We were discussing this amendment which appeared to withdraw from the defendant his absolute right to secure a transfer to the Central Criminal Court. While the Bill is acknowledging that that absolute right is preserved at the stage of his return for trial by the district justice it appears that heretofore he had the right, which the original section 26 proposed to give him, to serve seven days' notice on the Attorney General whereafter the circuit court judge was obliged to grant him the necessary transfer he sought to the Central Criminal Court. In the amendment which is to be substituted for Section 26 it is sought to remove that absolute right and to place it again in the hands of the circuit court judge before whom he was originally returned for trial.
These are matters about which one must not allow oneself to get sentimental. We must be practical. To anyone who is on trial and alone, confronted with an appalling ordeal, there is not much consolation one can offer but there is this minimum that I think we should be concerned to make available to him—that is why Section 26 in its original form recommends itself to me —that he would have the right to choose within the judicial system the court where he felt he would get the fairest trial.
I believe he would get a fair trial from a circuit judge or a High Court Judge. Of course we are not dealing with trials in this context. We are dealing with trials by juries, and we are dealing with a population which is largely a rural population. There are many cases of which we all know in this House where a defendant would prefer to be tried among his neighbours if he were charged with the right kind of offence, confident that the neighbours would never convict him. On the other hand, a man could find himself charged with some disgraceful crime or charged with some crime which excites public antipathy and profound sympathy for the victim. He may be a person driving a car while under the influence of drink or driving it recklessly as is provided for under the new transport legislation. He may feel that local feeling is so strong he would not get a fair run for his money. Would it not be a desirable thing, even though in his distraction and woe he is not taking a reasonable view of the situation, to say to that person: "All you have to do is give the Attorney General seven days' notice." The jury knows nothing about the background of the case at all. I think it is a hardship to say to that man: "Make your application to the circuit court judge." All the circuit court judges are not angels. It can happen that the judge may have a sore head and may get it into his mind that the person objects to being tried by him and the judge says: "Certainly not." It is quite possible that the person will get a fair trial. If he is convicted and sentenced, he will leave the court not only burdened by the affliction of the disaster that has come upon him but by the sense of grievance that he has not had a fair run for his money.
I think we are right in this country in our strict adherence to the view that a man is innocent until the State has proved him guilty, unlike the Napoleonic law or the Roman law. I think he is entitled to as free a choice as is practicable to give him of the tribunal within our system of law before which to make his case and to issue his challenge to the State to prove to a jury who are truly detached that he is guilty.
We had dramatic instances recently in which the Court of Criminal Appeal ordered, because a member of a jury had an interest, however remote, in matters which were before the court for decision, a retrial immediately. That is an indication, I think, of the view of the courts which I think they rightly hold that where there is any doubt at all about an interest in the jury box, the trial should be set aside and a retrial ordered. In those circumstances, I would suggest to the Parliamentary Secretary that his original proposal is better than the amendment he now submits.