22-APR-1991 17:42
"
CONSTITUTIONAL AFFAIRS BR
852 840 1976
P.17
30
4
in
AS to that Submissión, I ayree with uxay, C.J. Cawthorne chat the silence ar
these courts cannot Бе tantamount to rejection of
of the doctrina. Six Jocelyn Simon, P. in Adams at page 212 disposea of Cronin by making the point that this doctrine was not drawn to the attention of the court, ano I think he is right on that even though the Margate Pier case sac#2 to have been mentioned by counsel for the Crown. It is surprising that Milweru v
(supra). However, the point woes not appear anywhere in the judgment and it is impossible take this decision as being a proper analysis or the
the doctrine. In any event, the uecision is not pinuing upon mẹ, anu it, it 15 said that this
Thatcher was not cited
non-existence
decision decline
ot
11! fact contrary to the
to follow
it.
1
trine, then I
to
Mr. Keane 3 yeneral submission WAS that if such doctrine existea, it seems stranye that mone of the aple minds wno nad to consiuer propiem9 in this area never thought of this doctrine. However, in my juagment, when it comes to છે choice between Cases where the doctrine could have been considered, but was not, OM the one hand, anu cases, SUCH as Adams, Cawthorne and Aldciuye on the other where the doctri116 Was carefully consicured and found to exist I prefer unhestitatingly, the lattar
approach. Not only do these cases support the existence of the doctrine Dut so ao Sir Owen Dixon, Sir William Wade and Dr. Rubenstein as can been seen by passayes Mireauy citea.
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#
+
Having concluded, as I do, that the doctrine axists, and is applicable in criminal cases, as well as in civil cases, I now have to decide how to apply the doctrine to the facts of this case.
Application of doctrine to facts of this case
As. I made clear earlier in this judgment,
trial.
Dotn
They are
•
Applicants have not yet been commicted for Doth on baii. The application to stay the eximina 2 proceedinys. was heard in September and October 1990 ano Mr. Line's decision refusing the stay was given on 17th. October 1990. It was not until five months later in waren 1991 chat the poinc was First raised
MI.
+
the
Lee submits that. Decause 45 in Cawthorne, point was not raiseu before Mr. Line gave his uecision, the doctrine. should apply and it is now too late to ruise issues as to the "invalidity of Mr. Line's appointment For the doctrine to apply, iz. Lee submits that the point must De raised sefore the very jugju trying tne CASA anu peiore he reaches a
cision.
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21'd 0490 698 ZS8
PE:ZT 22-10-1661
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