CO129-364 - Public Offices & Others - 1909 — Page 178

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and complete. This must be so even in an English Court where matters are not usually complicated by differences of language. How much more so when the accused himself and most of the witnesses are Chinese, and not knowing English, and the latter speak a dialect which neither the prisoner himself nor his advocate can understand. The first suggestion therefore falls to the ground. As to the second point of waiver by counsel, I think that if in criminal matters, when the plea is not guilty, the client himself is not competent to bridge, by acquiesconce, gaps in the case against him, nor to condone irregularities by consent, then a fortiori his counsel can assume no such responsi- bility for him. It is true that the quasi civil character which the early law attached to mere misdemeanours has occasionally led in their case to slight relaxations of the rule, Thus on 2 second trial of a charge of manslaughter, the evidence of a witness at the first trial has been by consent of the prisoner, and to save time merely read out by the judge from his notes, and then assented to en bloc by the witnesses.

It is unnecessary,

I suppose, to labour the point that if the consent of counsel is not sufficient to bind the prisoner on a trial for misdemeanour when the latter perhaps, if he so expressly desires, bind himself, then on a trial for felony where the prisoner ez hypothesi can consent to nothing, the con- sent of counsel purporting to be given on the prisoner's behalf can be of no avail. I am unfortunately then compelled to the conclusion that there was Я grave irregularity running through the whole conduct of the trial; ai irregularity which was beyond the competence of the prisoners or of their counsel to waive or condoue, and which is sufi- ciently serions to vitiate the whole proceedings. It necessarily follows that I mast hold that there was a miz-trial, and that the conviction should therefore be quashed. I have arrived at this result perhaps by reasoning along some- what narrow and technical lines, but in a caso of this importance it is argently necessary to keep fundamental principles rigidly in view. On general grounds, however, and withont expressing any opinion on the merits of the present case, I venture to think my conclusion is bral upon the broad principles of justice, For the purposes of the judgmont, I have assumed throughout that counsel for the prisoners was consciously aware of the irregularity that was being committed. As a matter of fact, however, I should think it exceedingly unlikely that it came to Nr. CaNhrop's notice while the evidence for the Crown was being given that evidence was not being interpreted to his clients. He was entitled to assume, as the Court and the Attorney-General must have assumed, that the proceedings were being regularly conducted, and that everything that the law required would be done. It appears as if the irregularity escaped his notice altoge- Ler up to the middle of the as for the defence, when he very properly reserved the point and took time to consider the suggestion thrown out by the Court. It would clearly be a monstrous thing, if, when men were being tried for their lives, the Crown was entitled to reply that it was the duty of counsel to notico earlier | what was going on, and that because he had not done so, an objection of such weight must be overruled as coming too late in the proceedings. Now, again, is it possible to hold that the prisoners, uulettered and ignoraut men, had any notion that they were consciously! abandoning a right the law entified them to: claim. Suppose the case of an Englishman who should be on trial on a capital charge when travelling in a foreign country, of whose language and procedure he was entirely ignorant. Suppose that, either by the efforts of his friends or by the good offices of the foreign government, he should be provided with an advocate to assist him at the trial. Surely the first request of an educated man possess- ing the least familiarity with courts of law would be that the whole of the evidence at the trial should be carefully interpreted to him. If, being illiterate, he should through ignorance or timidity refrain from making that request, and forbear calling the attention of his advocate to the matter, surely he would not think it conson- ant with the principles of justice for him to be told after conviction that he had waived his rights by not insisting on them earlier, and that } having already heard the gist of the evidence at the preliminary proceedings in an inferior court, he had not in fact any real cause of complaint:

The Chief Justice The convictions UTO naushad,

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The Attorney-General-Having regard to your Lordship's decision I have now to say that' I intend preferring an indictment on the charge of murder against both prisoners.

The Chief Justice-You are at liberty to do that. The administration of the criminal law is in your hands, and you may instruct the police as you think fit,

Mr. Calthrop asked for the discharge of the prisoners.

The Chief Justice-I have discharged them. Mr. Calthrop stated that in a case recently decided by the Court of Crown Cases Reserved it was held that prisoners could not be re-ed Fried after their discharge.

The Attorney-General-My friend can argné that when the case comes on for trial.

The prisoners were re-arrested leaving Court.

When the decision of the Full Court was given in the Peak Murder trial yesterday quashing the verdict of the jury, the prisoners left the dock and sat down in the body of the ourt. Before the hief Justice left the bench he drew attention to another irregularity. The prisoners had not been told that they were discharged, and the Court interpreter was instructed to inform them. When he told them that they were liberated they passed out of the Court, but were re-arrested before they left the precincts of the Court.