SUPREME COURT

Dominion, Volume 8, Issue 2381, 10 February 1915, Page 9

SUPREME COURT

TRADING WITH THE ENEMY DUERKOP FOUND GUILTY LEGAL POINT TO BE ARGUED In tbo Supremo Court yesterday, hearing was continued of tho chargos of trading with tlio enemy proforrod against Wilholm Hcinrich Magnus Duerkop, of Auckland, one of tlie German prisoners of war. > Tho case was tried baforo His Honour tlio Ckiof J')"tico (Sir Robert Stout) and a special jury- of twelve. Mr. H. H. Ostlor, of tlio Crown Law Oflieo, appeared for Uio Crown, while Mr. 'J'. Neavo dnfouded tbo prisoner, who bad pleaded not guilty to all tlio chargos against bim. The charges road as follow(1) Being a partner in a linn of merchants carrying on business at Auckland . . imdor tho name of Duc-rkop and Mackay, on or about September 17, at Auckland, at a time wbilo ilifi Majesty was at war with a foreign State, to wit, tbe Empiro of Gormauy, did attempt to supply G us Lav J. J. Witt, a person carrying on business in the territory of sucb 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; 'u)id supply thirty-three casks and one case of oasmgs"; (3) in respect to October 28, of "attempting to supply 19 bales of sheepskins, 12 sacks of oowtails, and 14 sacks of glue pieces"; (4) on the 6ame date, ten casks of ca6ings; (5) of attempting to trade with tho enemy by supplying Gustav J. J. Witt and Co.'s, Handelmaatschappis, a German firm trading at Kottordam, for transmission to ail enemy country, to \vit ; Germany, 9 casks and one case of casings." On tbe previous day the case for the Crown had closed, and on© witness had been called for the defence. Accused, in giving ovidence in bis own defence, stilted that when war bioke out be became concerned as to the disposal of his cargoes oil the high seas, and consulted Mr. Algie for the purpose of obtaining a legal opinion. As a result of this consultation, he came to the conclusion that it would be best to deal with neutral countries. Ihen, on account of his personal acquaintance with one of tbe directors of Gustav J. J. Witt and Co., Handelmaatschappis, Rotterdam, he considered it would be advisable to 6hip to that company. There was no tacit understanding that goods sliipped to tbat company must go to Hamburg. He thought it preferable that the shipments should go forward in vessels flying a neutral nag because of the cheaper insurance. v\ hen the Collector of Customs at Colombo declined to allow a transhipment oi one of the cargoes to Rotterdam, accused gave instructions that tho goods should be sent to London, and when, in November, objections - were ra)6ed to consignments to Rotterdam, ho had all cargoes with the exception of one redirected .to London. His reason tor dealing with Botterdam was the likelihood of succeeding in his proposals on account of his acquaintance with one of the directors. 'J'he business was to be on a separate basis, and the goods were to be disposed of on his nrm s behalf at best possible values. t Two days ago the Bank of Australasia received advice of tho payment of a drait bv the Rotterdam Company. About the end of Septomber, Witt had ten from Hamburg stating that there was absolutely nothing to be hoped for until tho war was over. Accuscd had in conseauonce of this written between 600 and 800 letters in an endeavour to establish new business connections. To Mr. Ostler: He did not know that foodstuffs entering Holland got to Germany, but he did know that protests had been made and tfiat tho Dutch Government was taking care in tho matter. His Honour remarked that lie understood that foodstuffs were never regard&d as contraband unless for a blockaded port or a fortified place. In answer to further questions by Mr. Ostler, accusod said he had made overtures to both New York and Toronto, ajid had ho hcen able to find a suitable market through either of thoßo centres he would have sent shipments accordingly. His Honour pointed out thatyaccusea had apparently made his arrangements with the Rotterdam Company before he could have hoped to rcccive a reply to his letters to either Toronto or New ' Accused declared that ho had T>een honest in his intention of finding aii outlet for his goods in America. ' Mr. Neavo then addressed the jury, oonfining .his observations at the outset to the question as to whether UuerKop intended to open up a now business with tho Dutch company and deal witii them as principals or as agents oi Witt, of Hamburg. He submitted that on tiie whole of the evidence it was clear that Duerkop bad no intention other than that of minimising his losses and getting his goods disposed of in some part of the world. The fact could not bo emphasised too strongly that the whole of the evidence put forward by the Crown oonsisted of correspondence seized in Duerkop's office, and it was not likely that, if Duerkop had intended to commit a crime, he would have preserved the evidence of his gnut. From a few individual words, culled from a few individual letters, tno Crown sought to prove that Duerkop was trading with the enemy, but it was submitted that when the whole of the correspondence was road there was conclusive proof that his trade with tho Hamburg firm was at an end until the war was over. Further counsel submitted that accused's demeanour in the witnoss-bos was proof that he had been perfectly honest and straightforward in the transactions. , , Mr. Ostler briefly repbed. His Honour, in summing up, pointed out to the jury that every one of the five offences charged against tho accused was put in three different ways, so that in all there were fifteen charges to be considered. In regard to the first four offences, the question had been raised as to whether or not the repeal of Section 35 of the Regulation of Trade and Commerce Act released a person from an offence under that statute, but that was purely a question of law, and one with which tho jury had no need to bother.. As to the second and third counts of the fifth indictment, it had been agreed by counsel that the jury might find that Duerkop did trade with "Gustav J. J. Witt and Co., Handelmaatschappis, Rotterdam"—a company registered in Rotterdam, Holland, with German directors and German capital, but quito distuict from any Germany company. ' As to whether that was an offence or not was also a question of law to be argued m another Court. Two views of the case had been placed before the jury. The Crown said that, when accused could not get his goods direct to Witt in Germany becauso of the war, lie set about getting them there in an indirect maimer. Tho defence on the other hand said that tho transactions were with the Rotterdam company, and that \\ itt had been put out of the transaction altogether. It was for the jury to say which was the correct view. From tho correspondence it would be scon that accusod had carricd oil trade with Witt. Tbo question was: Did the negotiations continue after tho outbreak of wai, oi did the negotiations oeasep In other words, did Duerkop on tho outbreak of tbe war take the necessary, steps to cut off his connection with Witt, or did lie continue and simply use tho Dutch company as «• means of eonveyatiw to iWitt, kowks that Witt would look

nftnr (lin cliarx)3iil of Iho goods. If Uio jury took (.Ins latter view, thou it was » naso of trading with l.lio oneiny. I' 1" jury Irnil nolliing to do with what would happon to iho prisoner in tho ovent ol his beinj; found yuilty. At 2.M p.m. tliu jury rotir«r and rotnrnrot at It.'lO p.m., in order to seolc a dirocticm us Ui whothor, if Ducrkop tnulod with Witt, it would make any (lifi'oronco to whothor ho traded Willi him as roproscntativo of iho I'Mtcrdum .company or representative of the Hamburg company. . . ITis Tlonour expressed the "P 11 ".®? that, if negotiations woro oontinued with Witt in any jnannor after tho oiitbreaK of war, tho continuation of such ncpotintions <»nstitutod tratling with the onomy. . ~ Tlio jury thon inquired if a majority vorvfiet could be accepted . . His Honour ropliod that in criminal oases a Titianimons verdict was tho only ono that could be accepted. After retiring for another fortv mmutos, tlio jnry rnturned the following verdict,: —"Tlio jury aro agreed that tiio accused is guilty on indictments 1 to 4, inasmuch as he did not broak _ofl tintions with Oustav ,f. J. Witt,. Tho jury further find that the prisoner did Irado with a company railed' the Gustav .T. J.' AVifcb and Co.s TlaiKlelsmaatschappie, which was registered in Rotterdam, in Holland; that this company had as its solo directors, Dermans; tlwt all its shareholders were Germans; that its managing director was Gnstav_ J. Witt, a Gorman, who res'ded in Germany; that if in law this was trading with an on.emy, thon the nnsoner was gnilty nnder the second and 1 third counts of tho fifth indictment." , Mr. Neavc moved for and obtained leave to argue the legal points at issue, and tho prisoner was released on bail, pending tho sottlement of these points.

SITTINGS AT OTHER CENTRES. (By Teletrrapb.—Prese Association i Christchurch, February 9. At the Supremo Court, William John Lawrence, aged 62 years, for, mdeccnt assault on a girl aged four, was sentenced to two years' imprisonment. Frederick Thomas Bonham was sentenced to two years' imprisonment for indecent assault. . At tho Supreme Court, before flis Honour Mr. Justice Sim, tho trial of Colin Aloxander M'Kinnon, on i three charges of theft, involving participation in Customs frauds, was commenced. A 1 tie last sessions M'Kinnon was tried on similar charges and foundl not guilty. Opening for tho Crown. Mr. Wright said accused's accomplices would give eviAuokland, February 9. At the Supreme Court, John Joseph Lowry, for conspiracy and obtaining £120 by fraud from a To Kmti youth, Alfred Caterer, was sentenced to six months' imprisonment. Wanganuli February 9. The Supreme Court opened to-day, Mr. Justice Chapman presiding. His Honour commented upon the smallness of the criminal .calendar. Interest centres in the Rottman murder case. Hiro ( "Wipo was sentenced to cighfc months imprisonment for indecent assault at Waitotara. Andrew Crane Birss, on a charge of breaking and entering _ with intent to commit a crime, was acquitted. Dunedin, February 9. At the Supreme Court to-day, Claude Osmond Barker, alias Jameson, was found guilty of having at Riocarton, stolen a motor cycle, the property of Harold Goggin. Sentence was deferred. Charles Jeremiah Cosgrove (22), for assault with intent to commit a serious offence at Orepuki,_was sentenced to two years' reformative treatment. At the Supremo Court to-day Allan M'Donald was acquitted on a charge of robbing Alexander Cronk of £1 and using personal violence to him. James William Cannam was coimcfced on a charge of stealing three sheep and throe sheepskins, tho property of Alex. Keaney, at Chatto Croek. His Honour said accused apparently practised this offonce for a number of years. A sentenco of eighteen months' imprisonment was passed.

PRIVY COUNCIL APPEAL UNION STEAM SHIP COMPANY V. WELLINGTON HARBOUR BOARD. By Telegraph—Prees Associfttion-Oopyrieht London, February 8. In the case the Union Steam Ship Company v. the Wellington Harbour Board, the Privy Council reserved judgment. Counsel for respondent was not called on. An originating summons was brought by the Harbour Board to determine whether the 'Union Steam Ship Company, having a contract with the Post-master-General to carry mails, was exempt from the payment of all dues to tho Harbour Board in respect of the company's vessels engaged in the service and extension of the Port of Wellington, or whether it was exempt from part of the dues only. The Chief Justice (Sir Robert Stout) held that steamers were liable to pay dues until mails were actually receivod on board. An apoeal by the Union Company was dismissed by the Court of' Appeal, with costs on tho highest scale.