"or probable, or even a case; in any conflicting case of guilt; of which they should commit the accused to trial: If, however, from the slender nature of the evidence, the unworthiness of the witnesses, or the conclusive proof of innocence produced on the part of the accused, they feel that the charge is not sustained, and that if they sent it for trial he must be acquitted, they should discharge the accused.
And although 11 & 12 Vict. C.42 has not been extended to the Colony, still the Magistrate could not have done wrong in guiding himself by Section XX, which enacts: "Provided nevertheless, that if afterwards, from want of sufficient evidence or other cause, the Justice or Justices before whom such accused shall have been brought shall not commit him or hold him to bail for the offence with which he is charged, it shall be lawful for the Justice to discharge him."
Before being committed to Gaol, the accused was entitled to the deliberate and independent judgment of the Magistrate as to whether there was a prima facie case against him. The Magistrate was to investigate the case in the same manner as if the accused was charged with an indictable offence committed in the Colony, in which case the Magistrate should commit the accused only if a prima facie case against him had been proved, or there was probable cause for believing that the accused had committed the crime.
By acting otherwise and endeavouring to leave the decision of the case to the Governor in Council, Mr. Wodehouse has been guilty of a very grave error of judgment.
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