Principles applicable in the Colony. By whom attainable. Paley 409. Of absolute Mode of application. Appeals from Justices Act, 1867," secs. 30 and 32, alludes to certiorari as a mode of proceeding applicable in New Zealand. The 12th section also impliedly assumes the same thing, as it provides that no writ of certiorari or other writ shall be required for the removal of a conviction or order in case of an appeal by case stated under the First Part of the Act. § 615. At all events, the principles illustrated in England by the right to the use of the writ of certiorari are fully applicable in the Colony. § 616. A certiorari is always obtainable by the prosecutor, even when by distinct terms a Statute declares that proceedings shall not be removed by that writ. § 617. The writ at the suit of the Crown, either when applied for by the Attorney-General ex officio, or by a private prosecutor, is of absolute right; although when issued on the application of an individual prosecutor it may be suspended on cause shown. It is in the discretion of the Court to grant or refuse the rule to a defendant. § 618. An application for a rule nisi in Court, or for a summons by a Judge at Chambers, to show cause why the writ should not issue, is the ordinary mode of commencing the proceeding; and although a rule nisi only be granted, Argument on the argument on that rule ordinarily settles the case; and if it be made absolute after argument, the conviction is quashed almost as a matter of course, when afterwards brought up on the certiorari. rule nisi or summons. Quashing. Practice in In cases, in New Zealand, where the conviction or order New Zealand. is already filed in the Court, and can be either produced or identified by affidavit, it would appear that the rule or summons might be issued for quashing it forthwith, and that it might be quashed accordingly by a rule absolute without any writ of certiorari. Objections § 619. The objections to the conviction should be set out set out in rule. in the rule nisi or summons; and it is expressly provided by Justices Act, 1867, s. 30. "The Appeals from Justices Act, 1867," s. 30, that no Appeals from objection on account of any omission or mistake in any such conviction or order shall be allowed, unless specified in the notices of appeal or for the rule for issuing a certiorari. defects when case proved. $620. The same section of the Act provides, that in case Amending of any objection being made on a return to a writ of certiorari [or, as it would seem, on showing cause against the Ibid. issue of the writ], on account of any omission or mistake in drawing up the conviction or order, if it shall appear to the Court that sufficient grounds were in proof before the Justices to have authorized the drawing up of the conviction or order free from the omission or mistake, the Court may amend, and adjudicate as if no such omission or mistake had existed. § 621. The right to apply for a certiorari is suspended Suspense of when both parties have the right of appeal and a fixed time is given for bringing the appeal, but not otherwise. right to certiorari. Paley 414. refuse. § 622. The Court may refuse to grant a certiorari, where Court may the ground alleged for it is more properly the subject of appeal, or if the objection was one which ought to have been taken at the hearing. Court. § 623. It seems unnecessary to detail here the practice Practice in of the Supreme Court respecting further proceedings on the Supreme writ of certiorari. By the rule of Court, Reg. Gen., May, 1859, rule 10, it is expressly provided that the practice of the Superior Courts in England with regard to the writ of certiorari and proceedings thereon, may be followed, as far as they can be, consistently with the other rules of the Court, and the laws of the Colony. 194 Definition of indictable offences. Definition of indictment. Distinction between felonies and misde meanours. CHAPTER VII. INDICTABLE OFFENCES. INTRODUCTORY. § 624. Indictable Offences, as the term implies, are those offences in respect of which the procedure by indictment can be adopted; and all offences coming within the general descriptions of felony (which includes treason), and of misdemeanour, (unless, in the latter case, the offence is by Statute made punishable in a summary manner,) and all attempts to commit such felonies and misdemeanours, are indictable. § 625. A Bill of Indictment is a written accusation, specifically charging a particular person, or particular persons, with such an offence as above mentioned; and it is preferred before a Grand Jury, (1) who, if satisfied by evidence on oath that there is good ground for putting any party charged thereby, on his trial for the offence specified therein, find and present to the Court which they have been summoned to attend, a "True Bill;" whereupon the document becomes an "Indictment," upon which the accused is afterwards arraigned, and to which he is in due course called upon to plead in open Court. § 626. The distinction between felonies and misdemeanours is of great practical importance, although the original reasons for making it are scarcely applicable to modern times. The only adequate definition of felony is, "an offence which at the Common Law occasioned a total forfeiture of either lands or goods, or both, and to which capital or other punishment was superadded." (1) By " "The District Courts Act, 1858," the Attorney-General or a Crown Prosecutor is substituted for the Grand Jury in cases to be tried at such Courts; and by "The Disturbed Districts Act, 1869" (s. 9), an information presented at a special Sitting of the Supreme Court held under the Act, is to be deemed an Indictment in all respects, as if found by a Grand Jury. § 627. Misdemeanours are offences which do not occasion Misdemeanany forfeiture of property to the Crown. ours. § 628. Attainder (1) for treason still causes forfeiture of Forfeitures. land and goods; conviction of felony causes forfeiture of goods; and attainder of felony is followed by a forfeiture of certain interests in land also. This distinction of offences, therefore, must for this, as well as for other reasons which will presently become apparent, be carefully noticed. N.B.-The Alphabetical Digest will be found to mark the distinction in every case. felony and misdemeanours. Among the most common felonies are murder, larceny, Examples of burglary, forgery, arson, rape; and among the most common misdemeanours are, obtaining money under false pretences, perjury, common, and some kinds of aggravated, assaults, &c. Definitions of most of the offences punishable by indictment will be found in the Digest. Every breach of a Statute which enjoins or prohibits the doing of any thing, without specifying the penalty, is a misdemeanour; and every attempt, not resting merely in intention, to commit an offence, whether felony or misdemeanour, if not made a felony by Statute, is a misdemeanour. duties of Justices. § 629. The duties of Justices of the Peace with respect to Outline of indictable offences are of a ministerial and not of a judicial character (2): and they refer to the receiving of informations; the summoning or apprehension of the party accused; the preliminary examination into the charge; the summoning, taking, and returning the depositions, of witnesses; the bailing or remanding of the accused; the discharging of the accused, or his committal for trial; or holding him to bail to appear at a Court of competent jurisdiction, to be tried; and the binding over the prosecutor to prosecute, and the witnesses to give evidence, at the trial. (1) Attainder takes place on judgment of death or outlawry after conviction. (*) In England, the Justices have, moreover, jurisdiction when assembled st the Quarter Sessions, to try certain classes of indictable offences. These various duties are now performed under the provisions of "The Justices of the Peace Act, 1866," secs. 47 to 76 inclusive, which are principally taken from the first of Sir John Jervis' Acts, the 11 and 12 Vict. c. 42. Before proceeding to analyze those sections, it will be necessary to call attention to the principles of the Common Law, and the provisions of certain other Statutes, with respect to the apprehension of offenders without warrant. At Common For misde meanour. For felonies. By private persons. APPREHENSION WITHOUT WARRANT. 630. In considering the cases in which an offender may be apprehended without warrant, a distinction is to be made between the doctrine of the Common Law, and the provisions of Statutes on the subject: and the Common Law first claims attention. § 631. Although, as has been stated in a former part of this work (C. IV.), Justices and Constables may apprehend persons for offences committed in their presence, involving breaches of the peace, which might be punished as indictable misdemeanours, the Common Law does not ordinarily permit the apprehension of persons who have committed misdemeanours, without a warrant from competent authority. § 632. But persons who have committed or are suspected to have committed felony, are liable, at Common Law, to be apprehended without any warrant. There is, however, a substantial difference in this respect between the powers of private persons and those of officers or Justices. § 633. Private persons of full age (and, á fortiori, Justices and Peace Officers), who are present when any felony B. 2, c. 12, s. 1. is committed, or dangerous wound given, are not only Hawk. P. C. entitled, but bound, on pain of fine and imprisonment, to apprehend the offender, and to take him before a Justice or give him into charge of a constable; and in such case, private persons may justify breaking open doors in pursuit of such offender. |