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The Spike: or, Victoria College Review, October 1908

[In The Court of Appeal.] — Brook v Macdougall and Hogben

page 65

[In The Court of Appeal.]

Brook v Macdougall and Hogben

[Our reporter was unfortunately unable to be present at the Sitting, and the Law Reports are not yet to hand. In view, however, of the importance of the case to the College at large we give the bare findings.]

The facts of the case are as follows:—The appellant, James Brook, representing the constituted authority of Victoria College, prosecuted the respondents, students, for unlawfully and without license organising meetings calculated to provoke a breach of the peace. In the lower Court the defendants were acquitted, and the application for an order to bind them to keep the peace refused on the ground that the statute creating the offence had been lost; that its existence depended on hearsay evidence; and that the constituted authority ought to have recognised that the meetings in question were pro bono publico, and not unduly riotous. From this decision the present appeal was made.

Held—
  • Per Curiam, (1)—Ignorantia juris non excusat, affirming Doyle v. Brook (2).
  • Per Richmond and Adamson, PP.—Judicial notice cannot be taken of documents which are not in existence and of which no certified or other copy can be found (3).
  • Per Mackenzie, P.—That opportunity of accused to address the Court should never be refused (4), overruling McArthur, S.M. (5).
  • Semble.—That any meeting of students during lecture hours is calculated to create a breach of the peace; that any Secretary of any College Club is, virtute officii, a disorderly person, and any student meeting held by night riotous and tumultuous.

The appeal was upheld and respondents ordered to frame a Code of Rules to submit to the next sitting of the Court.

(1)von Zedlitz, Easterfield, Kirk, Hunter, PP.
(2)1907, C.C. P. 22.
(3)von Zedlitz, P., dissented.
(4)Magna Charta (Justice should never be denied).
(5)Karori Borough v Mackenzie (not reported).