A MAGISTRATE AS A WITNESS.

Press, Volume L, Issue 14887, 29 January 1914, Page 8

A MAGISTRATE AS A WITNESS.

» • AN LNTERESTING DECISION. (PRESS ASSOCIATION* TELEGRAM.) AUCKLAND, January 28. The rights of a magistrate to refuso, to be called as a witness to give evidence as to what transpired in a previous case when this evidence is considered by counsel to be necessary in tho interests of justice, was the subject of an interesting discussion at the Police Court to-day. It was during tlio hearing of an assault case in which a police officer appeared as defendant. Mr Brown (counsel for complainant) stated that he had subpoenaed Mr E. C. Cutten, 8.-VI., to give evidence as to an admission of tne assault which he alleged had been made by the defendant, in a previous action in reference to the same incident. . Mr F. V. Frazer, S.M., who occupied the bench, said that he did not think it desirable to call the -Magistrate or any other judicial officer as a witness. _»Ir Brown said he had a strong objection to calling Mr Cutten, but ho had a stronger objection to jeopardis- j ing proving his case. He remarked that he had also subptcnaed Mr F. J. Stewart, deputy clerk of the Court, for the same purpose, and he, like Mr Cutten, had expressed strong objections to appearing in the witness-box. He hoped that tnere was not a conspiracy of silence.. Mr Frazer again gave bis opinion that it was improper to call a judicial officer to give evidence on information that had come to his knowledge in his official position, and ho quoted an authority which stated that a judge was privileged to refuse to give evidence under such circumstances. In the present case every other means of obtainin"- evidenco required should be exhausted before Mr Cutten was called. If all other means failed, he did not think Mr Cutten would continue to avail himself of his privilege. Mr Brown said the authority quoted referred to judges of tho Supreme Court. , . , i- _ _ Mr Frazer said that it also applied to other judicial officers. He pointed out that a magistrate presided in a court for the specific purpose of judging. Mr Brown: But if a man passesalonjs a road for a specific purpose, and facts come to his knowledge, why ehould be not bo called as a witness? Mr Frazer said that such a case was altogether different. If a judicial officer acquired information in his private capacity, ho could, of course, bo called as a witness. Mr Brown: 1 submit that I am entitled to Mr Cutten's ovidence in this caso. Mr Frazer: I do not think you have exhausted all other means of obtaining what you want. There are tho court orderly arid the Press representatives. Mr Brown: I submit that it is improper that I should be asked to select the most partial officer I could find, namely, a police officer. The most impartial and most reliable witness in such a matter is the Magistrate. All that will be required from Mr Cutten will bo his notes of tho case. No one is more anxious than I am to uphold the dignity and reputation of the Bench, but I even more desire that tho evidence I want should be given by a fair and impartial witness, even if it comes from a magistrate. Mr Frazer: It is not a question of preserving the dignity of the Bench. . Mr Brown hero agreed to call the Sub-Inspector of Police, but after hearing his evidence, said that he would still want to hear Mr Cutten. After a short adjournment, Mr Frazer stated that if it were found necessary in the interests of justice, Mr Cutten would give evidenco in rebuttal at the conclusion of the case. Mr Brown stated that if the admission made by the defendant, that he had. placed bis hands on the complainant and had broken his collar, would be "regarded.by the Bench to constitute an assault, he would not call Mr CuttenMr Frazer said that the act was undoubtedly an assault, but whether it was justified or not would be a matter for legal argument.