Reg v Beauclerc [1900] FJLawRp 1; [1875-1946] 3 FLR 35 (30 April 1900)

[1875-1946] 3 FLR 35

SUPREME COURT OF FIJI

Criminal Jurisdiction

REG

v

BEAUCLERC

Berkeley, C.J.

April 30, 1900

Criminal procedure - question reserved for further consideration - whether question can be reserved after verdict recorded - whether right of reply by Attorney-General is applicable to the acting Attorney-General of Fiji.

A conviction having been entered against the prisoner on the verdict of a jury, the prisoner moved to quash the conviction on certain questions reserved at the request of prisoner's counsel, three questions being reserved during the trial and before verdict and one after verdict recorded. The questions were reserved under s.44 of the Criminal Procedure Ordinance, 1875, and related to:-

(1) A point of evidence.

(2) Amendment of information in several particulars.

(3) Right of reply of acting Attorney-General.

(4) General ground as to whether prisoner was rightly convicted.

HELD –

(1) The Court had no jurisdiction to reserve a question after the conclusion of the trial.

(2) The question as to order of speeches depends on a rule of practice and is not a question of law on which a conviction will be quashed.

Obiter Dictum - The Acting Attorney-General of Fiji has the same right of reply as is accorded in England to Her Majesty's Attorney-General.

Note - The remaining points dealt within the judgment are no longer of interest.

[EDITORIAL NOTE - S.44 of the Criminal Procedure Ordinance, 1875 (Rep.) was as follows:-

"The Chief Justice may in his discretion reserve for further consideration any question of law which may arise upon the trial of any information and in case the person tried shall be convicted may postpone judgment until such question shall have been considered and decided and in the meanwhile may commit the person convicted to prison or take a recognizance of bail, with one or two sufficient sureties and in such sum as he shall think fit conditioned to appear at such time or times as he shall direct and to receive judgment and upon such further consideration of the question so reserved as aforesaid it shall be lawful for the Chief Justice to affirm or quash the conviction."

Corresponding provisions are to be found in the Criminal Procedure Code, ss.312 and 313 (Cap. 4, Vol. 1 page 151.) As to right of reply see now Criminal Procedure Code, s.149.]

Cases referred to:-

(1) Reg v Christie [1858] 7 Cox, cc 506; 14 Dig 294.

(2) Reg v Stubbs [1855] 25 LJMC 16, 7 Cox, cc. 48; 19 JP 760; 14 Dig 461.

MOTION to quash conviction. The facts are fully set out in the judgment.

BERKELEY, C.J. - This was a motion to quash the conviction of a prisoner found guilty on an indictment charging him with larceny as a public servant.

The motion is made on certain questions reserved by me for further consideration three of which I reserved at the request of counsel for prisoner during the trial and one of which I reserved at the request of the prisoner's counsel after the verdict of the jury finding the prisoner guilty had been recorded.

The authority to reserve a Crown Case for further consideration is conferred by s.44 of the Criminal Procedure Ordinance, 1875^[1] by which the Chief Justice may in his discretion reserve for further consideration any "question of law" which may arise "upon the trial" of an information and in case the person tried "shall be convicted" may postpone judgment until such question "shall have been considered" and upon such further consideration may affirm or quash the conviction. It is to be observed that the jurisdiction conferred by the 44th sec. to reserve any "question of law" is confined to questions of law arising upon the trial and that the jurisdiction to further consider a case is confined to the cases of persons who shall be convicted after a question of law has been reserved by the Chief Justice. The words of the section which confer jurisdiction to reserve questions for further consideration are explained. The words are "May reserve any question of law which may arise upon the trial" and "in case the person tried shall be convicted". The words "shall be convicted" follow it will be observed the words "may arise upon the trial" and to my mind clearly show that the jurisdiction conferred by the section is confined to cases of a conviction following after a question has been decided by the Judge at the trial and reserved by him for further consideration.

The questions reserved by me were as follows. Whether a certain "Statement" compiled by Mr. Forth the Colonial Auditor was wrongly admitted in evidence.

Whether an indictment might be amended more than once.

Whether the Acting Attorney-General of Fiji has the right of general reply when a prisoner does not call witnesses.

Whether having regard to the indictment and the evidence the prisoner was properly convicted of larceny.

The first three questions were reserved by me at the request of the prisoner's counsel during the progress of the trial. The fourth question was reserved by me after the trial had concluded, after, that is to say, the prisoner had been found guilty and the verdict of the jury had been recorded.

On full consideration I am of opinion that I had no jurisdiction to reserve the fourth question submitted for further consideration. It seems to me clear that the 44th sec. of the Criminal Procedure Ordinance contemplated that before any question of law is reserved by the presiding judge the point upon which the question arises should have been taken upon the trial and a decision delivered thereon by the judge. The present case is an instance of the necessity for insisting upon such a requirement, for the point taken after the conclusion in this case upon which the question arises is that though the evidence may show that the prisoner has been guilty of embezzlement it negatives the charge of larceny - the money charged as having been stolen having been left in prisoner's possession and sole control from the time when he first received it till he appropriated it to his own use.

Had that point been taken upon the trial the presiding judge would have directed the jury that if they considered the prisoner not guilty of larceny but guilty of embezzlement he would not be entitled to be acquitted but that the jury should find him not guilty of larceny but guilty of embezzlement. This point however was not taken till after the trial had concluded. I am therefore on this motion unable to pay any regard to the point raised. I had no jurisdiction to reserve that question for him for the reason I have stated.

The point raised on question No. 2 was not argued on the motion, learned counsel for the prisoner stating that he was content merely to raise the point without arguing it. In my opinion the point is not sustainable and indeed is not arguable, it being clear that an indictment may be amended in as many separate particulars as may be necessary.

With regard to the point raised on question number one, I am of opinion that the statement referred to was properly received in evidence as an admission after the letter of the prisoner of the 5th April, 1899, had been given in evidence. With regard to the point raised on question number three I am of opinion that the Acting Attorney-General of Fiji has the same right of reply as Her Majesty's Attorney-General. The Attorney-General of Fiji has always since the foundation of the Colony been acceded the same right in this respect as is accorded in England to "Her Majesty' s Attorney-General" and the Acting Attorney-General has in this Court the status of the Attorney-General. There is no true analogy between the Attorney-General of this Colony and the Attorney-General of the County Palatine of Lancaster, for the Attorney-General of Fiji is "Her Majesty's Attorney-General" while the Attorney-General of the County Palatine is not.

The case Reg v Christie cited by learned counsel for the prisoner has therefore in my opinion no application here - however even suppose the point to be a good one the conviction of the prisoner could not properly be quashed on that ground for at most it relates to a question of practice only and not of law and the presiding judge has by s.44 of the Criminal Procedure Ordinance only jurisdiction to reserve questions of law for further consideration on this point the case Reg. v Stubbs 25 Law Journal MC 16 applies. In that case it was held that it is not a rule of law but of practice only that a jury should not act on the uncorroborated testimony of an accomplice and that if a jury choose to act upon such evidence the conviction cannot be quashed as bad in law. That case is clear authority for my holding that this conviction could not be quashed on the question whether the Acting Attorney-General of Fiji has the right of general reply when the prisoner calls no witnesses.

For the right of reply is not a rule of law but of practice only. This motion is therefore dismissed and the conviction of the prisoner is affirmed.

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^[1] Vide Editorial Note.