APPEAL COURT

Hokitika Guardian, 30 September 1930, Page 5

APPEAL COURT

HAZLETT APPEAL

AGAINST DETENTION ORDER

By Telegraph, Per Press Association. J

WELLINGTON, Sept, 30

The Court ol Appeal to-day is dealing with the appeal case of Cecil Hazlett (North L'a.iori, Otago) from -he judgment of Justice Smith in refusing to coniirm and make absolute a, rule nisi to show cause why a writ of Hal>eas Corpus should not issue to rhomaci JiuttimoVe, to deliver thebody of Cecil Hazlett, detained in his custody, as officer in charge of a certified Inebriates home at llotoroa. 'The facts as found by Justice Smith are that on lfitli December last E. O. Haziiett made complaint under the Reformatory Institutions Act before Mr Bartholomew, Magistrate at Dunedn, that Cecil Hazlett, a brother of E. C. Hazlett, w«p an habitual inebriate within the said act. *'

Having made the complaint, E. C. Hazlett, with his .solicitor,--. Payne, interviewed the. Magistrate find informed hitii of-the condition of' Cecil Hazlett as he understood it. He told the Magistrate that he had on several occasions seen his brother very ill from the effects of excessive indulgence in alcoholic liquor, and that he informed his brother than unless the latter ceased to take liquor ii&ex : ce»s, he would be compelled to apply., to.-have him detained, in his (own interests, in some institution." (. V

He also informed filfe‘Magistrate of , the exact condition in which he had seen his brother on previous occasions. The Magistrate on being informed, decided to iesue a warrant for the arrest of Hazlett in .lieu of a summons. The hearing of the complaint was' fixed for two o’clock on 17th December at North Taieri. On the afternoon of 'l7th Hazlett was in a low state of health and suffering severely from the effects of aleolioli.C; liquor. : , His. condition was such yiai- agreed' it Would have ;he4h|Bangerou,s to , move him to Dunedin to hear;,;the . complaint. , . At: two p.m. Payne and..two constable)? Avcre admitted- to • Hazlett’s home,; 'Hazlett recognised Pavne, wh£> asked Him . Avliej-hei;he, would consent to an order:<for.'detention- in an institution;. Hazlett ip''consent'’.kind the constables, then' executed^■ a'S warrant. The constables were required by the warrant to bring him, (before a Magistrate. They did not do this literally, but remained by his bedside for a Tew until a Magistrate accompanied by the Cleric of the Court, 'two doctors and two brothers of Hazlett entered the room. The Clerk of the Court read the complaint' to' Hiizlett, «ind asked him whether lie consented to the, order being made. -v-w v Hazletf was in a weak state, but was wglikaware (of the nat'ufe of, the proceedings. vV . •A It dops not appear what his answer to the; Clerk hf ihevCourt was. but the Magistrate .explained .to Hazlett that it was to be determined, whether . i n ; . his. Aiwn■ lie should tie' fletaiiied'in 'an institution, and asked him if lie understood the application. :

Hewlett, replied:—“Yes, and I want to go there.” f Having ascertained that Hazlett understood the application, the Magistrate decided to hear evidence. Justice Smith held that the hearing was substantially within the provisions of the Justices of the Peace Act, which regulates proceedings when defendant does not admit the truth of a complaint.

The main objection taken by Mr O’Sullivan, counsel for Hazlett, in the Supreme Court, was that the order for;Retention was made in proceedings, which were in excess'; of the Magistrate's jurisdiction, because the complaint was not heard and determined by a Magistrate as required by statute. Justice Smith, however, refused to uphold this contention, and discharged the rule nisi. The appeal is now brought from this decision. On the Bench are the Chief Justice (Sir M. Myers), Justices Herdman, Blair and Kennedy. Mr J. J. Sullivan is appearing for appellant and Mr A. H. Johnstone for respondent. Dealing with the preliminary point of the right of appeal, Mr Johnstone, solicitor for respondent, said he had considered the position. He was of the opinion that is the matter was -civil, not criminal, there was the right of appeal and he would not take objection to the jurisdiction of the court to hear the appeal.

Mr Sullivan said the uncontested evidence showed on 17th December that Hazlett was seriously ill in bed when Payne appeared and asked him if lie consented to the order. Two policemen in plain clothes came in and later the magistrate). The form of trial took place and the order was made against Hazlett. Hazlett’s condition of health was very poor, and even when he arrived at the Island two days later, lie was still in the laststages of delirium tremens. His submission on these facts were (1) That tne appellant was irregularly a-n'cl illegally committed, in that he had no Trial or hearing. (2) That he was committed unheard, without on opportunity of being heard. (3) That lie committed no offence. (4) That there was a want of or excess of jurisdiction on the. part of the magistrate for the reasons contained in submission 1,2 and 3, and

also because of the time or place of hearing. Sullivan contended that one of the most sacred principles of law was that no man should be condemned unheard. The Magistrate had explained that hfixed Taieri as the place of trial because tlie case was an urgent one, bur nevertheless he had taken his time am: did not go to the appellant’s home untill 2 p.m. the following; day. ' The Magistrate decided to hold the proceeding in private of his own accord, but Sullivan submitted that he should only do so on the application of the parties. Hazlett was deprived of all warning: the proceedings were sprung upon him suddenly and he was not given any opportunity of preparing his defence and contesting the charge. It must have been clear to the Magistrate that Hazlett could not possibly put his case before him and lie -should have made certain that Hazlett had a chance of stating his case and if necessary, should have adjourned the hearing to a later - date to enable Hazlett to do .so.