THE NATTRASS CASE

Dominion, Volume 12, Issue 199, 17 May 1919, Page 3

THE NATTRASS CASE

REHEARING APPLIED FOR COURT REFUSES APPLICATION POSITION REGARDING NEW - .... EVIDENCE •• ' COMMENTS BY MR. FRAZER A sequel to the'case in which Howard Nattrass was bound' over to keep the peace-for twelve, months oil. a charge of being, deemed to be a rogue and a vagabond, in that he ivas found by night on the premises: of William , Strangle on, 11 Fallowfield Avenue, without lawful excuse; was heard before Mr. P. V. Frazer. S.M., at the Magistrate's Court yesterday morning, when application was made by Mr. M.. Myers, counsel for Nattrass. for a rehearing of tho matter. The grounds -of the application were: (1) That the witness Fahey was mistaken In liis identification. of Aubrey Gualter, 'and, also'.in his identification of the: defendant: (2) that further evidence showed that neither Aubrey Gualter nor the defendant was upon-the premises mentioned in the information at th.e.time deposed by Fiihey; (3) it appeared that an injustice had been dono to Nattrass.and to Gualter. . Mr. Myers produced an affidavit, which stated'that "Forster Nattrass had called upon Mr. Myers, and said he was tho person for whom Aubrey Gualter, mentioned ..by iFahey,. had'been mistaken. Evidence was available to. showMhat Gualter., at the time when he was'said by Fahey to havo been upon the -premises. was. in fact at the'house of Sir. Sargison, Hiftaitai. Since the' informa- ' tion against Howard Nattrass had been heard the 1 following letter,, prepared by Mr. A. Gray, li.C., under instructions from the signatories, had been received bv the defendant, Howard Nattrass:— )

Wellington, May 15, 1919. Ilr. Howard Nattrass, Wellington. Dear .Sir,—With reference to the recent case in the Magistrate's Court, Wellington, in which _ sou _ were charged by the police with being 'a rogue and a vagabond by reason of being'found by night, on the premises of William Strangman, in Fallowfield Avenue, at about 10 o'clock on Friday, May 9, we, the under- , signed, desire, in justice, to you,. to' 'state that we,are four of the six persons. some'of whom were actually on, ;'and the others about, .the' premises in question, at that time. ;The other two persons', were Joseph Henning and B. W. Miuins, both of whom" are at present absent from Wellington. Neither yourself nor Mr. Aubrey Gualter was with us, or on or about the premises on that occasion . The Cadillac; closed car mentioned in the evidence given by Fahey was driven along Courtenny Place by the undersigned', William W. Carter, and.not by you, _as' alleged, and-you. were not in the car. We aro quite prepared to give our evidence in support of the foregoing statements if you 6hould require us to do .so. The undersigned Forster Nattrass further desires to state that he is the person who had the conversation with Fahey deposed-to by that-witness, and for ■ whom, Mr. Aubrey,.Gualter has been , mistaken. : ."-i ■ Yours faithfully,' :. (Sighed) ' WILLIAM WILSON CARTER, - Garage .Attendant, .18. Moles-'-worth Street. HARRY DOUGLAS NATTRASS, ; . Motor Engineer, 18 Moles- ' worth Street; RUDOLF DATJBE, ■ ' Motor Engineer, 18 Moles,w.orth Street. "' FORSTEK NATTRASS, ' • Civil - Servant, 13 Vivian Street.' ' ; k

.The application*;-said'; ltt.virjer?,.Was' tlie" Justices of the Peace Act, which said ' tlmF any' Jus-, tice. before \rhom any' information/ or informations, had beeri served, might,' in his discretion, grant a rehearing of an information or complaint upon such terms as he deemed fit. The object of Bection 120 was to give an opportunity of remedying an apparent injustice, if' upon an application under section 120 it was shown that a good prima facie cnsn \vas made out for a rehearing,' and that the applicant had suffered an injustice it was submitted with the greatest confidence that, on the material before the Court,, it would be almost a scandal it an opportunity was not.given to enable what was apparently a .serious injustice to be remedied. it llio evidence wnicu he was prepared to put before the Court ■in support' of the application was true and had been called m'tho'previous-case, it must have resulted in the dismissal of the information so far as iNattrass wan concerned.' .' The" alleged offence wa's -'ji J to have been committed at 10 o'olocic en Friday night, :and -Kattrass was Served about five minutes past 12 on Saturday. The information was made and the police wanted to have it' disposed of promptly on the Monday. It' Kattrass' was not there it was impossible for liiiii to assume that there would be evidence purporting to identify-him. lie was entitled' to rely on .the evidence of the alibi. ;Be that as it may, counsel who was responsible for the conduct of the case had no knowledge of whom the persons were who were on the: premises.' Even -supposing ho had' known, no counsel could Lave properly called those sis men unless they had iirac indicated that they wero prepared to give evidence, for the reason that any one of them was entitled to say, "i refuse to answer. No counsel would have acted fairly, had he called men who.might nave refused to answer .questions on the ground that they might have incriminated, themselves. "I would not inaite this application now," said Mr. Myers, "unless I had before mo the definite state* ment by these men that they were jre-pared-to come here and give'evidence on oath and take the consequences of the action which they have' -committed, and ior which somebody else has been wrougly convicted or wrongly found guilty.' Mr. Sualtcr wasf said to have been present on that occasion. -Air. Gualter wa< .ndfc charged, but I want to point out to lour Worship that the observations Your Worship made at the conclusion of the case indicated plainly to the public, that •Mr.:Gualter, m Your Worship's opinion, ■had lied, and Your Worship believed I'ahoy. ,1 want to say- that it was unnecessary, and'it is unnecessary to hold, or for me to suggest—and 1 never have suggested—that Fahcy was a dishonest witness. What' I. suggest now, with gwater reason than I o.oiild possibly:do tlie other day, is that Fahey, although a perfectly.honest .witness,, was mistaken, as any witness might, be mistaken, on the question of identity." • The Girl and the Voicc. v-

saiii and emphasised flat Fahey <i,d not know Gualter was 'hut Tn~w mp i"-' y 'i b , ut rcc otfnised; him, ll£ % V 1,1 ?. lla !i entire, y overlooked tifo .tact that (miter. told tho Court frankly and truly that' about two months ego he had ton t„ Strangman's hou£ n lth .a person from Hawke's Bay ' to discuss certain matters, and that Fahey must, have known that .ho .was in the neighbourhood on that occasion. ■ It might be that that induced Fahey to think that Gualtor was-present on the (ccasion under notice, Again, His Worship lmd said that lie relied to 6ome extent on tlie agitated condition of the girl'as ; indicated by tho mother in.lier e\ndence and that he regarded it as some corvolioration that it was. Nattrass's voice that slie heard outside the window. His Worship-- had overlooked the fact that, Whether it wa9 Nattrass, or whether it was someone else, the girl knew that the person or persons,, '.whoever they were,' were there for the purpose of communicating with her or helping hor iii some way. AVhetlier .it was Nattrass's voice or someone else'.?, her agitation would have been just the same. Six., men had \como forward and said: "We know we . are liable to be punished, but as men we are prepared to take our punishment .-rather than seo another man. wrongly accused, wrongly convicted, and .publicly vilified.". Mr. Gualtor was not a defendant, but he. was a reputable and decent business man and citizen, and either lie was at the house or ho was not. He swore that he was not,.but Faliey honestly, yet mistakenly, said he was. Forster Nattrass had come-forward voluniarily and ?aid: "I am not . going to

see that man vilified by tlio public and wrongly accused, and 1-say at once, and I am prepared .to take my punishment if there 'is' punishment going, that I ...was .the.man for whom Mj;. Gualter was wrongly mistaken." Not only that, hut Mr. Gualter.. told tho Court that lie was at tho house'of; Mr. Sargison, at Hatal- ' taiv" Sargison had stated that what Gualter said was 'true, and' that ho was quite prepared'to givo-evidence on oath .to that-effect/- ilvs. Samson was pre- • pared to xlo' the Same. . If tho evidence "was correct, counsel submitted that His •Worship -could riot fail to seo- tliiit a ■ Bei'iou3 v inju6tice-'"hnd been done. unwittingly 'by tlie Court to' Mr. Gualter. It was only incidental to the case against 'Nattrass, but if the Court said that, prima facie, an injustice had been dono to'a person who had lived in the city for years and bore ah honourable character, then'everything possible should, be done to remedy the injustice. With regard to-Nattrass counsel was not going to say for a. moment, assuming that he was not about the premises at the time,, that his conduct might not justify hostile and eovcro criticism. That might, or might not be so, but with that point counsel was not at tho moment concerned. Nattrass was charged with being a rogue and a vagabond by reason of his being on certain premises at a, certain time. If -he was not there, then His Worship',- 1 in' proceeding on the assumption, based on the evidence then available that he was there, had,- prima facie, done the man serious injustice. It would be contrary to the tradition' of our system -of justice if an opportunity for remedying the injustice were not given. The effect of a refusal might be a serious matter to both men.

Insnector- Marsack said that in his opinion defendant had had ample time before the first case came on to instruct his solicitor that the six men mentioned in the affidavit wore at the house. He did not'think it was possible for the police to go'into the merits of the case, and there wero matters connected with it which it was'not proper to refer ,to at the present time. 1 Court Must be Satisfied. Mr. Frazer said tljat in considering the question of granting a rehearing the-Court'had-to bo satisfied that the new evidence was not available to the defendant with all due diligence at the time of the original hearing. In other words, the Court would have to be sure that the defendant had no . possible opportunity,' by using 'reasonable energy, for getting hold of that , evidence in time for the original trial. Secondly, the evidence must be such as not onlv might it have caused the ,Court_to como to a different conclusion had it peen -before it .originally, but it must be such as would have caused the Court to have reached a different conclusion. The Tuanv object of tlie law - was to admimsteijustice. "The Courts naturally would ■be liable to receive numbers of applica-tions-of-this "kind if they were granted freely,";- said Mr. Frazer, _ "and, there would always be a possibility of perjured evidence after one side had heard what the other side had to say by preparing evidence to meet it. That is a general observation and hiis nothing to do with the facts of this 'case. Thero' is a general rule that ;iri justice to' everybody there should be nil- end to litigation as soon as_ possible. Litigation should not be indefinitely protracted by numerous hearings and rehearings." With these principles in view, the courts have evolved the rules that have -already beeu cited. These rules havo been quoted in different form by numerous judges, but they all cite them in a very similar way." Mr. Frazer then referred-to th(T- connection of the witness Gualter with tlie case. The witness Fahey swore positively that "be (Gualter) was on tjie premises, and that he himself-had had <1 conversation with hi 111. He also said he knew Gualter. and was not mistaken., Of course, that was only oath against oath. Unfortunately for, himself, when interview ed by the police, Gualter refused to say whert> fiu hyd been on the Friday in question;' and wound up by saying: "I won't say whether I was there or not." "Of course," remarked His Worship, , "that tolls against a man." _ A man ' was not 'bound to give tlie poiicc information on a matter like this,' but a wise .num:.would hnve.-:dOne so, even though lis mistook the object of the police; or thought that the. police were taking up' a'soiiier,-hat hostile attitude. One.could understand a man getting "rattled," but after lie'had. had an opportunity of cooling down one expected him to act as a reasonable man' would act. At tho same time, Gualter was nbt a defendant to.,the action, and. if his conduct had : .laid, ~,him. open to, sonic doubt in the■ mind of tlie (iourt,.,Eis Worship thought lie (Gualter) was largely to blame for that;-, ."I- am not, ol course, ucluaily finding; at a fact that-lie was on the .premises,, although I certainly indicated j that,-in my opinion, his evidence: was not altogether satisiactory," His Wor- i ship went on. "That was based, of course,'>'ery largely on the fact that ho had acted somewhat peculiarly when spoken to' 'by the poliee. So far as Mr. Gualter is conienieil, without going intO' the merits of 'this application, the .evidence against him was only that of the witness Fahey and tho evidence of what lie had said to the police when questioned ' about the matter. That was all that was against him. In fact, .if 110 had been charged himself with' tho offence that evidence would hot have convicted him in the circumstances. The only thing'so far as Gualter is concerned was that there was a suspicion in my mind.. If he had told ■the", police,' as he fays, (that he had been at the house-:of-:Mr. Sargison, and the police had had an opportunity of inves •tigating that alibi straightaway, no doubt there would have been nothing further said about it. The Judges havo always laid it down that if a man is going to set up an alibi he must let the other side have an opportunity of investigating it at the earliest possible moment. However, so far as Gualter is concerned,' I do not say anything mors than this: His attitude towards the police was unfortunate in that it really had the effect of creating an impression against him I will put it that way. I don't want to carry the roattpr any further, so far as he' is' concerned." . Nattrass and the Raid.

In regard to the main application, His Worship said that three of the four men whoso names were mentioned iii the affidavit were' apparently employees of the Nattrass and Harris firm—at any'rate, they save their addresses as 18 Molesworth Street. 'Two ci tho signatories to tile letter wero brothers of defendant Nattrass, ■ "It seems to me' impossible to think that these men should have planned and carried out the raid on Mr. Strongman's property on the Friday night without the knowledge of Nattrass himself," remarked Mr. Frazer. "It was tho girl that Nattrass was concerned' with. .It had been stated, and not contradicted, that on one occasion ho got her .ajvay from the home for four weeks, and on another occasion got.her away from hospital.' He had also been'ordered out of the house for frying to induce the girl to get away from thero after ho had been'allowed to see her on the pretence .that he wanted to consult her on ,a matter with- tho ■ liooks of the firm'; 'Bearing that in mind,.it ..was impossible to renliso that tho four 'men, with two others, should ( have planned and 'executed'the raid on' the'house of Strangman, without; Nattrass himself knowing all about, it. ' In fact, it might bo suggested that, if he was not thero himself,-' ho originated it, One of tho firm's cars-was-there; -That was admitted in tho letter: Two ot the men were brothers, three out of four were employees. Therefore, it soemed very hard l 'to say that- th® first • requisite ' o( ' the ' application for a icheariiifl. had been complied with— that tho e'videnoo was' not reasonably available with due diligence to tho defendant at tho time of the original hearing. • It was said that tho moii mentioned in the affidavit should not have been asked to implicate themsolves. "They are quite willing to implicate themselves now thai they find that on the original hearing the defendant was not convicted, but was ordered to keep tho peace," commenteft Mr. Frazerl ' "Itis easy to bo brave after ■tho event when they know • there is i>c> risk."' Their counsel could only saylhat •at- the-time of the htaing the responsibility was not taken of bringing them before the Court and tendering them as witnesses becailso they might have incriminated themselves by giving ovidence. "I am not . prepared to say whether counsel acted in the best way in taking that view," said His Worship.. "Possibly ho did not know of the existence of these witnesses. In fact, I am inclined to think that he waa in 6tioh a position. So

that brings ,us back" to this; That tho knowledge was evidently in tho poa« 6ossion of the defendant, and for some reason he did not let his own counsel know." A Common Interest, The first requisite had not been com. plied with; and he did not think it was necessary to deal with the second. Tht> men all" had a common interest with Nattrass, as they were brothers and cm. ployces. They know that an action for ■£3000" for scdncti on was tanging over Nattrass's head, and they were all morn or less involved in the particular occurrence of. Friday night. Mr. Myers: That does'not apply to the other two.

His Worship: No, they have not signed. Mr.- Myers: They' have indicated ' their willingness to come here. ■

; - Mr.-Frazer: I don't know whether they are employees or not.. Mr. Myers: No, sir, they aro not. .His Worship : These people are more or less interested in the defendant, and are part of the conspiracy—they are all (onspirators. They . have all formed tlfe common intention'•• of doing something ■which,-'lf-it is not an actual breach of the criminal iitw, it is an improper act. If they are prepared to do that in the interests of Nattrass, why not go a step further, and shield him altogether by their evidence? I don't say that they would absolutely do so, but I am putting that forward as a possibility when I am asked to consider that the evidence is so conclusive that if it had b.cen given in the court before the application would nave been dismissed. ' Considering the position of those people,. he could not sav that if lie had heard their evidence 16 would have been absolutely.convinced that iNattrass was not in the matter. 1 he-absence of the'first requisite was tatal. I'or some reason or other defendant elected not to bring that evidence before the Court; and'lio was'bound by that action. "Even. if on a rehearing 1 crime to the conclusion that Nattrass was not. on the premises, but was behind this business,-. I should still prob- ,., ?? ve considered it was necessary to mnd nira over to keep the peace, which is all that has happened to him," said Mr. x i'azer. v "He has not been convicted oi anything. So that, even if he lind not been 011 the premises, there is no possibility of injustice being done to him by Ming ordered to keep the'peace. He may mink that he .has evidence to show ■ hat lie was not there, and may think.ho is suffering under an injustice, but I sav'that, is his fault. ."If he had evidence that might have exonerated him it was _ his business to bring that evidence forward at the proper time. The application is refused."