May 7, 1896.]
Mr. Francis-From our point of view there is absolutely no evidence as to what is the standard of milk; nowhere is there any state- ment to enable the Magistrate to form an opinion for himself on the evidence as to whether water. had been added or not; no statement as to what the constituent parts of pure milk are, or of the proportions in which they exist in milk, and nothing which the Magistrate could compare with the amount of constituents stated to be found in the sample which was analysed. I am reading now as part of my argument, from a journal called The Dairy, an analyst's view in reference-
The Acting Attorney-General-That is not evidence.
Mr. Francis-I am reading it as part of my argument.
The Acting Chief Justice-If you are read ing it as part of your argument, you need not tell us where it comes from.
Mr. Francis quoted from the paper a state- ment that it was most important in the applica- tion of analysis to ascertain beyond all doubt what are the relative proportions of the several constituents in milk a statement which would commend itself to their Lordships' common seuse. It was impossible to ascertain whether any substance had been adulterated unless there was knowledge beforeband of what were the normal constituents of an article in its pure state. The expert witness must put that before
the Court to enable the Court to arrive at a pro- per judgment in the case. It was not sufficient that the expert should come into Court without giving any information whatever as to what were the ordinary constituents of pure milk, and simply state, without giving any grounds for his opinion, that at least six per cent. of water had been added to the milk. There had been three or four casos decided in England on the point.
The Acting Chief Justice-The English law is very different.
CHINA OVERLAND TRADE REPORT.
him some information which shows what ought to be the proper or normal percentage in milk.
The Acting Chief Justice--We must assume that the analyst has information in addition to saying there is so much percentage of water. He says there is six per cent. of added water and he must have some standard before him.
Mr Francis-Precisely, that is my argument in this case, It substitutes his opinion for the judgment of the Magistrate, and the witness is not the judge in the case.
The Acting Chief Justice-Don't you think his opinion is more valuable on a technical point that the Magistrate's? A matter of fact must be decided by someone. If certain jurymen, as is sometimes the case in criminal cases, went into the box to decide whether there was too much water, that would not be so satisfactory as to have the opinion of an independent man. There is nothing unusual in making his certificate prima facie evidence. Here you have one thoroughly trustworthy expert and no expert has been called against him. He is quite independent.
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Mr. Francis-The expert in this case is paid by the Government.
The Acting Chief Justice - He would do his duty for both sides and would not press to obtain convictions.
Mr. Francis-I do not know. A man is paid by his client to do his duty.
The Acting Chief Justice-It is not like
experts in the Taipingshan cases, for instance, the object of one side of experts being to make the property as valuable as possible and-
Mr. Francis-And on the other side to save the Government money.
The Acting Chief Justice-In this case the expert witness was not trying to get a verdic for his client. We must have some one in his position in the colony.
Mr. Francis urged that the Magistrate must have some material before him in order to exercise his opinion as to what is the standard. In the case he had quoted it was laid down that Magistrates might adopt one standard and analysts another. In England, where a certain amount of legal effect is given to a certificate of the analyst, the Court of Appeal bad held that that certificate was not necessarily con-lusive. That decision amounted to this: whatever the form of certificate provided by law and whatever the analyst's evidence it must be such as to enable the Magistrate to exercise his own opinion and, if he thinks fit, to take another
Mr. Francis-Yes, but this caso I am about to cite will strengthen my argument It is in the "Weekly Notes" of February 1st, 1896, and the case is Fortune 1. Hanson, which was heard before the Diri- sional Court. It was
case of milk adulteration and the only evidence before the Court was the analyst's certificate, which stated that there was five per cent. of added water. The certificate was held to be bad, because it did not state the whole percentage of water found in the sample so as to enable the magis-standard than that adopted by the analyst. trate to form a conclusion whether or no water had been added, and it was therefore held that he was right in his refusal to convict.
The Acting Chief Justice-In the case before as the Government Analyst does state the con- stituent parts and therefore it is not on all fours with that case. Then in that case the form of the certificate is prescribed by the schedule and without that form it did not have a statutory effect
Mr. Francis-The principle is that on which the decision in this case was founded. The Magistrate-he being the judge and jury-must have before him the facts which are necessary to enable him to draw his own conclusion as to the correctness or otherwise of the evidence. "There is a great variation in the standard of milk." How can the Magistrate form any opinion sup- posing the analyst says the total percentage of water was so much? The Magistrate could not decile for himself whether there was added water or not unless evidence was put before him to show what is the normal quality of milk.
The Acting Chief Justice-They do not put that in the English certificates; it is not re- quired by law.
Mr. Francis The Board of Trade furnishes Magistrates in England with the general average and so they have the standard before them in an authoritative form. But what I submit is. not a question of the peculiarities of the law with reference to milk, but here there are none of the common sense details that are required in Eng- land to enable a conviction for adulteration to be obtained; there was not one single precau. tion to prevent improper conviction. Adnl. teration means the addition of a substance not ordinarily found in milk, such as chalk; that is conclusive on the point, but if a witness says he found 89 per cent. of water it is not conclusive unless either he or the Magistrate has before
The Acting Chief Justice-If there is no one to decide on these matters then every milk seller in the colony can adulterate his milk and laugh at the public. He can say "Opinions vary;" but they do not vary except within certain limits.
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Mr. Francis-I am applying for a re-hearing on the ground that additional evidence is neces- to enable justice to be done in the case. sary It is necessary for the Magistrate, before he can come to any decision, to know what is the standard of water supposed to be in milk. I submit it is law aud common sense that the evidence of the analyst to be good evidence must give data upon which the Magistrate can act. No Magistrate can act on evidence of mere opinion. If the analyst had said the standard quality of milk was such and sach and be found in the sample of milk consider- ably more water than there ought to have been the Magistrate would have been in a position to form his own opinion. The Magistrate is not bound by the analyst's opinion as to what the proper standard ought to be. I must be satisfied that there is sufficient to show that the provisions of the Act have been infringed. An expression of opinion does not show anything. The evidence given by Mr. Crow is only evidence of opinion. lie does not say that the standard quality of milk ought to contain so much water and that the sample contained so much more water than the standard. That would have been evidence to act upon. Mr. Crew's statement was that there were 89 parts of water found in the milk and that in his opinion there was six per cent. of added water, from which no one could draw any conclusion unless they were told what the standard quality ought to be in pure milk.
The Acting Chief Justice But he said that the total of non-fatty matter was 8.1, fat 2.06, and his third point is, water 89.93. If Mr.
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Crow says upon that there is at least six per cent. of added water it stands to reason that he puts the proper standard somewhere in the region of 84.
Mr. Francis-We are prepared to offer any amount of evidence that the recognised standard in England for the percentage of water in milk 88.5. As the result of 120,000--- The Acting Chief Justice-What are you reading from?
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Mr. Francis-It is a dairyman's paper. The Acting Chief Justice-Yes, of course, they would make the standard to be very large. Mr. Francis-Excuse me, my Lord, I am asking for a re-hearing. I am saying we can put in evidence at the re-hearing because there was a mistake-
The Acting Chief Justice-You had plenty of opportunity for giving that evidence before the Magistrate and going into the matter and you were represented by a very able solicitor.
Mr. Francis-The solicitor is a very able one, my Lord, but there is another point. He was nuder the impression that, on the authority of another case, the evidence he put before the magistrate to show there had been no adultera- tion ought to have, over-weighed Mr. Crow's evidence entirely.
The Acting Chief Justice-The question is, was there sufficient evidence for the Magistrate to convict upon: we cannot ge upon any hypo- thetical case. What we have to decide is, was
the decision of the Magistrate upon the facts before him a right and proper decision or was it a wrong oue?
Mr. Francis-That is not quite the question, I submit. You have constant applications made for a re-hearing and if the Court was satisfied or had reason to believe, either from evidence or statements of counsel, that there had been a gross miscarriage of justice your Lordship would grant a re-hearing. The evidence we are prepared with is that 87 to 88.5 per cent. of water is the average quantity to be found in milk and that average quantity may vary within limits ranging from 81 to 91. The average total solids found in milk is, according to investiga- tions carried on in England, Germany, and America in over 120,000 analyses, 12.66, and they may vary from 7.2 to 18. 9.
The Acting Attorney-General---The point is whether the Magistrate was right in convicting upon the evidence before him.
The Acting Chief Justice-It will be time, when you have a re-hearing, to bring forward that evidence. The question is whether the Magistrate was right in convicting on the evidence before him. If there had been no opportunity of calling witnesses before the Magistrate it would have been another matter.
Mr. Francis-I think your Lordship should take into consideration that this class of case has been extremely rare in the colony, and that there are no materials at hand to go upon. I also ask your Lordship to bear in mind there is no provision here as there is in England for furnishing the accused with a portion of the specimen taken in case he should like to have it analysed himself.
The Acting Chief Justice-If he had asked for it and been refused it would have been different.
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Mr, Francis-But he was not told. He did not know who bought the milk. It was taken away and he did not know where it went.
The Acting Chief Justice-It was a bottle sealed with Mr. Kennedy's seal and it was unsealed by the analyst.
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Mr. Francis-There is a certain amount of evidence of course fairly sufficient to show the identity of the milk obtained from Mr. Kennedy and that which was submitted for analysis. But that same evidence would he valueless in England, where precautions are laid down as to conditions preceding any con- viction. As soon as the milk is bought the man must be told that it is for the purpose of analysis and a portion of it must be given back for the purpose of being analysed. I ask you if similar precautions should not be taken here, where there are infinitely greater difficulties and where we are unaccustomed to this class of
case.
The Acting Chief Justice-What was to prevent Mr. Kennedy asking Mr. Crow to see with his own eyes a quantity of milk taken from a cow, selecting any cow he liked, see the
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