses, and was acquitted.

On the 21st and 22nd November 1898, he was tried before me on a presentment charging him with having committed perjury at the trial preceding that at which he was acquitted, and at which the jury disagreed, the perjury assigned being statements in reference to his absence from Carrum on the day in question, substantially the same as those which he made at the trial at which he was acquitted.

At the trial before me the evidence for the prosecution was substantially the same as that given at the trial at which he was acquitted, and the evidence for the defence was substantially the same, except that the prisoner did not himself give evidence. In his address to the jury, counsel for the prisoner insisted that as he had been acquitted on the charge of robbery the jury must have believed him, and for that reason another jury could not properly bring in a verdict of guilty, which would be in effect a reversal of a previous decision by a competent tribunal. He also commented on the evidence to show that there was not enough to substantiate the charge of perjury, even if a jury had to consider and deal with it for the first time.

The Crown Prosecutor urged the jury to consider the case unaffected by what the jury had determined on the trial for robbery, and commented on the evidence.

I made no comments on the evidence, but told the jury that it was their duty to decide the case on the evidence before them, and if they had no reasonable doubt on that evidence that the accused had committed perjury they should convict him, undeterred by any view which they might suppose to have been formed by the jury which acquitted him.

After the jury had retired, counsel for the prisoner submitted that my charge to the jury was erroneous, on the following grounds :

(a) That I ought not to have told the jury that they had no concern with the proceedings at the trial at which the prisoner had been acquitted.

(b) That I ought to have told them that as the facts in evidence were the same in both cases, the Crown was bound by the result of the former trial, and that they should acquit the prisoner; or

(c) That I ought to have withdrawn the case from the jury, having
regard to the former acquittal, the record of which was in evidence.

I refused to recall the jury, and they convicted the prisoner.
The questions of law reserved by me for the consideration and determination
of the Judges of the Supreme Court are-

1. Should I have withdrawn the case from the jury?

2. Was my charge to the jury erroneous on any of the above grounds?
3. Could the prisoner be rightly convicted, notwithstanding the prior
acquittal on the charge of stealing?

THOS. A'BECKETT.

Paul for the prisoner-The question on which the perjury is charged has already been proved in the prisoner's favour. He pleaded an alibi and the jury believed him. Now on this same state of facts it was not for a Supreme Court jury to be at liberty to reverse the decision of another competent tribunal. He cited Bacon's Abridgement, iii., 255; R. v. Machen (a).

Finlayson for the Crown-Stephen's History of Criminal Law, vol. i., p. 297, shows that in this case the only pleas open to the prisoner are autrefois acquit or autrefois convict. But of course the pleas are only applicable in a second presentment on the same charge, not in a case where the crimes are housebreaking and perjury respectively. The doctrine contended for is absolutely new.

Paul in reply.

WILLIAMS, J., delivered the judgment of the Court [WILLIAMS, HOLROYD, and A’BECKETT, JJ.] This is a special case, on points reserved by A'Beckett, J. The prisoner was presented on a charge of perjury, when the prisoner pleaded that he was not guilty of the charge. It appeared that the prisoner had, at a previous date, been proceeded against at the Court of General Sessions on a charge of housebreaking and stealing at Carrum. He was, I should say, tried twice on this charge. On the first occasion the jury disagreed; on the second occasion he pleaded not guilty, and went into the box, and to prove an alibi swore that he was not at or near Carrum on the day of the alleged breaking and stealing. The jury then acquitted the prisoner. He was then tried before Mr. Justice A'Beckett for perjury, the perjury assigned being as to his (a) [1849] 14 Q.B. 74.

F.C.

1899

REGINA

v.

MCDERMOTT.

Williams, J.

evidence of his alibi at the first of the two former trials, the
one at which the jury disagreed. Now, Mr. Paul has argued
before this Court in support of the grounds which he says
rendered Mr. Justice A'Beckett's charge to the jury erroneous in
law. These grounds are-(His Honor read the grounds).
Thereupon the presiding Judge reserved for our consideration
and determination certain questions of law-(His Honor read
the questions). We are of opinion that a fallacy is the basis
which supports, or rather underlies, Mr. Paul's argument. He
assumes that because the jury found a verdict of acquittal
of the prisoner on the previous charge, they necessarily
found it on the fact that the alibi set up by the
prisoner was proved and true. That seems to me a fallacy.
And if that argument is fallacious, then the whole of the
contention put forward on behalf of the prisoner falls to the
ground. The reason that the argument is fallacious is this:-
All that the jury did was to find that the prisoner was not
guilty, and it is consistent with that that they did so because
they did not believe the evidence presented by the Crown in
favour of a conviction. To support Mr. Paul's argument we
must assume-we must start with the assumption-that the
ground of the jury's decision was necessarily that the evidence
as to the alibi showed it was a true plea. But there is nothing
whatever to show that the jury found that.
would be properly told on this trial for perjury that they had
nothing to do with the determination of the jury on the
previous trial, and therefore we think that the prisoner could be
rightly convicted. Even in placing the case in this aspect we
are giving the most favourable position to the prisoner, for, as
the Crown Prosecutor has properly pointed out, the only pleas
which in a case like this could assist the prisoner would be
"autrefois acquit " or " autrefois convict," and neither of these
pleas could be pleaded here. The doctrine propounded is one
entirely novel to us. The conviction will be affirmed.

That being so, they

Solicitor for the Crown: Guinness, Crown Solicitor.
Solicitors for the prisoner: Ridgeway & Irwin.

A. F. M.