SUPREME COURT

Dominion, Volume 13, Issue 111, 4 February 1920, Page 8

SUPREME COURT

A CASE FROM DUNEDIN CROWN WITNESS'S SILENCE TRIAL POSTPONED The Supreme Court resumed at 2 p.m. yesterday for the retrial on a change of venue of James Reynolds Hayncs and Norman Ncylon, who were charged with unlawfully using an instrument to procure miscarriage. Their Honours jfr. Justice Edwards and Mr. Justice Stringer wero on the Bench. Mr. W. C. MncGrcgor, K.C., with him Mr. P. S. K. Alacassey, appeared for the Crown. Mr. T. M. Wilford appeared for Haynes, and Mr. P. W. Jackson for Neylon. On tho previous day Gladys Batchelor, the principal witness for the Crown, had refused to give evidence, or rather had not spoken at all except to utter the ono word "Yes" which was scarcely audible. Tho hearing had in consequence been ai journed until yesterday. Mir. MacGregor said: In view of what took place on the previous day, I have communicated with the Solicitor-General and have decided to make application under section 431 of the Crimes Act to have the jury dismissed and Iho hearing postponed. It is quite hopeless to expect the girl (Gladys Batchelor) to give evidence. She was carefully instructed by Your Honour as to her position, and it seems to mo useless going further with the''ease. I have to ask Your Honour in view of fho turn of events to act under section 431 of the Crimes Act by discharging the jury without giving a verdict and by postponing the trial until tho next criminal session at Wellington.

Mr. Wilford: This application takes me completely by surprise. I must say | that it seems extraordinary thnt I should not havo been informed of tho course intended to bo taken. Ordinary courtesy demanded that I should havo been informed by the Crown Prosecutor. My client has come to the Court at great expense and I protest against the jury being discharged without coming to a decision. If my learned friend's case lias failed he must take the consequence. Tho accused havo been tried twico in i Duncdin and both juries were unable to I agree on a verdict, and a third trial wns granted with a change of venue. But there must be a limit to tho Crown's right of action against the individual. I think my friend has reached an impasse in his case, and it docs not seem to me that ho can claim any 6uch privilege. If this case fails, it fails. What sort of a position is my client in? For three months until the next sitting of the Court, ho has got to 6tand tiie | ignominy of being at large wit li two juries undecided whether ho is guilty or not. The law does not want to stone a man but rather to see that ho has a fair trial. It would not have been without precedent for counsol for the Crown at the end of the first trial to havo aban- j dolled further procedings, but ho tried I a second jury and that jury refused to ; agreo upon a verdict. But the law allows three trials, or four if the Judge certifies. My friend not only applies for a third trial but also applies for a change of venue to Wellington. Now when we aro ready to proceed ho says: "Let us postpone it for three months." Wo havo no undertaking that tho girt will speak in three months, no certainty that wo will not have to go through the samo procedure again. My learned friend shoultl have said: "Two juries have disagreed and 'I am satisfied." I have not been treated fairly by my learned friend in his thus- upon me this application without notice. Mr. MacGrcgor replied: I make this application on behalf of the Crown, and I submit that the emergency that has arisen justifies me in making it. This witness had been warned by Your Honour and still refused to speak, and the section of tho Act was designed to meet such a case. This girl's refusal to give, ovidenco is not for tho purpose of protecting herself but for the protection of one or the other or of both of tho accused. She must have been carefully coached to take up this attitude. Tho only remedy that I can see is to discharge the present jury and postpone the case until next session at Wellington; and I give my learned friend tho assuranco that the case will then be decided. There will bo no question of putting tho case off. Mr. Wilford: My learned friend has introduced new matter, for he has stated that the girl has been well coached. I understand that tho girl took up the samo attitude at the second trial in Duncdin and was ordered to stand down for an hour and a half; she went back then to the witness-box and made a_ statement, so that her refusal to give evideuco here was not a sudden resolve; it was evidently the course which she mapped out for herself in Dunedin. Mr. Justice Edwards said that in this matter they had to consider tho ends of justice, anil the fact that the girl had, refused to give evidence. He had associated with him Mr. Justice Stringer and thero was no man in New Zealand who had a wider experience of criminal law than Mr. Justice Stringer. Mr. Wilford spoke as if his client had been tried; on this occasion he could not be tried because tho witness who gave evidence on a previous occasion now refused to do so. It had been impossible to come to any conclusion at all. This attitude of the witness was in tho interests of one of the two prisoners, and it would bo fatal to the administration of justice if it were possible for a witness to simply stand mute in Court to frustrate the trial of a prisoner. That position was, of course, quite impossible. It might bo a hardship on the prisoners that they hpd to be tried a third time. It might be a hardship for them to lomo to Wellington, but he was not concerned about that. His Honour Mr. Justice Sim, for very good reasons no doubt, had ordered the trial to take place in Wellington, and what he (Mr. Justice Edwards) had to consider was whether or not the witness (Gladys Batchelor) should frustrate tho trial as ordered by Mr. Justice Sim by adopting the simple expedient of shinding mute. The order asked for by tho Crown would be granted. Mr. MncGregor asked thnt tho third trial should be fixed tor Monday, May 17, so that everyone concerned might have a definite date for attending.

His Honour agreed, and the trinl was fixed for 11 a.m. on May 17.

Mr. Wilford asked for hail, which was granted. Hayncs was bailed in his own recosnisancf- of .£3OO and two sureties of .£3OO each, and Neylon in the sum of ,£2OO and two sureties of ,£2OO each.

TIMARU SESSIONS

By .Vniriatlon

Tlmaru, February 3.

The Supremo Court ordinary session opened to-day beforo Mr. Justice Herdman. There were, only two criminal cases—A. C. T. Lamb, charged with stealing £M worth of drapery from his employers, Messrs. T. and J. Thompson, was found not guilty, /-censed asserted that ho had bought everything found in his possession with tlio idea of starting a shop, and fellow-employees gave evidence that they had from time to time, sold him many goods. Lamb pleaded guilty to a charge-, of breaking gaol at Tinmru, and will bo dealt with on this ehargo to-morroT. An Ashburton ca6o of alleged carnal knowledge h proceeding.

TARANAKI SITTING

By TclcKrnp'i--l > rcs» Asnofltotion. New Plymouth, February 3. Tho Supremo Court sitting opened today before Mr. Justice Sim, who congratulated the district, on the absence of serious crime. There were only two cases for tho Grand Jury—nn allegation of theft against Edward Parfit, labourer, r'itzrov, and one of mischief against .lamos'O'N'cill. wheelwright, Kltham. The latter was thrown out, and the case against Parfit was adjourned till next session owing to the absence of n material witness for the defence. The rehearing of the civil case of Ingram and Colsoii, share milkers, versus Ebcuczcr Wonldridgo. motor garage proprietor, n claim for .CIOOO damages for injuries alleged to have been received through the negligent driving of a motor-car by one of defendant's employees, in which tho jury disagreed last session, was commenced.