The Dominion. WEDNESDAY, NOVEMBER 22, 1911. THE ADMINISTRATION OF JUSTICE.

Dominion, Volume 5, Issue 1292, 22 November 1911, Page 6

The Dominion. WEDNESDAY, NOVEMBER 22, 1911. THE ADMINISTRATION OF JUSTICE.

The very strange attitude taken up by the Chief Justice in the case of the man Moffitt on Saturday last is somewhat disquieting. The circumstances arc so remarkable and the course taken appears to conflict so directly with the recognised principles which govern our Courts of Justice in arriving at a determination of the issues submitted for their decision, that it is most desirable that the ■ matter should be ventilated, and if possible, the doubts which have been occasioned cleared away. The prisoner Moffitt had been tried for manslaughter, but the jury found him guilty only of assault causing grievous' bodily harm. They also recommended him to mercy. The prisoner was a young man, reported to be of good character apart from the offence of which he had been convicted. His counsel pleaded that the circumstances were such that his Honour might well admit him to probation. To this the Chief Justice could not agree, and as the matter was one solely for his judgment no exception could be taken to his decision. Unfortunately, however, in announcing this refusal his Honour made certain statements in relation to. a witness iu the case which gave rise to a very large question of principle and also may arouse some uneasiness as to the grounds for his decision. His Honour said he disbelieved a statement by a witness named Thompson, who had sworn that he saw the victim of the assault fall down some steps in the Albert Hotel. This statement, tho Chief Justice believed, had influenced the jury, and ho added:

I (lid not bMiovfl him [Thompson! it (lie time and the police have, since found his testimony lo be untrue. The barmaid staled that no one fell down the steps of tho hotel.

A little later, in reply to a protest from counsel for the accused, his Honour stated further:

Well, tho police mado inquiries and found il to bn untrue that anyone fell down the steps.

To properly understand the position it must he explained that the barmaid was not a witness in the case at all—that the inquiries made by the police were made subsequent to the conviction of Moffitt. and the information they obtained was quite cx-pavlc and presumably was not given on <j<ath. ■_ Thus we have this extraordinary situation: A man is convicted of a much lesser offence than that on which he stood charged. He comes up for sentence, and the Chief Justice, in refusing to admit him to probation, goes out of his way to declare that- one of the witnesses for the defence had perjured himself and bud, by so doing, influenced the jury in the prisoner's favour. This, of course, is a, very serious accusation for the Chief Justice to make—serious not only for the stigma it placed upon [he witness in question, but also for its effect on the prisoner 'in discounting his defence and preventing him receiving that more lenient treatment which otherwise might _ reasonably have, been accorded him, It would be

expected that one holding so responsible mi office as Chief Justice of the Dominion would not deem it advisable to make a definite and emphatic statement of this kind without having first obtained the fullest proof of ils accuracy. Mere M/.v/«V/f,;i Mould not warrant his Honour taking up such an attitude although it might justify him in ordering the police to make inquiries with a view to taking action to test tho matter. Jlut until the charge was proved, neither the Chief Justice nor anyone else had the right to act on the assumption lhat the witness had been guilty uf perjury—certainly no one should allow a belief, founded on an impression, backed only by cx-partc statements, to affect a decision in a Court of Justice. Yet, on the facts disclosed, this unfortunately appears to he what happened. The only conclusion to be drawn from his Honour's altitude is (hat ho accepted the statements reported to have been made to tho police as proved facts and proceeded to act on that assumption.

What would he thought of our Courts of Justice if in criminal prosecutions a decision was arrived at through the polico privately conveying to the presiding Judge the oyulence for the prosecution, the witnesses not appearing in Court and neither the prisoner nor his counsel being permitted to cross* oxamine them'! Would such methods be tolerated! What difference, in principle, is there between this supposititious case and the case we are discussing? It may be said that Mofi-itt had already been convicted, but in determining his punishment it is very plain that the Chief Justice was in a measure influenced by the consideration that, in his opinion, the witness Thompson had committed perjury, and it is equally plain that his Honour's belief was, to say the least, strengthened by the cx-purte evidence collected by the police and conveyed privately to him. It is true that the Chief Justice staled that be was not affected by the evidence; but why then did, he drag it in in support of his own belief and to the prejudice of Thompson! It is true also that he stated that Moffitt would not be punished for Thompson's supposed perjury, but does not the whole tone of his Honour's remarks go to show that he was influenced in his view of Mornrr's position by his estimate of Thompson's evidence—despite the jury's finding? Did he not say":

The jury found a lesser verdict anil I have to find a reason for that verdict. I believe that the jury was influenced bv tho statement of Thompson. The report of tho police to mo is that tho barmaid has no recollection of a man foiling down the steps and certainly not of refusing to serve a man who had fallen.

This surely goes to show that his Honour, unconsciously perhaps, was estimating the merits of Moffitt's case on Thompson's evidence. It also goes to show that ho preferred to believe the privately-made exparte statement of a barmaid who "had no recollection of a man falling down the steps" to the sworn and positive statement of the witness Thompson made in open Court 'to the-effect that a man did fall down the steps. We have no desire to express any opinion as to whether Moffitt's sentence was a reasonable one or otherwise. Our purpose is .to direct attention to the larger and infinitely' more important question, from the public point of view, of (he peril underlying any action in the direction of, permitting ex-part c statements, privately made, to influence in any way, be it ever so slightly, the course of justice in our Courts of Law. On reflection the Chief Justice will probably realise the clanger attached to even the appearance of a Judge being influenced by cx-partc statements made outside the walls of a. Court and obtained as the result of private inquiries' instituted without the knowledge of the person whose interests are prejudiced thereby, and .without any opportunity being afforded for refuting them.-