S.C. 1902.

AB KAN

v.

Cox.

section 4, each of the appellants was liable to a term of imprisonment exceeding three months. Section 6 of "The Indictable Offences Summary Jurisdiction Amendment Act, 1900," therefore applies.

[Skerrett objected to this point being raised on appeal.] [STOUT, C.J.-I will take a note of the objection.]

Reg. v. Davies (1). Subsection 2 of section 6 is mandatory: Paley on Convictions (2). The offence struck at by section 4 of "The Gaming and Lotteries Act, 1881," was, before the Criminal Code at all events, an indictable offence, and it is submitted it is so still.

[STOUT, C.J.-I suppose you will have to contend that section 42 of "The Gaming and Lotteries Act, 1881," is impliedly repealed by the Act of 1900.]

The Act of 1900 has to be read as part of "The Justices of the Peace Act, 1882"; and, in any case, section 6 of the Act of 1900 overrides section 42 of the Act of 1881.

Skerrett, for the respondent:

Hamilton v. Walker(3) does not apply to a case of this kind. In that case there were two separate hearings. There is no authority that two charges cannot by consent of the parties be heard together. "Res judicata" means previously determined here there was no previous determination. An objection that there has been a mistrial, and that there was no jurisdiction to convict, cannot be taken on a general appeal: Groves v. Somerville(4); Gormley v. McIntyre(5); Sweetland v. The Turkish Cigarette Company(6). On a general appeal this Court is not concerned to inquire into the validity of the proceedings; it simply takes the information and rehears. There should be certiorari to take this point. Section 6 of the Act of 1900 does not apply at all. It is taken from section 17 of "The Summary Jurisdiction Act, 1879," 42 & 43 Vict., c. 49, which was an amendment of the Jervis Act of 1848, relating to the whole summary jurisdiction of Justices. That is not the way in which it has been introduced into our Act. The titles of our Acts of 1894 and 1900 show that they were intended to apply only to indictable offences triable summarily. The title of an Act has a substantial bearing on its construction: Hardcastle's Statute Law(7); Brett v. Brett(8);

Shaw v. Ruddin(1). Section 6 of the Act of 1894 has been treated by the Legislature as applying only to such offences. The generality of the words of section 6 of the Act of 1900 must be restrained by the purview of the whole Act: Cox v. Hakes(2); Hardcastle's Statute Law(3); McKenzie v. Hogg(4). There are indictable offences (assaults and thefts) which are punishable under the Act of 1894 with imprisonment exceeding three months. "Magistrate" does not include "Justices": Section 2 of the Act of 1894. Indictable offences punishable summarily with more than three months' imprisonment are triable by a Magistrate and not by Justices. It is not clear here that two of the accused are charged with any indictable offence: "The Criminal Code Act, 1893," sections 143 and 144. [Jellicoe. They would be aiders and abettors, at all events.] That may be, but a decision is desired on the main point. It is not contended, in the face of Reg. v. Cockshott (5), that the Magistrate was not bound to give the caution in cases where the section applies.

Jellicoe, in reply:

"Magistrate," in section 6 of the Act of 1900, covers two Justices: Section 4 of the Act of 1894. Section 12 of the Act of 1900 must certainly be treated as part of "The Justices of the Peace Act, 1882."

It was agreed that the above points should be first disposed of, and the appeal on the facts taken afterwards if necessary. Cur. adv. vult on the points argued.

STOUT, C.J.:

These three appeals were heard together, as the points raised were applicable to them all. The appeals are all general appeals, and not on point of law only. The forms of appeal are all defective. Neither the informations nor the convictions were properly set out.

The first question raised was, can the appellant raise points of law that show that no offence was charged, or proved, or found, or that there was no proper trial? Section 252 of "The Justices of the Peace Act, 1882," provides that it is only when "the facts of the case" are in question that a rehearing of the evidence is necessary. In my opinion a general appeal is not limited to mere questions of evidence. Any objection that can be made is open, whether on law or fact, and a notice

(1) 9 Ir. C.L.R. 214.

(2) 15 App. Cas. 506, 526.

(3) 2nd ed. 198.

(4) 13 N.Z. L.R. 158.

(5) 19 Cox C.C. 3; [1898] 1 Q.B. 582.

S.C.

1902.

AH KAN.

V.

Cox.

S.C. 1902.

AH KAN

V.

Cox.

of the appeal may be amended, if necessary, in order to raise all points: Sections 255 and 256.

The points taken were that the information in two of the cases disclosed no offence, and, in all cases, that another information, heard along with these, was dismissed, and that the decision in Hamilton v. Walker(1) applied; and, further, that the provisions of section 6 of "The Indictable Offences Summary Jurisdiction Amendment Act, 1900," had not been complied with. I do not know why police officers in drawing informations should not follow the words of the statute instead of attempting to improve the phraseology of the Legislature. The words used were "did unlawfully assist one Ah Kan in "conducting a gaming-house." It may be that these words. imply some act done by the accused. It is clear that, if the evidence showed that some act was done by the accused, that would have brought them within the statute, and the Magistrate could have so convicted them, and, if necessary, the conviction could have said so. And the power of amendment that this Court has could have set matters right.

As to the other ground, that the judgment in Hamilton v. Walker (1) applies, I am of opinion that if all the cases were heard together by consent, and one was dismissed, the reason for the rule in that case is inapplicable, and on that ground the conviction cannot be disturbed.

The important point is whether section 6 of "The Indictable Offences Summary Jurisdiction Act Amendment Act, 1900," applies to all cases tried before a Magistrate, whether the offences are specified in "The Indictable Offences Summary Jurisdiction Act, 1894," or not. The words of the section are general, and on their face include all offences tried summarily. They are, "A person, when charged before a "Magistrate with an offence in respect to the commission of "which an offender is liable on summary conviction to be im"prisoned for a term exceeding three months, and which is not "an assault," &c. It has been held in England that the same provision (section 17, 42 and 43 Vict., c. 49) applies to all summary offences, and not merely to indictable offences to be tried summarily: Reg. v. Cockshott (2). That was a conviction under "The Betting Act, 1853" (16 & 17 Vict., c. 119), and under that statute it was an offence punishable summarily by Justices. So under our Gaming Act the offences charged are punishable summarily. And His Honour Mr. Justice

(1) [1892] 2 Q.B. 25.

(2) 19 Cox C.C. 3; [1898] 1 Q.B. 582.

Conolly has this year held that the section applied to an offence not indictable: See Rex v. Reid (1), decided in January this year. The case was not, however, argued.

It was argued that section 6 should, however, be confined to indictable offences tried summarily, and that the word "indictable" should be read into the statute before "offence." Ordinarily the wide scope of an enactment will not be limited unless there is something in the context that shows that the words were to be used in a limited sense: Reg. v. The Justices of Liverpool, per Bowen, L.J.(2). This section was to confer a right on accused persons, and I do not see why the general words should be limited to indictable offences only. That would be to make in New Zealand the same words have a different meaning from what they have in England. The history of the legislation, and the words of the 1894 statute, militate against such a construction.

"The Justices of the Peace Act, 1882" (sections 176 to 194, inclusive, and the Second Schedule) provided for the trial of indictable offences summarily. The provisions were similar to those in 42 & 43 Vict., c. 49. "The Indictable Offences Summary Jurisdiction Act, 1894," repealed those provisions in the Justices of the Peace Act (see section 25), but declared. (section 1) that the Act was to be "deemed incorporated with

The Justices of the Peace Act, 1882." The 1894 Act and the amending Act of 1900 must therefore be read as if part of "The Justices of the Peace Act, 1882," and if so read how can the provisions of section 6 be applied to only one class of offences tried summarily when there is no limitation in the section?

The English Act 42 & 43 Vict., c. 49, was an amendment of 11 & 12 Vict., c. 43, just as the 1894 and 1900 Acts are amendments of "The Justices of the Peace Act, 1882." Nor does the title of the 1894 Act help in the construction of the 1900 Act. It is said to be "An Act to define the Summary "Jurisdiction of Justices of the Peace with respect to In"dictable Offences." The title of the 1900 Act is "An Act "to amend the Law relating to Summary Jurisdiction with "respect to Indictable Offences." The titles are subject to the fact that the Acts are deemed to be part of the Justices of the Peace Act, and contain provisions substituted for those that were in the Justices Act. Further, there are provisions that do not relate to the exercise of summary jurisdiction (see sections 13 to 17, inclusive, of the 1900 Act).

(1) 20 N.Z. L.R, 604,

(2) 11 Q.B.D. 638, at p. 649,

8.C.

1902.

AH KAN 2'.

Cox.

S.C. 1802.

AH KAN

v.

Cox.

The 6th section uses the words "when charged before a Magistrate"; and a "Magistrate," as defined in the 1894 statute, means a Stipendiary Magistrate appointed under "The Magistrates' Courts Act, 1893." The anomaly may therefore exist that if the case is tried by a "Magistrate" the accused has the rights of trial by a jury, but not if tried by two Justices. This point is not before me in this case, and I am not called on to say whether two Justices can be deemed a Magistrate in the meaning of the section: See Rex v. Reid(1), decided in January by His Honour Mr. Justice Conolly. But if they cannot there must be a blunder. The Court must nevertheless interpret the statute as it finds it. The blunder is not got rid of by declaring that the word "indictable" must be inserted before "offence." If that were done the Justices could still proceed to try offenders even if the offender desired a jury, and a Magistrate could not do so. It is for the Legislature, not for the Court, if this is a blunder, to set it right. It may be that the Legislature may not have seen what the effect of this section would be, for it may greatly increase the work of the Supreme Court and the expenses of the administration of justice. I must, however, hold that if any offence is punishable with more than three months' imprisonment the person accused, at all events if before a Magistrate, may demand a jury, and that the Magistrate must conform to the directions in subsection 2 of section 6.

The result is that the accused have been found guilty improperly, and the appeal must be allowed and the conviction quashed.

The question whether the point should not have been taken by motion to quash the conviction, and not. by appeal, is a doubtful one. To hold, however, that a mistrial could not be taken by general appeal would be to go beyond any case that has been cited. It may be that Barker v. Palmer(2) should not be followed if there is a complete absence of jurisdiction, but that is not this case. Barker v. Palmer was, however, followed and approved of in Sweetland v. The Turkish Cigarette Company(3). Appeals allowed. Convictions quashed.

Solicitors for the appellants: Findlay, Dalziell, & Co. (Wellington).

Solicitors for the respondent: Skerrett & Wylie (Wellington). (3) 47 W.R. 511.

(1) 20 N.Z. L.R. 604.

(2) 8 Q.B.D. 9,