SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. Way and J. Downer, for prisoner.-The argument, if pushed to its legitimate conclusion, would prevent any point whatever being considered in the case, for it was that the points must be reserved in open Court after verdict. In the course of the trial the learned Judge intimated his intention to reserve certain points in the prisoner's favour. The learned Judge was not asked, before he left his seat, whether he still adhered to that intention; but if the argument on the part of the Crown was to have any weight, the conclusion the Court would be driven to was that although points had been previously reserved, unless when the jury gave their verdict those points were again reserved, the jurisdiction of the Court would be gone, and so the Crown would be entitled to snatch a verdict, although it might not in any way be justified in law. The case would have to be signed before the sittings were over in one view, or before the Judge left the Bench in the other, and so narrow a construction would not be put upon a provision in a prisoner's favour. The learned Chief Justice on the trial intimated his intention to reserve a case. It must be conceded he had power to state a case. Then the case which he had power to state would consist of the questions which had arisen at the trial. (HANSON, C.J. In that case questions of law which shall have been so reserved.") Yes. There is nothing whatever to limit the jurisdiction of the Judge to the time of the Court rising; and besides, the reservation need not be in Court at all, as the cases show. The Act says when any person shall have been convicted, it shall be lawful for the Judge to reserve any question of law. That does not mean while the Judge is actually sitting on the Bench. It must at least extend to while he has jurisdiction over the matter, and the Judge has jurisdiction while the sentence is respited. The sole element of the question is whether it is a point that arose at the trial. In looking at that the Court will see what the present enactment arose out of. The previous practice was that the Judge used to reserve questions of law for the opinion of the Judges, and they sat not as a Court having jurisdiction, but as assessors to advise; and the practice of the Crown was to grant a pardon if the Judges were of opinion that the man was innocent. That was the practice which arose out of the desire on the part of the Judges on the one hand, and the proper spirit of the Crown on 66 REGINA V. TIDEMANN. CRIMINAL. SUPREME COURT. the other, that a person who happened to be convicted should not suffer the penalty attached to an offence of which he was not guilty. The 66th section of the Local Act and the corresponding sections of the English Act were passed, not for the purpose of restricting the jurisdiction of the Judge to bring matters before the Court, but to give legal competence to its decisions. GWYNNE, J.-This is a case stated by my learned colleague the Chief Justice, who presided at the last Criminal Sittings. The case informs us that the learned Chief Justice reserved certain questions for the consideration of the Full Court. As to the first two of those questions, it is unnecessary to make any remark, because the whole discussion has been upon the third point. Upon the face of the case it appears that this particular point was not reserved during the criminal session. Mr. Stow contended that the Judge, who for the purpose constituted the Court pro hac vice-not having made the reservation till after the session was functus officio, and had no power to reserve this question. It is not doubted that he could have reserved this third point as easily as the other two; but it is stated in the case, and of course not denied by the Chief Justice, that this was an afterthought-that is, that he did it when, as it appears to me, he had ceased to be the Court, and that therefore he had no power to exercise the functions of the Court. I am very sorry in one sense to come to this determination, but I am expressing what I believe to be the law. It appears to me after the termination of the session the Chief Justice ceased to have any power as a Court of Oyer and Terminer, and that he then melted down into an ordinary Judge, or rather to the Chief Justice of the Court. The form of certificate provided in the Act has considerable weight with me in arriving at this conclusion. It says, "Whereas at a Court," &c., so-and-so having been found guilty, "the Court before whom he was tried reserved a certain question of law for the consideration of the Supreme Court." It refers to the question of law reserved by "the Court". that is, by the Judge who constituted the Court upon that occasion -and of course it must be reserved while he is exercising the functions of that Court. I therefore am of opinion that, although so important for the prisoner, and although the Chief Justice says SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. that in his opinion-and I think in that opinion every lawyer must agree that there was no evidence to convict the prisoner, yet this Court has no power to consider the point which we have been discussing. WEARING, J.-I have reluctantly come to the same conclusion, feeling that under the 66th and 67th sects. of Act No. 6 of 1859, it is incumbent upon the presiding Judge formally to reserve the points which are to be submitted. It appears to me that two matters have to be considered in regard to this question-first, whether it was a matter arising out of the trial- -as to that there can be no doubt; and whether it was reserved at the time. We hear from the statement of my learned colleague the Chief Justice that it was not formally reserved, but was afterwards incorporated in the case in consequence of certain considerations. Therefore I am of opinion that the third question cannot be formally submitted for our consideration. In arriving at that decision I concur in the remark of my learned colleague Mr. Justice GWYNNE, and express my very deep regret-giving no opinion as to what might be the ultimate decision of the Court upon the discussion of the point— but I do feel it a matter of extreme regret that the provisions of this Act, constituting us the determinate Court of Criminal Appeal, forbid us to consider what is a matter of the greatest importance, not only to this prisoner, but I think also to the fair administration of justice. I think for a person to have been convicted on an information upon which some doubts arise, and for the Court not to be able to consider those doubts when submitted, militates very greatly against the efficiency of a Court of Appeal. I quite concur in the remark of the Chief Justice that it is highly important that no man should be improperly convicted. In offering this opinion, I say nothing about whether the prisoner has or has not been properly convicted; but I do say that when doubts have arisen in the mind of the presiding Judge, and those doubts, by the provisions of the Act of Parliament, cannot be afterwards submitted to the consideration of the Court, the attention of the Legislature should be directed to, what seems to me, a fatal blot upon the due administration of criminal law in this colony. SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. HANSON, C.J.-I agree with the view taken by my learned colleagues. I reserved the point in order that the matter might receive the consideration of the Full Court after argument upon it. My opinion at the time was that I had not power to do it; but it appeared to me a matter susceptible of fair argument, and at any rate one that in the interests of justice I could not decide against the prisoner myself. Stow, Q. C., intimated that after the strong opinion of the Court he should not argue the other points. GWYNNE, J., delivered judgment on the other two points as follows:-The prisoner was charged with forging an undertaking for the payment of money. Those who know the history of the criminal law know how gradually forgery has been extended till it now includes orders or warrants and undertakings for the payment of money. At common law signing a false signature to a warrant or undertaking for the payment of money was not forgery, but it was found the commercial community were injured, and the law was extended to those documents. The meaning of an undertaking for the payment of money in commercial transactions I understand to be a document upon which an action of assumpsit would lie. I never heard that the covenant in a mortgage-deed would be an undertaking for the payment of money within the Statute, or that a forged mortgage-deed could be the subject for an indictment for forging an undertaking for the payment of money. The crime in that case would be forging a deed, and to that there is a Statute applicable. In this case the document is a memorandum of mortgage under the Real Property Act, which, it is said, when registered shall have the effect of a deed. I refer to the Act to find the nature and characteristic of this document. It owes its existence to this peculiar Act-the Real Property Act-and was non-existent until the passing of that Act. Therefore such an instrument could not have been in contemplation of the Legislature when they passed the law making it felony to forge an undertaking for the payment of money. Then, it is said that before it was registered it might be called an undertaking for the payment of money. But the evidence shows that from its inception it was SUPREME COURT. PAPE V. WADEY. CIVIL SITTINGS. an instrument designed by each of the parties as a depository of their respective rights, to be registered in the Real Property Office, and that it was to all intents and purposes to be a memorandum of mortgage under the Real Property Act. That was the instrument which the parties from the beginning designed to create. When the Statute creates new instruments, it would be a natural supposition that they would guard those instruments, and so it does. The Act defines what shall constitute the crime of forgery, but this instrument is not protected. It defines what shall constitute forgery under the Act, but it does not say that forgery of this instrument shall be a felony, and the usual principle of law, expressio unius would probably apply. In an indictment for forging a deed I won't say whether a conviction might ensue, bnt that is very doubtful. The Act says when registered it shall have the effect of a deed. That necessarily implies that the Legislature did not intend that it should be a deed. It would be nonsensical to attribute to it a property which it necessarily had not. Therefore I apprehend it is not a deed, and that the prosecution would not succeed if they treated it as a deed. Therefore, particularly as in a matter where the liberty of a subject is concerned, the Court consider this was not an undertaking for the payment of money, and that the prisoner is entitled to his discharge. Prisoner discharged. GWYNNE, J.] [CIVIL SITTINGS. 19 JUNE, 1871. 1 PAPE V. WADEY. A Trustee under Division VI. of the Insolvent Act, 1860, has no power to assign his trust. THE action was malicious prosecution; and during the defendant's case it was proposed to prove that the defendant had done the acts complained of as a trustee under a deed of assignment under Division VI. of the Insolvent Act, 1860. |