SUPREME COURT

Dominion, Volume 8, Issue 2380, 9 February 1915, Page 9

SUPREME COURT

FOR WfiOM DESTINED? , SHIPMENTS TO ROTTERDAM ALLEGED TRADING WITH THE ;■■>'ENEMY . . Allegations of trading with the enemy are contained in five; charges, the hearing of which is at present occupying the attention of the Supreme Court. The accused person is one of the German prisoners of war, named Wilhelm Heinrich Magnus Duerkop, and the charges are being heard before His Honour the C-lief Justice (Sir Robert Stout) and a special jury of twelve. Mr. H. H. Ostler, of the Crown Law Office, is conducting the prosecution,, while Mr. T. Neave'is appearing for/the-defence. .■ Thß Charges. The charges read as follow: —(1) Being a partner in a firm of merchants carrying on business at Auckland . .." . under the name of Duerkop and Maokay,: on or about September 17,/ at Auckland, at a time while His Majesty was at war with a foreign State, to'wit, the Empire of Germany, did attempt to supply Gustav J. J. Witt, a person carrying on business in the territory of such foreign State, to wit, at Hamburg, certain : goods, to wit. 17 casks of casings; (2) a similar charge laid in" respect to October 6, the charge reading: •'Did supply •tlirty-three.casks and one case of casings"; (3) in respect to October 28, of "attempting to supply 19 bales pi sheepskins, 12 sacks of cowtails, and 14 sacks of glue pieces"; (4) on the same, date, ten casks of casings; (5) of attempting to trade with the enemy by'supplying Gustav J. J. Witt and Co.'s, Handelmaatsohappis, a' German firm trading at Rotterdam, for transmission to an enemy country, to wit, Germany, 9 casks and one case of casings." ' ■.••.;■ The special jury was composed of the. following ;—Arthur Young (foreman), Arthur Dixon, James Whitson. Jack, Harold Brown, Edward Russell Malcolm ! Diinock, Robert William Hannah, Albert Burridge, Herbert Douglas Vickery, Frank '■ Meadowcroft. Claude,. Percy Jones, Albert Llewellyn Haslem, and Walter SmallbpneV ~.'.''/ Preliminary Objection. 'Mr. Neave raised a. preliminary, objection as to the legality',of. thei' manner. in which the information's : -were.'laid. Four of them, he said, were laid under Section 35 of .the Regulation"! of Trade and Commerce Act, August 10, 1914. Tliat section /remained in force until November : 2, when; the Trading with the Enemy Act was passed, repealing Section ,3(5. As four of the: offences wereVcommitted prior to the passing of the latter Act, the position, arose that the prisoner was indicted in these in-, stances under an Act which had been repealed. •■ ■ :.. _ His Honour noted-the objeotion, remarking that the provisions of the; Acta Interpretations Act -would, .seem;.. : to apply;. . '. : r - . ■ >- 1 ''< On being' formally charged, Duerkop pleaded not guilty; ' ". • JVIr. Ostler announced that it had beonagreed that the five, charges .bo taken together:' ;.' ' •'■"■'■.'■'•'■ '' Mr.i Neave asked that the acoused might be allowed-to leave the dook and' sit at 'the.Stable'.with-coim'sel-'to -assist' in the defence. -His Honour consented, to this. ■'". case for the Crown. Mr. Ostler, in opening the case to the •jury, pointed out that almost from time. immemorial—at least for many centuries—it had been the common law of England that, when His. Majesty was at war with any foreign State, it was an offence for any subject or any-person within His Majesty's Dominions to trade with the enemy. " This 'was because trade supplied the sinews of war, and because it would be foolish to : allow anyone to supply sinews of war to the enemy. : Almost immediately on the outbreak of war a proclamation was issued by the Home Government forbidding trade with the enemy, and, within five days of that proclamation,' our Parliament had passed • an Act—our criminal law, being administered by statute—dealing- with the.offences mentioned in the proclamation referred to. This Act was called the-Regulation of Trade and Commerce Act, 1914," and Section. 35 of that Act. dealt.with the offence of trading with the enemy. The. section remained in force until November 2, when it was repealed by a special Act, the Trading With the Enemy Act.

Four of the informations wero laid under the first Act, and the fifth (relating to an offenco committed on-Novem-hor 3] was laid undor tho subsequent Act., _ All tho facts in the case wbro contained in correspondence found in the accused's office —letters writen by him or to him. There was none of tho ordinary oral cvidenco to offer, - oxceptuig in regard to tho freight from New Zealand to Rottordom or London at a .time when the Royal Mail Packet offered £5 per ton, and tho offer was accepted. The accused was a native of ..Hamburg, and was about twenty-sis years of age. No one could read his lotters without seeing that he had had . a very wide business experience and training. In 1912 he had entered into business with a young New Zealander, named Mackay. The" new firm did a large trade in the export of sausage casings and articles of 'a similar nature. It' would be seen that, by his industry, Duerkop was working up a •big business. There was no suggestion throughout the case that, since the war, tho accused had acted in any way traitorously, of attempted to give away any information to. the enemy or in any ! way been disloyal to tho interests of the Empire. The whole charge against him hinged on to the question as to whether he broke one or other of the statutes referred to or both of them by trading, or attempting to trade with the enemy. Tho correspondence showed that he displayed a sympathy with the enemy, but no one could take exception to that. In 1913 Duerko.p made a trip to Germany, and while there made arrangements to open up trade with two firms. . One of these 'was Gustav J. J. Witt, of Hamburg. When the war broke out shipments, consigned to these firms were on the water, and an attempt was made to divert them to Gustav J. J. Witt and Company, Handelmaatsohappis, Rotterdam. ' Counsel suggested ' that when the . correspondence was read the juiy' would have no hesitation in coming to the conclusion that this firm was purely tho creation of Witt, of Hamburg, and was controlled entirely by him. That was not admitted, but it was clear that ' the' capital'was-German, that the directors were German, and that in letters Witt had sppken of the Dutch company as "my firm." Therefore a communication sent to the Dutch company was really sent to-Witt. Mr. Ostler then outlined the position, in which accused found himself at, the outbreak of war, when some of his shipments .were on the way to Germany. The efforts of the accused to divert tjiese shipments from neutral and' British ports to Rotterdam had ied to the informations being laid. " The correspondence was then referred to at considerable length by Mr. Ostler, who submitted that the letters showed that Duerkop, when he was shipping goods to Rotterdam, knew that he was shipping; theni to Germany. , The Teading of 1 the correspondence closed the case for tho Crown, -subject ' to the right to call ono witness .on the question of freight rates. The Defenca. Mr.' Neave -intimated at the outset, that he proposed to call evidence for the defenco, and would not therefore deal at any length with the correspondence v at that stage. He wishod, however to refer to the very fair manner in which the Crown Prosecutor ' had placed tho letters before the jury, and he had been.. spwially asked by his client'to express his appreciation of theCrown Prosecutor's' remarks in regard to his conduct to this country sinco the outbreak of hostilities. Mr. Neave then went on to - refer to his client's position, •ivh'en war-was declared. Faced with a serious loss. in regard to his consignments on the high'seas, hei had. received legal advice from Mr. Algie, of Auckland,' and on the strength of that advice had formed the' impression that he was committing .no -offence in diverting the consignments to Rotterdam. His Honour: ;Will you contend, supposing a lnaji gets mong advice,; that that can have Shy bearing on the case?' i Mr. Neave- replied in the negative, but stated, he hoped to show that Duerkop had acted on sound advice, and in tins connection he had an authority to bring under the notice of His Honour at a- later, stage- of the proceedings. Reverting : to , the letters put before the jury,. Mr. 'Neave pointed out that the Crown's case depended entirely on an "inference to be drawn, from the correspondence. He would contend, however, that out of the correspondence, on which the Crown relied there was an irresistible case for tho defence. Even in one of the early letters from Witt, of Hamburg, the latter had expressed regret that, on ac-count-of the war, he .could not trade with Duerkop. How in the face of that could . the jury assume that Duerkop would ship' £800 worth of his goods to a man from whom ho could never hope' to receive payment? A more detailed analysis of the correspondence would be made after the jury had heard the witnesses to be called for the defence. Ronald Macmillan Algie, barrister and solicitor, and lecturer on International Law at the, Auckland University, said that at the outbreak of war he had delivered a number of lectures in Auckland on questions arising out of-, tho war. - These were intended for the benefit of the business people, and from the second, of those, entitled ' 'Enemy Character," and delivered on August 14, an intelligent man might draw tho Inference that there-could be no harm in, trading with a firm in Holla Ad. In an'interview with'Duerkop on August 20, witness had . discussed the enemy character of firms, and subsequently, on September 4, witness had given Duerkop advice in regard to his shipments on the water at the outbreak of war. This enabled him to write to the Collector of Customs at Colombo in reference to one of those' shipments. At »n interview on a later date, Duerkop raised tho question of trade with Holland. Witness informed him that on account of the proximity of Holland to Germany, it was probable that Britain would'place heavy restrictions on trade with that country -under her contraband regulations. Duerkop would, therefore, need to be frank, and tell witness for whom the goods were intended. When Duerkop mado known the full (acts, witness informed him that if he intended to trado bona fido with tho Dutch company of Gustav "J. J. Witt and Co., Handelmaatsohappis,' Rotterdam, and, if ho had no intention of exorcising control of those goods after they reaehed Rotterdam, ho,was quite at liberty under tho existing law to carry on the trade. Witness, however, had some doubt in his own mind about tbo character of the.Dutch company, and advised Duerkop to make very careful inquiries on the matter. At a later date Duerkop informed witness that inquiry had confirmed his original view that the company was a' Dutch company. To Mr. Ostler: Had assumed that Gustav J. J. AVitt and Co., Handelmaatsohappis, Rotterdam, was n firm incorporated according to Dutch law, and that Witt was a director, but did not know at the time of tho interview that Witt was the managing director and that the manager was another German. Was hot sure that, Duerkop told him that the capital was German, but in face of the fact tliat tho directors were German, witness advised him that it was safe to deal with tho firm. Howover, he had further advised Duerkop that on account of suspicion that would attach to him as a Gorman that it would be better for liira to deal with a country more remote from Germany. At 4.45 p.m. the hearing was ndjourned until 10 o'clock this morning, when Duci'kop will give cvidonco.

DIVORCE CASKS.

His Honour Mr. Justice Hosking presided, at a sitting of tho Supremo Court in divorce yesterday morning, wlien tlio case ot' llahena Muriwai Urn v. John Hope no Wha.rotviti Ur'u was dealt with. Tho case had. been sot. dowi'«ls-defend-.,

Ed, but the respondent had abandoned his defence. '

Sir Jolm Findlay, K.C., with' him Mr. D. R. Hoggard, appeared for tho petitioner, and called evidence to show that tho parties were married at Kaiapoi on February 4, 1892, and that on difforent occasions tho respondent had been guilty of misconduct, that ho was an habitual drunkard, and treated petitioner with excessive cruelty. His Honour granted 3 decree nisi, to bo made absolute in three months, with costs on tho highest scale against the respondent. _ . In tho case of Ruruanga Mahuki (Mr. H. F. Ayson) v. Hera Ruruanga Mahuld and another (Mr. D. S. Smith), it was stated that some of the parties sided in the Chatham Islands, and had not yet reached. Wellington. The jury was selected, and tho case was then adjourned until 10 o'clock on Friday morning. ALLEGED LIBEL. .Reserved judgment was given by His Honour Mr. Justice Hosting in a sum-' irons for interrogatories in the case of John Edward Barltrop, of Feilding, v. Frederick Pirani, printer, and Pirani and Co., proprietors of the Feilding "Star," an action claiming damages for alleged libel. . Plaintiff had asked for interrogatories to bo administered Lo T. L' Mills, editor of the "Star." His Honour struck out ono interrogatory and allowed two to be administered to tho defendant company, no costs being allowed. Mr. R. H. Webb appeared in support of tho summons, while Mr. P. B. Coke, appeared for the defendants. m BANKRUPTCY. • Before His Honour tho Chief . Justice (Sir Robert Stout) yesterday morning, Alexander Thomas M'William, liverystablekeeper, applied for discharge from bankruptcy. Mr. F. E.'Petherick appeared for the Applicant. A previous application had been adjourned pending other proceedings to set aside a conveyance by bankrupt toono Boffa. These proceedings were oventually settled' on a basis suggested by His Honour, and yesterday .tho Act-. rag-Official Assigneo (Mr. S. Tansley) intimated that there, was now no objection to the discharge being granted. His Honour said ■.that, in order to show tho Court did not view the bankrupt's 1 actions with lovity, the discharge would be. postponed-.for two months. AUCKLAND SESSIONS. (By Telegraph.—Press Association.). 1 Auckland, February 8. At the Supreme Court, Charles Samuel Lake, charged with setting fire to the railway station at : Tauranga, was.' in consideration of his previous good character, sentenced to only two years' reformative treatment. Leslie Finlayson M'Kenzie, a postal servant, charged with stealing postal packets, was admitted to the maximum period of three years' probation. Ernest Adams, found guilty of incest, ■ was sentenced to soven years' imprisonment. CHRISTCHURCH SITTINGS OPENED.. Christchurch, February 8. Tho criminal sessions of the Supreme Court opened before Mr. Justice Sim, who, in charging the; Grand Jury, remarked that nino cases out of eighteen ■ in tho calendar involved offences against females. ALLEGED SHEEP STEALING; Timaru, February 8. - ; The hearing of the charges of sheepstealing against Robert Guthrie concluded in the Supreme Court to-day,-having occupied four days. After four hours' retirement, the jury announced a disagreement, and a retrial was ordered, the date to bo fixed within a fortnight. . CRIME IN DUNEDIN. , DunesSiri, February 8. At the Supreme Court to-day David' Murray Dickson was arraigned on three charges of forgery and one charge of false pretences. Accused at first pleaded not guilty, but after hearing the evidence withdrew, that plea, and Mr.. Brasch made an appeal for leniency. Judge Denniston said he would give the prisoner another chance, as he did not wish to make a criminal of him, and I he had already suffered two, months' imprisonment. He placed the, prisoner under probation for twelve months, and ordered him to pay costs (£5) of the prosecution. His Honour declined to order restitution to the publicans, as he did not consider they should b oncouraged to cash, cheques.