The Right Honourable Sir Francis H. D. Bell, P.C., G.C.M.G., K.C.,: His Life and Times
Chapter XVII. — Bell as Attorney-General—Problems of Bench, Bar, and Juries
Bell as Attorney-General—Problems of Bench, Bar, and Juries.
He defends the Bar—Argument with the Judges—The rights of advocates—Judges' salaries—Jury reform and other problems.
Early in 1918 Bell became Attorney-General in succession to (Sir) Alexander Herdman who had left politics to become a Judge of the Supreme Court.
Soon after Bell's appointment an incident occurred in which he felt called upon to maintain the advocate's right of freedom of speech in the interests of his client. The correspondence dealing with this matter is very lengthy and important, but the substance of it may be stated as follows.
An Auckland barrister, Mr. R. A. Singer, complained to the Auckland Law Society against the conduct of Judge Edwards in the case of Rex versus Clark, which was a trial for arson at Wanganui. At this trial Singer had represented the accused, and in his address to the jury had tried to impute the blame for the fire to one of the Crown witnesses. The actual circumstances necessarily involved that either the accused or the person indicated by Mr. Singer caused the fire.page 154
Judge Edwards reproved Mr. Singer for accusing an innocent man whom he knew to be innocent, and said that his defence of the prisoner was contrary to all traditions of the Bar and that the course pursued by him was disgraceful and infamous.
Bell, as Attorney-General, wrote to Judge Edwards, setting out the complaint of Singer:
"Such comment," he said, "by a Judge upon the conduct of a practitioner does appear, as the Council of the Auckland Law Society pointed out, to involve a duty on the governing body of the profession either to take proceedings against the practitioner in consequence of the comment, if justified, or to aid the practitioner in asserting his innocence if it should appear that the comment was mistaken."
After consulting the other Judges in Wellington, Judge Edwards replied, quoting legal authorities as to the grave objections to the conduct of Judges being made the subject of cross-examination and comment:
"If the Judge is to be called upon by any tribunal save Parliament to account for what he has felt a duty to say upon such an occasion, it is obvious that the administration of justice must be seriously impeded, and that innocent persons may with impunity be branded before the public by an unscrupulous counsel as being themselves the criminals."
He admitted that he had made the severe comments complained of, and quoted another case in which Singer had been reprimanded by another Judge for a similar attempt to impute the crime to an innocent person.
In reply to this, Bell claimed the right, at the request of a District Council of the Law Society or the New page 155Zealand Council, to be the medium of communication with the Judge.
"I feel sure that freedom of speech and of advocacy is recognized by the Bench to be the right of the Bar and the client. It is the duty of the Bar as a body in every Dominion of the Empire to defend and protect that right."
He showed how the Bar Council in England had been created, which every barrister may consult about his grievances, and claimed that in New Zealand the Council of a Law Society is both the Bar Council and the solicitors' representative body.
"The defence of a prisoner at the Bar," wrote Bell, "involves at least the suggestion of possibility that some one else other than the prisoner was the criminal. It was not, of course, your Honour's intention to lay down a general rule that the prisoner's counsel is not to make such suggestion of guilt against another person. I gather that your Honour would limit the rule to a denial of the right of the prisoner's counsel to suggest the guilt of a person against whom no evidence of guilt appears. If that be the limit then I would with respect and deference contend that your Honour's rule would unduly limit the right of the prisoner and the privilege of his counsel …
The privilege of free advocacy is unduly endangered."
He reiterated the right and duty of the counsel to communicate with the Judge in such cases.
To this Judge Edwards replied on behalf of the Judges that where the facts warranted it the advocate had the right to impute the crime to another person, or page 156to point out that another person was under suspicion, or that some other person might equally well have committed the crime, but there must be facts before the jury or something must be obvious from the nature of the case to justify such observations.
"The Judges not unmindful of the saying of La Rochefoucauld, 'Il s'en faut bien que l'innocence trouve autant de protection que le crime,' do say that no advocate can ever be justified in directly imputing the crime with which his client stands charged to another person unless there is evidence before the jury which reasonably justifies the imputation."
The Judges disputed the right of any Council of a District Law Society to represent the Bar or to arrogate to itself the right to adjudicate on a complaint against a Judge and to call on the Judge to give evidence:
"If anybody save Parliament had the right it was the Council of the New Zealand Law Society, which should satisfy itself there was reasonable ground before approaching the Judge."
Bell was prepared to give due respect and weight to the opinion of the Judges, but said:
"The ruling is apparently wide enough to mark as improper certain lines of cross-examination and address by counsel for a prisoner, which long experience of criminal procedure leads me to believe have not hitherto been regarded by the profession as exceeding the limits of honourable advocacy."
The dispute then went to the Council of the New Zealand Law Society, which passed a series of resolutions asserting briefly counsel's right to protect his client's life and liberty by the free and unfettered state-page 157ment of every fact, argument, and observation that can legitimately conduce to this end. But counsel should not impute the crime to another person wantonly or recklessly, unless the facts or circumstances given in evidence or rational inferences from them raise at the least not unreasonable suspicion that the crime might have been committed by the person to whom the guilt is imputed.
They made no pronouncement on Singer's complaint at this stage, as the District Law Society had not provided sufficient material to enable them to do so.
Bell agreed with these resolutions, but pointed out that they overlooked the right of cross-examination in order to elicit evidence pointing to another's guilt, and the Council agreed that this should be provided for.
The next step was that all the papers were sent by Bell to the general Council of the Bar in England, who concurred in the views of the New Zealand Law Society, with the addition of Bell's remarks about the right of cross-examination.
The final chapter of the whole dispute was that the Council of the New Zealand Law Society held a full inquiry, and, after setting out the facts, exculpated Singer and said that he had not exceeded his right or duty in the course adopted by him at the trial. They considered, however, that his client was properly convicted on convincing evidence. They did not think there was any justification for the assertion that Singer was aware of the innocence of the man he accused.
"In our opinion the thanks of the profession are due to the Attorney-General, Sir Francis Bell, for his page 158courageous, proper, and dignified defence of the privileges of counsel. The general principles for determining the propriety of counsel's conduct laid down by him in his correspondence with the Judges have been approved of by this Society and by the English Bar Council. His intervention in this matter has resulted in the institution, with the approval of the Judges, of a procedure whereby the rights of counsel can be safeguarded from unjustifiable aggression or attack."
The next incident, which relates to the salaries of Judges, did not occur till 1932, some years after Bell had ceased to be Attorney-General. But it is convenient to lay aside the chronological order of events in order to bring together problems of the Bench and Bar.
In 1932, New Zealand, in common with the rest of the world, was passing through an acute depression. The Government found itself compelled to make stringent reductions in all directions, including reductions in the salaries of public servants. Unemployment grew rapidly, and retrenchment was universal. Even the Governor-General made two or three voluntary self-imposed reductions on the grant and allowances allotted to him by statute. Under these circumstances an outcry was raised in political circles that the Judges of the Supreme Court should join in the common sacrifice and be compelled to submit to a reduction of their salaries.
At this time I was Attorney-General, and I pointed out at various meetings of Government supporters that the Judges' salaries were fixed by the Constitution Act page 159and could only be altered with the consent of the Imperial Parliament. In spite of this, feeling was running so high that even legal members of the Party demanded that we should legislate to reduce the Judges' salaries in the belief that the Imperial consent would be given. They also urged that pending this step an appeal should be made to the Judges to voluntarily offer to forego part of their salaries.
At this stage, Sir Francis Bell, who was out of office, published a powerful protest against the political agitation on foot. He pointed out that in the previous depression of 1922 the Public Expenditure Adjustment Act had expressly exempted the Judges from the general reduction in salaries. At that time he was Attorney-General and had insisted upon long established constitutional principles affirming the exceptional privileges essential to the dignity and independence of the Judges.
He set out clearly the historical necessity and reasons, quoting the Bill of Rights and Act of Settlement, and the fact that under section 65 of the New Zealand Constitution Act,
"It shall not be lawful for the said General Assembly by any such Act to make any diminution in the salary of any Judge to take effect during the continuance in office of any person being such Judge at the time of the passing of such Act."
In 1857 the Imperial Parliament empowered the New Zealand Parliament to amend or repeal any of the provisions of the Constitution Act, with certain exceptions, including section 65, relating to Judges' salaries.page 160
"It is therefore beyond question in law," he said, "that nothing but an Act of Parliament of the United Kingdom can empower the Government or Parliament of New Zealand to diminsh the statutory salary of any Judge of the Supreme Court during the tenure by that Judge of his office."
There was nothing new in the foregoing argument except the force and lucidity with which Bell restated it. But what followed was a brilliant refutation of the proposed appeal for a voluntary contribution by the Judges.
"It has been suggested," said Bell, "that the Judges may, without prejudicially affecting principle, voluntarily refund part of their salaries if influenced only by a natural desire to share in reduction imposed upon others in the service of the Crown.
"The Judges are not in the service of the Crown, though designated His Majesty's Judges, for they are not merely free from any direction of the Crown, but bound by their oaths to deny the right of the Crown to direct them. They are, moreover, the guardians for their successors of the principle established by the Act of Settlement. If the Judges, moved by any personal sentiment or influenced by public clamour demanding equality of sacrifice voluntarily surrender any part of their salaries, they make it difficult if not impossible for their successors in office in similar circumstances to refrain from following the precedent so initiated.
"I trust that those who now hold the pass which separates the judicial office from all other avocations, page 161those who have accepted the place which makes them the keepers of the pass, may not be induced in this crisis to surrender it."
This powerful argument had a widespread effect upon public opinion, and affords an excellent example of Bell's sound grasp of constitutional principles.
One of the ablest and most learned of Bell's contemporaries in the Legislative Council was the Hon. John MacGregor, who was a barrister by profession, and his frequent attempts to carry legal reforms called forth some of Bell's best speeches. MacGregor was a Scotsman of great force of character, an idealist, with an unusual mastery of legal principles and constitutional law. For many years he was a brilliant polemic writer on current politics, and his articles showed wide-reading and profound knowledge of the principles of political philosophy. He was the first real critic of the system of compulsory arbitration, and his pamphlet on this subject was widely sought for by European and American students. Among several important reforms which he succeeded in getting on the statute-book was the widening of the Divorce Law so as to place both sexes on an equality in the grounds available for divorce. With this reform Bell did not agree. He was also the author of the Legitimation Act, whereby an illegitimate child became legitimate by the subsequent marriage of the parents.
On one occasion when MacGregor was ill, Bell wrote to me:
"Thanks for the news of MacGregor—he is a fine fellow and a staunch friend and has quite a singular page 162place in the Legislative Council, holding genuine affection and respect from all the members. His judgment is very sound."
One of the reforms that MacGregor most insistently advocated was that relating to trial by jury. Again and again he brought in proposals to dispense with the necessity of unanimity in the jury's verdict. He collected many instances of the scandalous miscarriage of justice arising from the existing rule, and he urged that where ten out of twelve jurors agreed on a verdict, it should be accepted. In advocating this reform he quoted the practice in Scotland and elsewhere, and he obtained support for his proposals from nearly all the Judges on the New Zealand bench. On five separate occasions he persuaded the Legislative Council to pass the measure, but it has never yet become law.
On every opportunity Bell lent the weight of his powerful support to MacGregor's proposed reform.
"In a considerable proportion of cases," he said, "where a prisoner is charged upon indubitable evidence, when a verdict of guilty is not given, the reason is not that one of the jury has a reasonable doubt, but that one of them would not convict even though one came from the dead to attest. If ten men out of twelve arrive at a conclusion beyond reasonable doubt—for that is their obligation—that a prisoner should be convicted or acquitted, then that verdict ought to stand."
He pointed out that the great majority of the Judges were in favour of the change. That, of course, was not final, but could not be ignored.
"I myself," he said, "have had a longer experience page 163of the administration of criminal law than even their Honours on the Bench, as an officer engaged in the duty, not of obtaining convictions, but of seeing that the matter against rogues and thieves was properly presented to the decision of the jury—I venture that as at least justifying my support of the measure."
But although he strongly approved of MacGregor's proposal he did not consider the acquittal of a prisoner against the clearest evidence as always necessarily serious. Speaking from his long experience as Crown Prosecutor he said:
"The prisoner, most probably an habitual criminal, can as a rule play a very good comic part—his counsel, who has a perfectly hopeless case as a rule, raises some ludicrously absurd suggestion to the jury, which is laughed at, and eventually the jury, who have been amused and interested by the counsel, give the prisoner what they call the benefit of the doubt. It does not matter because almost certainly that kind of man will be in the hands of the police again in a very short time and he is not likely to escape twice running."
But although this reform was adopted so frequently by the Legislative Council, and was strongly supported by nearly all the Judges, it has never yet reached the statute-book. On the one occasion on which it was submitted to the House of Representatives it found little support and after a brief debate was rejected on the voices. Nevertheless the problem continues to obtrude itself. While this book was being written, the Chief Justice, Sir Michael Myers, made a strong pronouncement on the fact that four juries had failed to agree in a criminal case where a woman was page 164tried on seven cases of using an instrument to procure abortion. The evidence was clear and undisputed, and he added "there are various aspects of this case which are worthy of the serious attention of those who guide the destinies of this young country."
Bell also agreed with MacGregor that the practice of using juries to try civil cases was a mere fetish. He said that jurymen were prepared to try the issue between the country and the prisoner at the Bar, and to sit on grand and petty juries. But in his view they resented being called on to act as arbitrators between people whose concerns they had nothing to do with. They objected to "be compelled to sit and be bored by the witnesses, bored by the counsel, and eventually have to decide upon matters which they themselves knew they were incompetent to determine." "What chance," he asked, "has the unpopular man when the issue is being tried by his neighbours? What chance has a wretched defendant in a breach of promise of marriage suit?" In short he approved of the code Napoleon, the German code, and the code of all other nations, which are mostly founded upon the Roman law, which leave the trial of criminal cases to a body of men, and the trial of civil cases to a Judge.
But Bell refused to support MacGregor's proposal to abolish grand juries. MacGregor urged that this change had been in operation in most of the Australian States during the whole period of their existence. He quoted Australian information to the effect that while the power to obtain a grand jury still existed, it was very rarely used. In Victoria, when an accused person page 165is committed for trial, the depositions are forwarded to the proper officer of the Court of trial. A brief of the evidence is prepared by that officer and submitted to a prosecutor for the King. This prosecutor is an independent official, and he reads the depositions, and, if the facts justify it, prepares a presentment against the accused which is filed in the Court of trial immediately before arraignment. If, however, he is of the opinion that the depositions do not disclose an offence, he so reports to the Attorney-General, who decides whether the case is to be proceeded with or not. A presentment may be made when there has been no committal. MacGregor stated that three of the New Zealand Judges were in favour of the change, but the majority were opposed to it. Sir Francis Bell, who was then Attorney-General, was of opinion that the grand-jury system still had great advantages.
"There may come a time," he said, "when the person who is indicted may need that great advantage of the grand jury—its absolute impartiality. There may be occasions when a grand jury is moved by the sympathy of a certain number of influential persons to take a course favourable to the prisoner, but you will never find a case where the grand jury is influenced against the prisoner … The grand jury is after all the Assize of the country … That is the old idea—that the grand jury is to tell the Judge whether there is a bona fide case against the man whom he is there to deliver from gaol or from bail."
In reply to the suggestion that the present system was expensive, Bell said:
"I have had long experience, and my experience of page 166witnesses is that it was the greatest possible convenience of the Crown that on the first day's sitting the witnesses had to be in attendance, and the police had tally of them."
As to the suggestion that it was hard upon business men to be called to sit on the grand juries, Bell said that he had heard lots of people use bad language about it, but he had never heard a man genuinely complain of that duty which he was called on to perform on behalf of the country.
"I have heard men complain of being called on to serve on a petty jury in civil cases. They complain with very great justice of that burden, but I have never heard men genuinely complain of being called on to perform the public duty of forming that tribunal for criminal causes."
One advantage was that it sometimes enabled public opinion to be expressed on matters which could not be otherwise expressed. For example, he quoted the case of the increase in assaults upon little girls, and public opinion was expressed by presentments of grand juries that mere imprisonment was not a sufficient deterrent. The expression of opinion upon that point could not reach the Judges except by presentment of the grand jury.
"If you abolish the grand jury you will abolish that means of communicating with an isolated body—the Judges—isolated by habit and tradition—isolated from public opinion except through the medium of the Press, which is no doubt the medium which gives us all most of the knowledge we have about matters outside of our own business and homes. For that reason alone, it seems to me that there is good cause page 167for maintaining that ancient system—good reason for not casting away one fragment, however less valuable it may have become than it was in former days—one fragment of the public participation in and voice in the administration of criminal justice."
From time to time Bell continued to support further legal reforms promulgated by MacGregor whenever he considered them wise and necessary. For example, in 1927 MacGregor sought to modify the common-law rule as to contributory negligence so as to follow the Admiralty rule that the damages shall be apportioned according to the degree of blame attributable to each party. This reform has become more urgent since the great growth in the number of motor accidents, but has not yet become law.
Before closing this chapter reference may be made to two other items of legislation which were unsuccessfully opposed by Bell.
In 1929 Parliament passed an amendment to the marriage law to allow a man to marry his deceased wife's niece, or a woman her deceased husband's nephew. Bell argued that in most cases the child had been brought up in the house of the man who desired to marry her.
"It is dangerous," he said, "to allow paternal relationship to be turned into relationship of the bed. Besides, the effect of the Bill is to introduce into the family relation a novelty and a position which is against all tradition of family as we have understood page 168it in our country, and as it is understood in all England's dependencies. This creates legitimate children in New Zealand which are illegitimate elsewhere. Our marriage law should be uniform throughout the Empire."
He was also opposed to the appointment of women as Justices of the Peace. He shrank from the idea that if they sat on the bench they would be compelled to listen to the disgusting language of Police Court cases. Moreover, he could not see how in the turmoil of civil conflict they could be expected to read the Riot Act, or to apprehend rioters who would not disperse. Although in 1924 his opposition killed the Bill, at a later date the measure was carried, and a number of women have been appointed as Justices of the Peace.