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The Pamphlet Collection of Sir Robert Stout: Volume 80a

Remarks of Mr Justice Denniston on the more important provisions of 'The Supreme Court Act Amendment Bill, 1894'

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Remarks of Mr. Justice Denniston on the more Important Provisions of "The Supreme Court Act Amendment Bill, 1894."

Smith, Anthony, Sellars and Company, Ltd., Christchurch.

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Remarks of Mr. Justice Denniston on the More Important Provisions of "the Supreme Court Act Amendment Bill, 1894."

That part of the proposed Act which relates, in the words of the side note, to Judges taking Circuits in rotation, seems to me to have been drawn by some person unfamiliar with the practical working of the judicial system of the Colony. In England the Courts sit permanently in London : the Judges go on Circuit only to try Criminal cases and issues of fact. Any important questions of law arising in any trial are decided before the Courts in London. In New Zealand, in the four large centres in each of which is a resident Judge, and in which by far the greatest number of cases are necessarily heard, all such questions are determined by a single Judge, subject to appeal. Such questions are frequently argued and determined after the actual hearing. Comparatively few cavil cases are heard, and finally decided, immediately after the date of the sitting for which they are entered. As a consequence, the Civil Sittings extend for a long period. Practically the Courts are in Session the greatest part of the time during which the Judges are not absent from the centre of their respective districts. To treat these Sittings for civil business as Circuit Sittings would lead to the greatest inconvenience to suitors and Counsel, unless such Sittings were very lengthy, or unless their number was very much increased. Neither of these alternatives is consistent with the proposal that such Sittings should be held by the Judges in rotation. The present system is based on geographical and other considerations, which are assumed to be best met by having a number of judicial centres. The proposed scheme involves ranking all such centres as circuit towns. A proposal to alter the present system by having a single judicial centre, with circuit sittings in all other parts of the Colony, may be considered if ever made. The present proposal combines the inconveniences of both systems with the advantages of neither.

In its present form it is demonstrably unworkable. The regular Sittings in the fourteen places in which the Court sits, are in each year (treating the Criminal and Civil Sittings as one) six in each of the four centres, three in each of five other places, and two in each of the remaining five. It is obvious that sittings in rotation, in the manner prescribed by the Act, in each of such places is physically impossible. Take, for example, the case of a judge sitting in Westland. He cannot again sit there in turn until two years after such first sitting. But in this interval he would have to sit at least three times in each of the four centres. To comply with the proposed scheme, the number of sittings in each place must be equal. The Courts must sit as often in Oamaru as in Wellington.

Further, the least consideration shows that to attempt to carry out the proposal with the present judicial power is impossible. In determining the different sittings allowance must be made, unless great hardship to suitors may result, for the longest possible requirements. (This necessarily has in England led to great complaints of the waste of judicial time under the Circuit system.) Putting the four centres at three weeks, the five more important Circuit towns at two weeks, and the remaining five at one week (which is distinctly an underestimated, and taking the number of sittings in each as at present, would give 112 weeks, which, distributed among the five Judges, would give 22 weeks' actual circuit work to each Judge. This is exclusive of the time page 2 occupied in travelling to and from the various towns which (even if the various towns were visited as nearly as possible in geographical order) would accupy at least six weeks: add to this the eight weeks occupied by the Court of Appeal, and the eight weeks of the Vacations, and it will be found that the Judges, even with continued absence from their places of residence, could not overtake the work. Even if the sitting in rotation was confined to the four centres, much the greater part of the year would be spent on circuit. What sort of judicial work is to be expected from nomadic Judges, spending one out of every five days in train or steamer, and what sort of consideration to the Judges is involved in a scheme which allows them (exclusive of vacations) a few weeks out of the year in their homes, I leave to others to decide,

The Act further deals with the Judge's charge to the jury.

It proposes to enact, in the first place, that the Judge presiding "shall, in his" charge to the Jury, carefully explain to them all points of law affecting the case under "trial."

In almost every case, to properly explain all points of law to a Jury, the Judge would require to apply the law to the evidence, and in doing so, to comment upon such evidence. If forbidden to do this, the only safe method of attempting to deal with the law will come to be what I saw and heard in the State Courts of California, where such a law as that proposed exists: that is, the mere reading from a text book the legal definition of the crime, or the general legal principles applicable. This will be in most cases of very little assistance to a Jury.

It is further provided that the Judge, if requested to do so, "shall present the" facts of the case to them, as appearing from the evidence, without comment.' "To "present the facts "of a case without comment is an impossibility. What are the "facts" of a case, is the question at issue, and to be decided by the Jury. To "present the facts as appearing from the evidence" in any degree intelligently, a Judge must collate and arrange the evidence, compare the statement of one witness with another, draw the attention of the Jury to discrepancies in testimony, refer to the demeanour and behaviour of witnesses, point out any mis-statements by Counsel of evidance or law—in fact, do all that is now done in "summing up." In all this the Judge is perforce "commenting" on the evidence. To forbid comment will be either absolutely ineffective, except as introducing an element vague and embarrassing, and leading to constant motions for new trials, or it will compel the Judge to confine his presentation of" the facts as appearing from the evidence "to simply reading over his notes of evidence without any observation. This last course seems the only logical means of carrying out the injunction (if it is to have any effect at all) of abstaining from comment. It seems to me that in that case some questions not unworthy of consideration present themselves.

The English trial by Jury is not an abstract or ideal system. It is not the result of deliberate legislative enactment. It has grown to its present form from an originally entirely different system. No one would be likely to suggest that the ideal method of ascertaining fact would be to require that nothing was to be taken as true which had not compelled the acquiescence of twelve men taken at random, without any necessary acquaintance with the rules of evidence, or with the special matters submitted to their arbitrament.

That a system on the face of it so ill-calculated for its object—especially for a time so unlike, in the complexity and variety of the subjects which now engage our Courts, the simpler and ruder incidents of the age in which it originated—has retained public respect and confidence is due to the various modifications it has undergone, and to the safeguards with which it is now surrounded. Among these safe- page 3 guards I venture to include as perhaps the most important, that which it is the object of the present proposal to destroy—the fact that a Jury now has the assistance at the close of a case of a direction or Summing up by the President or Judge both as to the law and on the evidence,

The verdict of a Jury is the resultant of the system as it stands: those who desire to alter that system in a material point must consider the effect of that alteration on the whole system—not merely as directed to some particular objection. In looking at the proposed alteration, consider its actual effect. Take what is now so common—a case, criminal or civil, extending over several days. The question to be tried may involve much expert and technical evidence—the production and consideration of books, documents, accounts. The details are necessarily not brought out consecutively or continuously, but disjointedly. The same transactions are detailed by two sets of witnesses at different stages of the case. The Jurors are of the average class—too often carefully minimised as to intelligence and education by the challenges of the party whose case is weak or unjust. Much of the evidence is such as, with the best intentions, the Jurors are unable to carry with them in detail. At the close of the case they are addressed by Counsel, The object of the Counsel is the attainment not of abstract justice, but of success. Even if he keeps within the wide bounds allowed by professional ethics, he deals with the evidence from his own point of view. He dwells on the points in his own favour, he ignores or discredits those which tell against him. If his case be bad, he introduces and magnifies irrelevant subjects; he appeals to the passions and prejudices of the Jury. In many cases he finds it his interest, not to instruct, but to confuse and mystify. "Jurors," says Sir James Stephen, in his History of the Criminal Law, Vol. I. p. 572, "almost never take notes, and most of them would only confuse themselves by an attempt to do so; and I strongly suspect that a large proportion of them if examined openly at the end of the trial as to the different matters which they had heard in the course of it, would be found to be in a state of hopeless confusion and bewilderment."

It is in this condition it is now proposed to leave them, practically without any further assistance, to arrive at an intelligent and unprejudiced verdict. As I have before pointed out, under the present proposal the law will be stated by the Judge. The evidence, if read, must be read as given; to attempt to arrange or systematise it would be to comment, and as such prohibited. As the practice now stands, the Judge, at the stage I have mentioned, sums up to the Jury. He is, from his position, conversant with the principles of evidence, accustomed to deal with it, and without prejudice for or against either party. His summing up is made in open Court. Anything like bias or partizanship would not only be open to comment, but would be noted and resented by the Jury, He states to the Jury the law by which the case must be determined. He then deals with facts. He commences by clearing away the irrelevant matter which has accumulated during the proceeding—by indicating the false issues to which Counsel has endeavoured to direct them, by warning them to disregard any appeals to passion or prejudice which may have been made to them. He presents the incidents consecutively and connectedly, with such observations on the evidence, and such references to the comments of Counsel on the various points as he may think necessary to bring before the Jury the actual controversy between the parties. In this he is, what Sir James Stephen calls him," the guide and adviser to those who are ultimately to decide, and a moderator in the struggle, on the result of which they are to give their decision."

Will anyone doubt that real justice is more likely to be done when the Jurors have had the benefit of such guidance and advice, than if left to give their verdict under such circumstances as I have described ? For my own part, I should go further, and say that not only would the removal of the guiding and moderating functions now entrusted to the Judge be injurious to the administration of justice, and lead to the most serious injuries to innocent persons, but that it is the existence and exercise of such functions which have alone saved the system of, trial by Jury in spite of the abstract objections to it.

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But probably the advocates of the proposed change will agree with much of what I have said on this point. Their objection is not that the summing up by a Judge is not of value, but that it is hurtful, because in the summing up Judges express opinions on matters of fact, and that these opinions unduly influence the Jury. That in many cases the Judge expresses or indicates his own opinions on the facts is true. Indeed, it is inevitable. You cannot, in many cases, piece together and comment on evidence without, either directly or incidentally, showing your own view. I see myself no reason why such should not be continued to be, as it always has been, done. The practice is as much and as ancient a part of the system of trial by Jury as is the system itself.

The real objection made by the advocates of the present proposal is founded, not so much on a dislike to the indication of an opinion by the Judge, as to the suggestion that Juries will attach an undue importance to such opinion when expressed. What is undue importance is a matter of opinion. That the opinion of a Judge deserves and should receive weight as an opinion, seems to me clear. The fear of those who propose this innovation seems to be that Juries will consider it as more than an opinion—as, in fact, authoritative and binding. I do not think this difficulty exists in fact. It is not complimentary to a Jury's intelligence, or consistent with the assumptions necessarily made by those who advocate the change. They insist that a Jury is intelligent enough to understand and pass judgment upon all the details of a complicated case without advice or assistance, and capable of detecting and resisting the fallacies and blandishments of Counsel, and yet is unable to discriminate between the expressions of a Judge's opinion and his authoritative ruling on points of law. It proposes to protect Jurors against themselves. They are assumed to be able to dispense with the Judge, but not to withstand him.

Even if it should be conceded that the expression by the Judge of his own opinion is a defect (a view opposed to the opinions of those in a position to speak with authority on the subject), the much more important question remains—Is not the proposed remedy a greater evil ? It is proposed to avoid a defect which, even if real, is comparatively unimportant, to deprive a Jury entirely of that assistance of the Judge which I have attempted to express. Is that reasonable ? To cure an ache, real or imaginary, you cut off a limb ! To avoid a risk of a flavour of Judge in the verdict, you are content to let the verdict be the result of the latest impressions of Counsel's heated and partisan oratory.

Who has asked for this change ? Where has there been any suggestion that the Judges have so abused their power, or that the risk intrinsic in the system of Juries over-valuing a Judge's comments is such as to justify this vital change in our procedure ? All charges to Juries are made in open Court. In important cases they are fully reported. Is there any instance of the Press, or the public, having complained of partiality or injustice ? The lawyers are as good judges on this point as any. What is their opinion ? Advocates whose sophisms it has been the duty of the Judge to expose—unscrupulous Advocates, who Would hope for profit in the unrestrained facilities for confusing and misleading Juries, and perhaps some few visionaries who prefer an unworkable ideal to a practical system, may support the proposal; but I feel satisfied that the great majority of berth branches of the profession is against it. I may, as a Judge, be assumed to be a not altogether impartial witness in such a question. But I speak with an experience of some fifteen years' practice at the Bar when I avow my strong conviction against the wisdom of the proposed change.

Its chief, if not its only recommendation, seems to be that it has been adopted in some of the States of America. As I have said, I saw it in operation in one State, On enquiry I learned that it had been there adopted because the public could not trust the elected Judge who presided in the State Courts. It does not exist in the Federal Courts—the Court of the United States as a whole. I have no doubt those who advocate it do so on general grounds, and would deprecate any intention of reflecting on the Judicature of New Zealand. But the effect of its adoption in New Zealand alone in any British community, will be inevitably to cast a slur upon such Judicature, and inferentially to disparage the administration of justice in the Colony.

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The Bill further proposes that costs shall be in the discretion of Juries.

What is proposed is, that the Jury shall, in their own discretion, and without power of review at the trial of the facts, fix the amount of costs on any standard or principle they choose: may refuse them altogether; may order them to be paid by any party they think proper—even by a successful plaintiff. I can only express as my own opinion that it is difficult to conceive any more powerful instrument of oppression than a body entrusted with such powers—powers far beyond those now entrusted to any Judge.

It is the function of a Jury to determine disputed facts. The amount of damages sustained by a litigant is, in certain cases, one of such facts, and there-fore proper to be determined by a Jury. The question of what amount of expenses Has in any case actually been incurred is also a question of fact, but one most unsuitable for determination by a Jury in course of a trial.

The questions which really ought to determine the amount of costs very frequently never come before a Jury. The determination of issues of fact may be only a small part of the proceedings, and may be independent of many questions which should determine the right to costs. In an Equity suit, for instance, much of the work necessary for doing justice between the parties may have to be done after the determination of disputed questions of fact.

The principle on which costs are now determined is the simple one that (with certain precautions to penalise frivolous and vexatious actions) the litigant who has compelled another to establish his right by resort to a Court of Justice, pays the costs of the litigation he has rendered necessary. The amount is decided on proper enquiry by the Judge, or by the officer of the Court.

The present proposal is to establish for this simple and equitable principle the sentiment or caprice of a Jury. I can imagine no proposal more eminently calculated to add to the uncertainty of litigation.