MAGISTRATE'S RIGHTS.

Dominion, Volume 7, Issue 1970, 29 January 1914, Page 6

MAGISTRATE'S RIGHTS.

CALL HIM AS WITNESS? LAWYER'S PROPOSAL TO DO SO. (By Telesrauh—Press iasodatlon.l Auckland, January 28. The right of a Magistrate to refuse, to be called as a witness, to give evidence 'as to what transpired in ■; a'.previous ease, when this evidence' is' considered by counsel to bo necossary'in the interests of justice, was'the subject of an interesting discussion at tho Police Court to-day. It occurred during the hearing of an assault caso in which a police officer appeared as defendant.. Mi - . Brown, counsel for complainant,, 6tated that ho had subpoenaed Mr. E. C. Cutten, S.M., to give evidence as to an admission of. tho assault which ho alleged had been made by defendant in a previous action. ;Mr. F. V. Frazer, S.M.. who occupied tho Bench, said ihat ho did not think it desirable to call the Magistrate nor any other judicial officer as a witness. .. '

Mr. Brown said that he had strong objections to calling Mr. Cutten, but ho had a stronger objection to jeopardising tho proving of his case. He remarked that ho had also subpoenaed Mr. F. J Stewart, Doputy-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 there was not --a conspiracy of silence. . . Mr.; Frazer again gav-a his 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 empowered to refuse to give evidenco under such circumstances. In the present, case every other means of obtaining the evidence .required should be exhausted before Mr. Cutten was called. If all other means failed ho did not think that Mr. Cutten would continuo to avail himself of his privilege. Mr. Brown said that the authority quoted referred to Judges of the Supremo Court. ' ' Mr. Frazer Teplied that it also applied to other, judicial officers. Ho pointed out that a Magistrate presided in a court for the specific purposes of judging. Mr: Brown: But if a man passes along a road for. a specific purpose, and facts come to his knowledge, why should he not be called as a witness? Mr. Frazer replied that such a case was altogether different. If a judicialofficer acquired information in his private capacity, ho could, of course, bo called as a witness. Mr. Brown: I submit that I am entitled to Mr. Gutten's evidence in this caso. Mr. Frazer: I do not think you havo exhausted all other means of obtaining what you want. There are the court orderly and the press representatives. Mr. Brown: I submit that it is improper that I should bo asked to select the most partial officer 1 could find, namely, a police officer. The most impartial and most reliable witness in such.a matter is tho magistrate. All that will, be required from Mr. Cutten will he his notes of tho case. "No one is more anxious than 1 am," continued counsel, "to uphold the dignity and reputation of the Bench, but I desire, even, more that the evidence that 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 tho Bench. Mr. Brown here agreed to call the sub-inspector (of-police, but;; after hearing his evidence, said that he would still want to hear MY. Cutten. After a short adjournment Mr. Frazer stated that, if it were found- ne<S7s"sa*v in tho interests <r£ justice. Mr. Cutten would give evidence in rebuttal. At, the conclusion of the case Mr. Brown stated that, if the admission made by the defendant- that ho had placed his hands on the complainant and had broken his collar would be regarded by the Bench to constitute an assault, ho would not call Mr. Cutten. Mr.' Frazer said that the act was tir.doubt.edly;. an, assault, ( but whether justified or nqt \yould ,be a matter for legal argument. ■