REX Vs. JOHN MCIVER

JUDGEMENT

(1.) Two points of law arising in the trial of John McIver for criminal breach of trust at the last Criminal Sessions have been reserved to us for decision under Clause 25 of the Letters Patent by the learned Chief Justice. They are (1) whether the plea of autrefois acquit was good in law, and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. By " case put forward by the Crown ", the learned Chief Justice has stated that he means the case alleged in the complaint.

(2.) The learned Crown Prosecutor has taken an objection to our jurisdiction to entertain the reference. His objection proceeds as follows: - The High Court derives its jurisdiction to decide the question of law referred from the order of reference; the referring Judge is only competent to refer questions which he can decide; and the Judge is only competent to decide such questions as are available for his decision. Applying these propositions to the points reserved, the learned Crown Prosecutor has contended (1) that the question whether the plea of autrefois acquit was available to the accused could not be referred by the trial Judge because the point had already been decided by the High Court against the accused in the proceedings previous to the trial; (2) that the trial Judge has not referred the question of availability of the plea, but only the question whether it is good in law; (3) that the, question of autrefois acquit could not be referred because it did not arise in the trial or in the course of the trial (according to Clause 25. Letters Patent or Section 434, Criminal Procedure Code) but was taken before the commencement of the trial; and (4) that the second point of law referred could not be referred because it had already been the subject of decision by a Bench of this High Court at an earlier stage of the proceedings against the accused.

(3.) With regard to the second of these grounds of objection I may say at once that I have no doubt upon the terms of the order of reference that the learned Chief Justice intended to refer not only the question of the availability of the plea to the accused but the question of its merits. As the points taken by the learned Crown Prosecutor relate to various stages of the proceedings in the prosecution of the accused it will be convenient here to state the sequence of events in these proceedings.