INTERESTING DEBATE.

Hauraki Plains Gazette, Volume XXXIV, Issue 4608, 1 October 1923, Page 4

INTERESTING DEBATE.

IN CENTENARY HALL. A very interesting evening was spent by those who attended .the Centenary Hall on Thursday evening last to listen to a debate. The subject chosen was, “Is counsel justified in defending a prisoner whom he believes to be guilty.” The affirmative was taken by Mr C. N. O’Neill,'solicitor, and the negative by Mr F, H. Wilks, High School master. There was a large and representative gathering. His Worship the Mayor (Mr W. Marshall) occupied the chair, and briefly introduced the sneakers. THE AFFIRMATIVE. In opening the debate, in which the usual rules were observed, Mr O’Neill said that it had been recorded that solicitors wepe more or less jn league with .the devil. He denied that. (Laughter.) When he had decided to follow the legal profession he had been told that he would be a failure as a solicitor, because he was not an efficient liar, The speaker asked the audience to dismiss from their minds all conceptions of lawyers and consider the question with open minds: “Is counsel justified in defending a’ prisoner whom he believes ito be guilty ?” He said that if the people were inclined to speak without due consideration of the subject they would probably answer, “No, of course not.” And if inclined to be “catty” would add, “but he will, because he will get a few guineas out of it.” Such a defence might be justified on legal grounds, on commercial grounds, and on moral grounds. It would oe considered sufficient legal justification to quote the maxim, “A man is innocent until proved guilty.” There was sufficient commercial justiflca-i ■tion to say merely that so .that he would add a few shekels to the coffers. It would,, therefore, be necessary to narrow the issue down to the moral battleground. In order to puc tho matter in as clear a light as possible Mr O’Neill briefly outlined the history of the growth of criminal law from the days of the early Briton, the Magna Charta in 1215, the Bill ,<f Rights in 1688, and the Act of Settlement in 1700. Magna Charta was signed many years ago, and was the starting point. From then onwards the liberty of the subject became an established fact, and the passing of the various Habeas Corpus Acts had ensured the proper observance of the principles then laid down. Speaking of the maintenance of law and order, Mr O’Neill said that since we had taken away Mr Caveman’s club and decreed that the law of might should not prevail,, but only justice, it followed that wrong-doing must be discour-' aged and right-doing only encouraged. That was where our criminal code came in. That code had been evolved for that purpose, Every wrongful act that might be committed was left to the court in any given case to weigh all the evidence which might be brought forward and to mete out justice according to the merits of the case. Hand in hand with the code there had developed what was known as Common Law, which was based on the principles laid down in the Magna Charta. It had been formulated, altered, and added to as the requirements of the age dictated. At the beginning there had been just a few abstract principles to guide the courts in their administration of justice. Such abstract principles gradually assumed concrete existence from application from the dicta of the judges and the decisions in the cases. These decisions were recorded, and they Anally grew to have the force of law, and it was now settled that a decision of the Supreme Court was binding until set aside by .the Court of Appeal. Mr O’Neill briefly described the tribunal called the Court of Star Chamber, which had existed some centuries ago, Continuing, he said that it was now well established that no juror properly impanelled was accountable for, nor would any action lie in respect to, anything said or done in the discharge of his office. >ln indicating the principles involved in our criminal law Mr O’Neill summarised them as : Firstly, the absolute freedom and liberty of the subject; secondly, the criminal code with its army of officers to ensure that this freedom should not be abused, nor liberty turned to license ; and, thirdly, the common law evolved from the wealth of precedent, which decreed that every accused person should have a fair trial. The speaker said that it might be asked what had his remarks to do with the justification of a counsel’s defence of the prisoner whom he believed guilty. The inference was that with the solid foundation to the legal system which we now had, and which had been dictated by the moral conception of justice, it would be presumptions for the advocate to set himself up as a higher tribunal and judge the merits of the case out of hand. The fact that counsel defended a prisoner wa,s no guarantee that the latter would be acquitted. He contended that having ruled out the legal and commercial grounds of justification, there was one other aspect of the matter which required consideration. “Have you ever been present during the trial of a grave criminal charge ?” continued Mr O’Neill. “Picture the scene. The body of the court packed With an assorted crowd-of spectators, all watching the proceedings Intently. The uniformed court officials. The press reporters, all eager for exciting copy. The unimpressive-looking jury., The grave, keen-faced barristers seated at their tables facing the elevated dais, whereon, appearing to know what one is going to say long before the words are uttered, sits the wise and learned Judge. Then glance towards the dock. There stands the prisoner l , perhaps with face downcast, perhaps sullen and furtive, perhaps stern and deflant. No matter what attitude he adopts to cover it, there is apparent to all the shame attached to the unenviable position. There are circumstances which make it appear that he is guilty, yet he sayg he is innocent. The Crown Prosecutor, has before hira a statement of the facts gathered by the police. To him. the prisoner appears guilty, and he? .will use his best

endeavours to elicit-all the facts on which the prosecution relies. Remember,, the Crown Prosecutor* is one of the most experienced barristers in the Court. Whp would say that the prisoner should be denied an advocate to explain the suspicious circumstances, and to bring -forth the evidence which would prove the prisoner’s version of the matter’?” To. say that a prisoner should not be defended, said the speaker, was to take a step back to the conditions that had prevailed when the Star Chamber was tolerated. The grounds on which he relied in the debate were, firstly, that counsel could not usurp the functions of the judge and jury and condemn the prisoner out of hand ; the prisoner might be innocent, in spite of appearances, and secondly, the prisoner, maintaining his innocence, had an unqualified right to be defended, and it would be morally wrong for an advocate on whom he must depend to leave him to his fate. Counsel was justified in defending a prisoner whom he believed to be guilty, for rather should one hundred guilty men go free than have one innocent man unjustly punished. •(Applause.) THE NEGATIVE.

Jn opening his case for the negative Mr Wilks said that he felt like little David when he .sallied forth to kill Goliath—there was so much legal atmosphere about the debate. He referred to the clear outline of the position of the law in the British Empire, as explained by Mr O’Neill. He said that his opponent had claimed that an accused man had an undoubted right to be defended, but he could "not agree with that. He would like to place the views of the man in the street before the audience. When counsel defended a prisoner he presumed that he would do his level best to get a guilty man off scot free, and suppress any evidence that would be prejudicial to his interests. Lawyers always assumed a professional air, and worked with the object of earning a reputation of never losing a case. If counsel believed a man to be guilty, then he must be guilty in the eyes of that counsel, and would deserve the punishment due to him. Could a counsel’s own belief be relied upon, or was it necessary to look to a higher source for justification. The speaker maintained that public opinion did not justify an action. No counsel was justified in taking up a case of a guilty man against his o.wn conscience. His own conscience ought to tell him that he could not carry out a defence of a prisoner in his best manner unless he thought the prisoner was innocent of the crime. The question really was, was it for the, gain of the accused’s money, or wac it because counsel thought ne was doing the right thing ? He did not think any counsel would be justified in damaging his own conscience or character by defending a guilty person. He 'contended that if one’s best friend committed a crime, then it was a duty to see that the offender was punished. He was unable tq reconcile in his own mind how a lawyer, by taking a man’s money, knowing all the time that he was guilty of a crime, would be justified in defending him. It did not appear to him to be the proper course to adopt. No man was too old to have a conscience, and he would ask the audience to carefully weigh that, point before deciding .the question. (Applause.) An opportunity was then affor.ded the audience to speak for five minutes for either side. Rev. Jefferson contended that a lot depended on the word “believe.” As far as the moral side was concerned, he thought it was all on the side of the negative. It all depended on the law of conscience. If a counsel was clever enough in his defence to have a guilty man acquitted, then that counsel had committed an offence against his own conscience. If a prisoner was guilty, he was of the opinion that counsel was not justified in taking up the defence. Mr W. H, Blakeway said that no man was guilty until it was proved, and it was only right that a prisonershould be properly defended. He instanced cases in which people had sacrificed their lives in order to protect others. Mr G. H. Taylor said that after hearing Mr O’Neill’s discourse he had come to the conclusion that he would certainly defend a guilty man. Mr C. Halliday said it was always the aim of the police to secure a prisoner’s conviction, and he thought it was only justice for a prisoner to have counsel to defend him and prove that the police were wrong. Mrs Peacock said that in cases where crimes were committed undei the influence of drink or drugs she thought that a prisoner was fully entitled to be defended by counsel. In his reply to the negative side Mr O’Neill said that the main point raised was a question of conscience. He thought that a point had been overlooked. Supposing that a prisoner pleaded that he was innocent. One could imagine that man in the court, where everyone was anxious to get him convicted. AH the learned people there were going to speak against him. A counsel to defend that prisoned was necessary to place the facts before the Court in the light most favourable to his client. What sort of a conscience would a lawyer have to let a man go alone and unassisted before a judge and jury ? A counsel might believe that a person was guilty, but he would have no facts to prove it. It all facts pointed to a man’s guilt he could then plead guilty, and his counsel would advance the plea of extenuating circumstances and do his best to have the punishment modified. The law as it stood to-day was the evolution of centuries, and no counsel could put himself on a superior footing. If there was a shadow of doubt about a prisoner’s guilt it was counsel’s duty to see that his client got the full benefit of. that doubt, and the speaker could not see how his conscience could oe at fault. It was well known that a prisoner was not unjustly treated in a British Court of Justice, and if counsel did suppress facts in a prisoner’s favour it was safe to assume that the Crown Prosecutor would adopt similar tactics to secure a conviction. It

would not be justice to leave a prisoner in the hands of the Court without counsel tp defend him, reiterated Mr O’Neill. In his reply Mr Wilks remarked on the point advanced by Mr O’Neill, .that all sympathy would be against the prisoner' in the dock. He could not see why counsel should rush to the defence of that prisoner to obtain justice in an acknowledged British Court of Justice, Did not the Judge, in his position as such, see that the Crown Prosecutor carried out justice to the accused? The speaker considered that the sympathy point raised by his opponent could be easily disposed of. It could not be gainsaid that if a counsel really believed that a person was guilty; then to counsel that person was guilty, and should be treated as guilty, and there was mo justification in defending him. *lt appears to me,” said Mr Wilks, “to be a strange sense of duty to get a guilty man off punishment, but then, of course, there were the fees at the end of it.” Two wrongs did not make a right. If a man committed a crime, then, he thought, another crime would be committed in getting the guilty man off : yet that happened in a British Court of Justice. If a crime was committed under the influence of drink or drugs that fact in itself branded a man as guilty ; yet counsel would plead extenuating circumstances, enlist the sympathy of the Court, and get his man off. In the three minutes given Mr O’Neill for a final reply he said that in the full Court of learned people there was not a soul to lift a finger to help an accused person, and yet the accused was the only person who needed help. The main reason why the British Courts bf Justice were so splendid was because every accused perspn had the right to be defended by counsel. He contended that eveiy man had. a right to be a free man, and should not be said to be guilty until his crime had been proved up to the hilt. Counsel was not engaged to

get an accused person off punishment because he had done wrong. He said that a counsel had his own conscience ■to reconcile, and he considered that he would not be justified in letting a man be condemned if he could prove that he was innocent. This concluded the debate, and on a show of hands being taken the negative side proved to have the most supporters. The voting for the negative, that counsel. was not justified in defending a person whom he believed to be guilty, resulted in 25 votes, against 24 for the affirmative. The result was very close, and the chairman did not record his vote. Rev. Jefferson, on behalf of the Wesley Club, warmly thanked Messrs O’Neill and Wilks for providing such an excellent and interesting debate. The Mayor said he hoped that a permanent debating society would be formed in Paeroa at an early date. He thanked the audience for attending and taking part in the proceedings.