1887. REGINA HARVEY, threw a bucket of hot water over him, taking up the bucket nearest to him. But it does not seem that the prisoner knew that the water was scalding, and therefore likely to inflict serious bodily harm on the boy. Under these circumstances the Judge Darley C.J. seems to have thought that the law bound him to hold that the act was malicious, and to look to the result flowing from the act done rather than to the intent; to look to the injury which was inflicted rather than to the mind of the person who inflicted such injury. I cannot see that there was anything malicious in what the prisoner did, so as to bring the act within the meaning of the 7th or 24th sections. It may be said that the prisoner took up the bucket recklessly, but at the same time he did not take it up with the intention of inflicting any serious or permanent injury upon the boy. I am of opinion that the words, "intent to injure," in the 7th section, must mean intent to inflict some substantial injury, which, although not necessarily of a permanent character, must be substantial at the time; and not such injury as would ordinarily be inflicted by the mere throwing of a bucket of water. The question is, did the prisoner take up this bucket of water intending to injure the lad in a substantial manner? I do not think the evidence warrants that view. I think, looking at the evidence, that it is impossible to say that the prisoner intended anything of the kind. He seems to have taken up the bucket, not knowing whether it was hot or cold, merely for the purpose of inflicting some punishment on the boy for his impertinence. I think, therefore, that the learned chairman came to an erroneous conclusion, in the view which he took of these two sections, and in the way in which he applied them to the facts before him, and that the conviction cannot be upheld. It is much to be regretted that the case was not allowed to go to the jury on the second count. If the prisoner had been. found guilty of a common assault only, the sentence would have been much lighter than six months' imprisonment. If he did not know that the water was hot, six months was a very severe sentence. FAUCETT, J. I concur in the result with his Honour the Chief Faucett J. Justice ; but not without considerable doubt. The word 1887. REGINA v. HARVEY. "malicious" is explained by s. 7 of the Criminal Law Amendment Act, according to which a person doing an act recklessly or carelessly is taken to have acted "maliciously." The question Faucett J. is, did this man do this act in a reckless or careless way so as to amount to malice? That is, did he do it with a reckless disregard of the consequence, so as to bring himself within this section? Innes J. I agree in thinking that it seems a pity that the prisoner was not found guilty on the second count. SIR G. INNES, J. I am of opinion that the conviction is bad. When the learned chairman told the jury "that if the prisoner was doing an unlawful act in throwing the water over the boy, it did not matter whether he knew it was hot or not," it seems to me that he uttered that which was directly calculated to mislead the jury. Many assaults are not attended with injurious results, and though unlawful acts are mere hurtless assaults. The learned chairman says that he referred to Ward's case (6), and declined to direct the jury " that they could not legally find, or ought not to find, the prisoner guilty on the first count, if they believed that at the time he threw the water he was ignorant of the fact as to whether it was hot or cold." I am of opinion that the learned chairman was not bound to adopt that form of words. The question is whether what he did tell the jury was correct : not whether he did not direct them as the learned counsel for the prisoner asked him. No doubt the Legislature have made a praiseworthy attempt to define "malice" (s. 7), and it is a very correct definition. In R. v. Pembliton (7), Blackburn, J., says at p. 221,"Malice may be defined to be 'where any person wilfully does an act injurious to another without lawful excuse.' I think it is impossible to say in this case that the prisoner has maliciously done an act which he did not intend to do." There must be a wilful doing of an act injurious to another (that other being not necessarily the person intended to be injured): not a hurtless or innocuous assault, but one that inflicts, or is intended to inflict, some substantial injury. So, in (6) L.R..1.C.C.R. 356. (7) L.R. 2 C.C.R. 119. the same case, Lush, J., says (at p. 123), Conviction quashed. NOTE.-See R. v. Latimer (17 Q.B.D. 359, where R. v. Pembliton is discussed). 1887. REGINA v. HARVEY. Innes J. THE QUEEN v. MATTHEWS. Criminal law-Practice-Right of prisoner to be defended at Quarter Sessions by By s. 342 of 46 Vic. No. 17: Every accused person shall in all Courts be admitted to make full answer and defence by counsel, as the term is by this Act defined." By s. 3 subs. (o): "The term counsel shall include attorneys in all Courts where attorneys now practice, or shall hereafter practice, as counsel." By s. 7 of 13 Vic. No. 7: In all Courts of Quarter Sessions attorneys shall be allowed to practice and act as counsel, and be heard in all matters before the said Courts in the same manner as barristers now are in the said Courts." This Act was repealed by 46 Vic. No. 17, and the provisions of s. 7 were not reenacted. A chairman of Quarter Sessions, on objection being taken, refused to allow two attorneys to jointly conduct the defence of a prisoner. Held, that although the express words of s. 7 of 13 Vic. No. 7 were not re-enacted, the terms of ss. 342 and s. 3 subs. (o) of 46 Vic. No. 17 placed attorneys on the footing of barristers, as far as the Courts of Quarter Sessions were concerned; and, therefore, two attorneys could (just as two barristers might) jointly defend a prisoner. Held also, that inasmuch as the prisoner had been deprived of a right conferred upon him by the Act of being defended by two attorneys, he had suffered a "substantial wrong" within the meaning of s. 423 of 46 Vic. No. 17. Feb. 18. Darley C.J. Faucett J. and Innes J. 1887. REGINA v. MATTHEWS. Per curiam. Although every presiding Judge has a discretion to regulate the practice in his own Court, so as to prevent any misconduct or breach of decorum, he cannot for any other reason refuse to hear counsel. R. v. O'Neill (6 N.S.W. L.R. 43) distinguished and explained. SPECIAL case stated by Mr. District Court Judge M'Farland, chairman of Quarter Sessions: "1. The prisoner was recently committed at the Court of Petty Sessions, holden at Bowral, to stand his trial before the Court of Goulburn Quarter Sessions for having indecently assaulted one Lydia Stokes. 2. At that Court of Petty Sessions the prisoner was represented by Mr. C. C. Gale, an attorney resident at Moss Vale; and afterwards Mr. Gale, with the prisoner's sanction, instructed another attorney, Mr. Davidson, of Goulburn, to conduct the defence jointly with himself before the Goulburn Court of Quarter Sessions. 3. Accordingly, on the commencement of the trial at the latter Court Mr. Davidson claimed as a right that the prisoner should be defended by two attorneys, himself and Mr. Gale (then present), and stated that they desired to examine and cross-examine the witnesses between them—that is, that one of them would examine or cross-examine some, and the other examine or cross-examine the remaining witnesses, and that one of them should address the jury. "4. Mr. Pitcairn, who prosecuted for the Crown, objected on behalf of the bar to the course sought to be taken by Mr. Davidson and Mr. Gale. "5. I declined to allow two independent or distinct attorneys to appear and conduct the prisoner's defence at the same time. I did so because, for the last twenty years at least, there was no precedent for such proceeding in our Courts of Quarter Sessions; and the having of two or more different persons appearing and acting as attorneys on record for the same prisoner might lead to undesirable complications. Nor was I aware of any enactment that sanctioned the desired departure from established practice. And the effect virtually of permitting two or more distinct attorneys to defend the same prisoner in a Court of Quarter Sessions would be to exclude the bar from practising therein, a result injurious to public interest in my opinion. I considered, also, that the recent decision of the Supreme Court in Regina v, 1887. REGINA V. O'Neill (1) established the principle that the chairman of a Court of Quarter Sessions was the judge of the propriety or impropriety of any novel procedure attempted to be introduced MATTHEWS. therein, either by barrister or attorney. 6. The trial of the prisoner then proceeded; Mr. Davidson conducting the defence alone, and very ably; but the evidence was conclusive, and the prisoner was convicted and. sentenced. The question for the decision of the Supreme Court (and which I have been required' to reserve) now is-Was there any illegality in my deciding as above stated (in paragraph No. 5) ?" Field for the prisoner. Pitcairn for the Crown. [FAUCETT, J. Is not the case governed by R. v. O'Neill (1)?] Field. No. This is a question as to the construction of a statute. In O'Neill's case it was a mere matter of discretion for the Judge. The effect of section 342 and sec. 3 subs. (o) of the Criminal Law Amendment Act is to place counsel and attorneys upon the same footing, and to confer upon them equal rights as to the defence of prisoners. Pitcairn for the Crown. S. 3 (o) does not give attorneys the privileges or position of barristers. It merely says that one word shall embrace the two branches of the profession. [DARLEY, C.J. This Court regulates the number of counsel it will hear in particular cases, e.g., on demurrers-a rule which differs from the English or Irish practice.] S. 7 of 13 Vic. No. 7 gives attorneys the right of audience at Quarter Sessions. is repealed by the Criminal Law Amendment Act. Vic. No. 7 is not re-enacted by 3 (0) or by s. 342. C.J. It is quite clear that the prisoner has a right to have two or three counsel to defend. Has the Judge a right to say "I will only hear one counsel"?] I submit that he has. R. v. O'Neill (1) shows that the matter is entirely in the Judge's discretion. (1) 6 N.S.W. L.R. 43, This Act S. 7 of 13 [DARLEY, |