Chapter 10 - Court of Appeal

Trial at bar: section 69

Section 69 of the Judicature Act 1908 is an archaic provision that states that the Court of Appeal may hear and determine a criminal trial of extraordinary importance or difficulty as the court of first instance. It allows the trial to be held before a jury summoned from a jury district selected by the Court. In cases to which section 69 applies, the proceedings are on the same basis as a trial at bar in England (or as near to it as possible), and the Court of Appeal has the same jurisdiction, authority and power as the Queen’s Bench has in England in respect of trials at bar.

In England, a trial at bar originally involved the trial of a civil matter, or of a prisoner, before the Court itself, instead of, as was the normal rule, at nisi prius (ordinary jury trial). Whether such a trial was granted was entirely within the discretion of the Court, unless the Crown was actually and immediately interested, in which case the Attorney-General was entitled to demand such a trial as of right. For the purpose of such a trial, a special jury was empanelled.

Trial at bar was used in England in cases of high public interest or importance. An example of such a trial was the 1873 trial of Arthur Orton on a charge of perjury for swearing that he was Sir Roger Tichborne in order to claim an inheritance. Further English examples include the cases of R v Jameson253 and R v Lynch.254

It appears that the last time the trial at bar procedure was used in England was in the trial of Roger Casement, an Irish Nationalist who was convicted of treason and executed for acts committed in Germany in 1916.255 It is telling that the trial at bar process was not invoked in England in 1945 for the high profile trial of William Joyce, who was charged with treason for aiding and assisting Germany during World War II.256

It does not appear that there has ever been a trial at bar under section 69 of the Judicature Act 1908 in New Zealand.

 

Reform

A good argument can be made that use of the trial at bar procedure would curtail a defendant’s rights. With a trial at bar, an appeal to the Court of Appeal would not be available because the trial at first instance is before that Court. Moreover, there are no criteria in the Act as to what constitutes a case of extraordinary importance or difficulty that would warrant a trial at bar. A decision to use section 69 in the case of a specific defendant could justifiably be viewed as discriminatory, unfair and contrary to the principle of the rule of law. No doubt this accounts for why the process has never been used in New Zealand.

By way of contrast, in the civil jurisdiction section 64 of the Judicature Act 1908 provides that if the circumstances of a civil proceeding are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal. The section sets out instances of when the circumstances of a proceeding may be exceptional, and the matters a judge must have regard to in deciding whether to transfer a proceeding under this section.

It has been nearly 100 years since trial at bar was used in England. More importantly, the process has never been invoked in New Zealand. Given that it is an extraordinary departure from the normal criminal process, it does not seem likely that it ever will, or should, be used. In our view, the provision is no longer necessary or appropriate, and should not be included in the proposed new courts legislation.

Q32

Do you agree that section 69 of the Judicature Act, which provides for trial at bar, should be repealed and not re-enacted in the new courts statute?

R v Jameson [1896] 2 QB 425, involving a charge of treason for preparing a military expedition to proceed against the dominions of a friendly state for an unsuccessful raid in South Africa that was intended to trigger an uprising of British workers.

R v Lynch [1903] 1 KB 444, [1900-3] All ER Rep 688, where Colonel Arthur Lynch was charged with treason for commanding an Irish Battalion against the English during the Boer War.

R v Casement [1917] 1 KB 98, [1916-17] All ER Rep 214 (CA).

R v Joyce [1945] 2 All ER 673 (CA). William Joyce, who became known as Lord Haw-Haw, was an announcer for an English-language propaganda radio programme broadcast by Nazi Germany with the aim of demoralising Allied troops and the British public. Joyce was found guilty and was executed in 1946.