MOAI 61 COOK STREET AUCKLAND NZ PRIVATE PROSECUTOR CASE ROLE OF PRIVATE PROSECUTOR CANADA - NEW ZEALAND 1/ It is the essence of a crime that it is a wrong of so serious a nature that it is regarded as an offence, not merely against an individual, but against the State itself.2 2/The Crown is the source and fountain of justice, and all criminal suits must be brought in the Kings name in every Crown case. The King who represents the State is the accuser, and comes forward in the interest of justice and of all the people, and asks for punishment for the offence committed. The individual Sovereign personifies the State; it is a fundamental constitutional rule that all prosecutions take place in the name of the Crown. 3/ But rather because the complainant appeared in the record in the place of The King. 4/ We may therefore accept the fact that all criminal prosecutions must be taken in the name of the sovereign. Does that mean, however, that only the law officers of the Crown or their substitutes may prosecute? Not so, and the Code itself provides part of the answer. 2. SUMMARY CONVICTIONS 5/ Section 709 provides that the prosecutor is entitled personally to conduct his case, and that both he and the defendant may examine witnesses personally or by counsel or agent. It is clear, therefore, that the person who lays the information remains in full control of the proceedings, although it is a matter of doubt whether or not he can stop the proceedings once he has started them.7 6/ The candidate of 1932, on the other hand, was entitled (according to the diploma) to exercise the functions of advocate, counsel, attorney, solicitor and barrister. More recently, economy prevails and the sole term is advocate which, by definition, 10 means attorney, solicitor, legal adviser. Apart from their historical significance, however, these terms may be used interchangeably, and they must also be taken to include such ancient and honourable functions as proctors-in-admiralty and serjeants-at-law who, at one time, had the exclusive right of audience in courts of Common Pleas. But an agent is not a member of the Bar, and the point may therefore arise in some jurisdictions as to his standing. 7/ In Quebec, it is the exclusive prerogative of the advocate in the exercise of his profession ... to plead before any court, and notwithstanding ary law to the contrary, any person who usurps the functions of an advocate becomes liable to a fine not exceeding five hundred dollars.13 There is at least one other such law to the contrary and this, surprisingly enough, is found in the Quebec Code of Civil Procedure: 8/ 1273. No person can act as attorney of either of the parties before a Commissioners Court, unless he is an advocate or attorney at law, or the holder of a special power of attorney, or unless it is in the presence and with the consent of the party. 9/ The question, then, is this: Does the Criminal Code alter, vary or modify the common law. I suggest the answer is yes. 10/ The next case which must be considered is R. v. Boulding,44 where the Saskatchewan Court of Appeal held that a private prosecutor has standing at a summary trial, not because he represents the complainant, but rather because he becomes counsel for the crown while conducting the case: 11/ But in this case, I am of opinion that, there was counsel acting for the Crown in the prosecution of the offender. It is quite true that the prosecution was conducted by counsel for the railway company which was the private prosecutor, but it was a criminal prosecution instituted for the interests of the public in the name of the King and not to gratify the objects of an individual.45 12/ NOTE: IN THE NAME OF THE KING 13/ Wilson, J., proceeded systematically: 1. As to the right to lay the information there can be no question. 2. The old English procedure, except as changed by Code, still stands. 3. Under English law a private prosecutor could, on November 19, 1858, 1 in the absence of intervention by the Crown, carry through all its stages a prosecution for any offence. 4. A private prosecutor has every right to conduct the preliminary inquiry. 5. Where an accused elects to be tried by a judge without jury, the private prosecutor reaches an impasse unless he can persuade the Attorney General or the Clerk of the Peace to prefer an indictment. 6. Where the accused elects to be tried by a court composed of judge and jury, the private prosecutor may still play a role since the court may allow any person to prefer an indictment. 7. The McMicken case8 is still good law. 8. The new Code did not alter the common law on the subject. 9. A private prosecutor therefore may conduct a summary trial. However, having so found, the learned judge made one further observation which is of interest: CONCLUSIONS 14/ It is my opinion - and I say this not only with the greatest respect, but after much hesitation - that the indications found in the Code favour the theory that, in the case of indictable offence, the common law has been altered, varied, modified and affected by statute law to the extent that a private prosecutor is deprived of any standing at trial, save in the case of defamatory libel. 15/ As Farris, C.J., said in R. v. Whiteford:53 A criminal offence is not an offence against an individual but is an offence against society as a whole. The King is recognized as having no partiality to any individual but as representing impartially society as a whole. For individuals who are thinking only of themselves and not of society as a whole to have the right to institute and carry on criminal proceedings would destroy the whole fabric of the recognized fairness of our criminal prosecutions. lawjournal.mcgill.ca/userfiles/other/2716511-kaufman.pdf
Posted on: Sun, 03 Nov 2013 06:42:16 +0000
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