Nullity
| DOI | 10.1177/002201835501900107 |
| Published date | 01 January 1955 |
| Date | 01 January 1955 |
| Subject Matter | Article |
Nullity
PROCEEDIN G S which have all the outward appearance of
acorrect judicial trial may amount to a nullity if
the
necessary legal procedure is ignored or incorrectly followed.
The
test of the validity of all judicial proceedings can be
summed up in the short
question-Was
the defendant placed
in peril by them?
If
he was they were effective; if not they
were a nullity.
Questions of nullity usually arise where adefendant is
attempting to set up the defence of autrefois acquit. An
illustration of this is the case of
R.
v. Marsham: ex parte
Pethick Lawrence (1912 76
J.P.
284). Here the defendant had
been charged with assault and one of the witnesses for the
prosecution, through an oversight which was not brought to
the knowledge of the magistrate at the time, gave his evidence
without being sworn and the magistrate convicted the defen-
dant. Shortly afterwards, during the same sitting, the
magistrate was informed of the irregularity. He reheard the
case and convicted the defendant.
Upon
appeal to a divisional court, it was argued
that
the
defendant had been twice
put
in peril. Reliance was placed on
R.
v. Gibson (1887 51
J.P.
742) where aconviction was
quashed because inadmissible evidence had been allowed to
be given to the jury.
The
original proceedings in
the
Marsham
case had not been anullity because the magistrate could have
had the witness sworn during the hearing.
All three judges rejected these contentions,
Mr.
Justice
Avory observing in the course of his
judgment
"The
substan-
tial and real ground of this appeal is
that
the
applicant at the
time of the conviction had previously been
put
in peril in
respect of the same offence. . . .
The
plea of autrefois convict
will be of no avail when
the
first indictment was invalid and on
that
account no
judgment
could have been given because
the
defendant was never before in jeopardy. On those grounds, I
72
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