MAYOR’S COURT.

Evening Star, Volume IX, Issue 2678, 16 September 1871, Page 2

MAYOR’S COURT.

This Day. (Before his Worship the Mayor.) DRUNK AND DISORDERLY. Eicliard Biddy, for the above offence, was fined 5s or 24 hours’ imprisonment; and Elizabeth Mow'bray, lUs or 48 hours. charge or vagrancy. William Hall, on remand, was brought up on warrant for disobeying a summons of the Mayor’s Court, charging him with unlawfully occupying a house in Cumberland street frequented by persons having no visible means of support. The evidence iu this case was taken on a previous examination ; and his Worship, before giving judgment, proposed to recall Detective Farrell, in order to sadsfy himself as to the occupation of the the house by the defendant. Mr Harris objected to his being recalled, and quoted passages from various autho-ities to show that the case for the prosecution being closed, it was contrary to practice to call fresh evidence. He held that there wasno evidence to prove occupation by the defendant, and the Bench had heard what e;l#h party had to say. The case must be dismissed on its merits ; for it was only when the defendant himself had called witnesses that any other witnesses could be heard iu reply. He was not about to call witnesses for bis client. The course his Worship proposed topursue had never been the practice in Dunedin. AVhenever similar applications were made for rehearing a witness, they were uniformally refused, and there was no statutory law to reopen the case again.

Tne Mayor : There has been no application as far as I am aware that fresh evidence shall be adduced. 1 have a desire to ask Farrell a question to satisfy myself. Either a judge, magistrate, or justice, has power to recall any witness, and examine him. Mr Harris : That would be placing the' Court in precisely the opposite position to that in which it ought to be placed. Judges, especially where there is no professional assistance to a defendant, always consider

themselves as counsel for a prisoner, but by pursuing the course you propose, it will [dace you in the most extraordinary position a justice can be placed in, namely ;—That when the case for the prosecution has broken down, the magistrate is proposing to put himself in the position of prosecutor for the Crown—a position that I should be very

sorry to see any magistrate in the British dominions occupy, as nothing could be fhorc detrimental to the reputation of the Bench; The Mayor : It does nyt matter to the Bench whether it is the fiftieth or hundredth time the defendant has been charged. I believe that justice is administered as fairly in this Court as in any Court in New Zealand.

Mr Harris : Hitherto I have treated your Worship’s decisions with respect, for substantial justice has been done, and I therefore regret that for the first time an exception should be made in your Worship's case. A practice followed for more than twenty-one years in another Court in Dunedin could not have been maintained during that time without being based on law and justice also.

The Mayor; In this case the witness Farrell said, in effect, he wont to the prisoner’s house, and saw him in that home. The only thing you object to is that he did not swear to the fact from his own knowledge, that the prisoner was the occupant of that house at the time; but everything he said went to prove he was the occupant. Mr Harris : 1 submit it must bo proved by the prosecution that he was the occupier, it must lie proved before a case is closed, and no re opening of evidence on that case is admissible. If that is done, I shall sit down without cross-examining the witness; and I do not say it as a threat, but 1 shall have to move another Court to quash the proceedings.

'1 lie Mayor : I have not the slightest doubt I have power to recall a witness. The Bench has to be sarisfie 1 : the cuds of justice require it. In tliis case I think I ought. Farrell said quite sufficient to justify me in convicting the prisoner without fresh examination. lam justified in my opinion by Mr Justice Johnstone who says that judges or justices have power to recall witnesses where it is necessary to tbs ends of justice, t am not merely depending upon the opinion of Justice Johnstone, but am fortified in this course by one who is considered one of the most eminent members of the Bar in Dune din.

Mr Harris : I quite concur in that opinion ; but if you will look further, you will see mentioned the purposes for which they may he recalled. It must be in regard to evidence already given, not to open up new evidence in order to bolster up a defective case. I feel quite sure the Commissioner of Police will corroborat me when I say, that in no case in his experience has such a thing been done. The Commissioner of Police : I have often heard of magistrates recalling a witness. Mr Harris: What ! to patch up defective evidence ? Did you ever know a resident Magistrate in Dunedin adopt such a course of proceeding ? The Mayor : I shall decide to recall the witness Farrell. Mr Harris : In that case I must give notice I abandon the case, and reserve for myself the right to move in the Supreme Court to quash the decision. The Mayor ; There is no necessity to give notice. Detective Farrell recalled and examined. By the Mayor : In your evidence in the case before the Court, did I understand you to say that the prisoner was the occupant of the house? Yes. The Mayor: You knew then, and know n -w he was occupant of the house at the time? Ido, your Worship. (The witness spoke so indis* inctly that we could not catch the remainder of his answer.) TJie Mayor to Mr Harris : Do you wish to cross examine the witness ? Mr Harris ! Oh ! no, no. His Worship deferred giving hi- decision to Tuesday, and the prisoner was remanded on bail to that day.