the progress of the cage up and down the shaft. (See also Cowie v. The Berry Consols Gold Mining Co. (24 V.L.R. 319). The next question is, in what quantities is the ventilation to be supplied? The Rule provides for a minimum of not less than 100 cubic feet per minute for each man, boy, and horse employed in the mine. It is certainly desirable, if it can be done by reasonable construction, so to construe the Rule as to secure definiteness in its operation, and although this interpretation is not free from all difficulty, I think that this object can be secured by reading into the Rule the words, " from time to time," which is the obvious intention, and then fixing upon two welldefined stages in the ordinary working of the mine, as disclosed in the evidence before us. Those stages are the termination of the shift immediately preceding the temporary suspension of the ordinary operations, and the commencement of the shift immediately following the suspension. These being adopted, then during the suspension the quantity of ventilation should be based upon the number of men, boys, and horses actually present and employed in the mine during the former shift, and on resumption of work, upon the number of men, boys, and horses actually present and employed in the mine during the latter shift. In using the word "employed," I do not adopt the position submitted on behalf of the appellant, that "employed' means the number of men and boys on the books of the employer, irrespective altogether of their actual presence in the mine and working. To accept this would mean that if a mine were fully worked in three shifts of 200 men and boys each, the minimum ventilation would have to be on the basis of 600, and not of 200, and would thus amount to 60,000 cubic feet of air per minute instead of 20,000 cubic feet. I do not think the language of the Legislature would warrant that interpretation.

The decision of the Police Magistrate that the part of Rule 1 of s. 47, cited by him, only made it necessary to produce 100 cubic feet of air per minute for each man, boy and horse employed in the mine whilst such man, boy and horse was actually present and working in the mine, was, in my opinion, erroneous.

PRING, J. In this case the information charged that "on the 24th February the defendant was the manager of a mine to

1905. WATSON

v.

BROUGHALL.

Cohen J.

1905. WATSON

v.

Pring J.

which the Coal Mines Regulation Act, 1902, applied, to wit, the Vale of Clywdd Colliery, and did unlawfully fail to comply with BROUGHALL. General Rule 1 in s. 47 of the said Act, in that by reason of the ventilating fan not being kept running an adequate amount of ventilation was not constantly produced in the said mine to dilute and render harmless noxious gases to such an extent that the working places of the shafts, levels, stables, and workings of the said mine, and the travelling roads to and from those working places should be in a fit state for working and passing therein." The Magistrate held that Rule 1 in s. 47 only makes it necessary to produce 100 cubic feet of air per minute for each man, boy, and horse employed in the mine whilst such man, boy, and horse was actually present or working in such mine. In other words, that in the case of a temporary stoppage of work from Friday to Monday the Rule did not apply.

One of the great objects of the Coal Mines Regulation Act, 1902, was undoubtedly the preservation of the lives and the health of the miners. The Rule in question takes the place of Rules 2 and 3 in s. 12 of the Coal Mines Regulation Act, 1876 (39 Vic. No. 31). Those Rules were considered by the Court in Ex parte Ross (17 N.S.W.L.R. 212) In that case it was held that it was not necessary that 100 cubic feet of air per minute for each man should pass up to the face where the men were actually at work. That was because Rule 3 only required the air to sweep past each working place. Rule 1 of the Act of 1902 remedies this defect in the law by requiring the air to be forced as far as the face of each working place.

A careful analysis of the Rule shows, I think, that it provides for three things: (1) what is to be produced; (2) for what purpose it is to be produced; and (3) the means by which that purpose is to be effected. Now what is to be produced is described in these words, "An adequate amount of ventilation shall be constantly produced." What is "adequate" is defined further on in these words, "The ventilation so produced shall be the supply of pure air in quantity not less than 100 cubic feet per minute for each man, boy, and horse employed in the mine." The purpose is "to dilute and render harmless noxious gases to such an extent that the working places, &c., shall be in a fit

1905.

WATSON

บ.

Pring J.

state for working or passing therein." Then the means for effecting that purpose are that "the air in the proportion above described, but with as much more as the inspector shall direct, BROUGHALL. shall sweep along the airways, &c." I think the object of the Rule was to ensure that the air in the mine should be kept constantly sweet and harmless. The history of coal mining unfortunately supplies many examples of explosions taking place without apparent cause. The Legislature, I think, had this in view, and consequently determined that drastic steps should be taken to minimise the dangers to which miners are exposed. The use of the word "constantly" in my opinion shews that it was not intended that a mine in which work is stopped for a day or two should be allowed to become foul and dangerous. The construction contended for by the respondent appears to me to eliminate the word "constantly" from the Rule. The latter part of the Rule, on which so much stress was laid merely directs how the air is to be used, and ensures that when miners are at work the air shall be forced to the spot where they are working, and not merely along the airways, as was the case under the Act of 1876. The cases of Knowles v. Dickinson and Plant v. Cheadle, to which the Chief Justice has referred, are, I think, strong authorities in favour of our construction of the Rule.

I am of opinion that the decision of the Magistrate was

erroneous.

Appeal sustained.

Attorney for the complainant: The Crown Solicitor.

Attorney for the respondent: S. M. Stephens.

1905. October 28.

Owen J. Cohen J. and Walker J.

R. v. MIDWINTER.

Criminal law-Admission of immaterial evidence-Effect of-Direction to jury.
Where immaterial evidence was admitted, but the Judge directed the jury to
disregard the evidence, held, that the conviction could not be set aside. R. v.
Gibson (18 Q.B.D. 537) distinguished.

Exhibit-Withdrawal from jury.
The Judge cannot withdraw an exhibit from the jury.

CROWN CASE RESERVED.

Special case stated by Pring, J. "The prisoner was convicted before me at the last Dubbo Circuit Court, on the 5th October, on an indictment charging him with the murder of Frank Rees on the 18th October, 1904. It appeared by the evidence that Frank Rees had been working at Dunlop Station, near Louth. He left there on the 6th October, 1904, and on that day was paid his wages, amounting to 14l. 12s. 1d., by cheque.

"He arrived at Louth on the 15th October, and on the following day-16th October-the prisoner also arrived at Louth. He and Rees then became acquainted, and on the morning of Tuesday, 18th October, they left Louth together to walk to Bourke, about 60 miles distant. On the 28th October the dead body of Rees was found in a billabong or waterhole about 11 miles from Louth on the Louth-Bourke road. The prisoner arrived at Bourke on Saturday, 22nd October, and, according to his own statement, remained there for a week. In the course of the Crown case the cheque was put in as an exhibit without objection. The Crown prosecutor, Mr. Mason, then called a witness named Prentice, who was the accountant at the Bourke branch of the Commercial Bank-on which the cheque was drawn-and, referring to it, asked him the question, 'On 24th October can you say whether or not you had that cheque in your hands?' Mr. Rolin, counsel for the prisoner, objected to the question on the ground that the prisoner had not been

1905.

R.

บ.

connected with the cheque, and that the evidence was, therefore, irrelevant. I pointed out to Mr. Mason that unless he could connect the prisoner in some way with the cheque, the question MIDWINTER. was immaterial, and I should reject it. He said he thought he could do so, and I then allowed the question, at the same time pointing out to the jury that if the Crown failed to show that the prisoner had anything to do with the cheque the evidence would be quite irrelevant.

"The witness answered yes.' Mr. Mason then asked, 'What did you do with it?' Mr. Rolin again objected, and I allowed the question. The witness stated that he cashed the cheque. No evidence was given in any way connecting the prisoner with it. In summing up I directed the jury that the cheque and the evidence of Prentice were entirely irrelevant, and that they should not take either one or other into consideration, pointing out to them that the cheque had not been traced to the prisoner, nor was there any evidence to show that he ever knew of its existence. And I further said that in my opinion the evidence of Prentice should not have been pressed by the Crown. When the jury retired to consider their verdict all the exhibits, including the cheque, were handed to them, no objection being taken to this course. After verdict and before sentence Mr. Salenger, solicitor for the accused, in the absence of Mr. Rolin, asked me to reserve the point that the cheque should not have been admitted in evidence nor submitted to the jury on their retirement to consider their verdict, but should have been withdrawn.'

"As I have already stated no objection was made to the admission of the cheque in evidence. Nor was I asked to reserve any question as to the admissibility of the evidence of Prentice. Under these circumstances I am rather at a loss to know what question I am to submit to the Court. It would appear to be this-whether the cheque which had been admitted in evidence without objection should have been submitted to the jury on their retirement?"

Rolin, for the prisoner. If inadmissible evidence is admitted the conviction will be set aside, although the evidence is not objected to: R. v. Gibson (18 Q.B.D. 537). Further, the cheque