BARRISTER’S ACTION

Manawatu Standard, Volume LX, Issue 132, 4 May 1940, Page 9

BARRISTER’S ACTION

CHIEF JUSTICE’S COMMENT. ’ COUNSEL AND WITNESS. AA’ELLINGTON, May 4. The Appeal Court has delivered its judgment in the ease ,of Hutchison versus Davis, heard on March 18, allowing the appeal of A’ork Hutchi-son.--from the Supreme Court judgment awarding £250 damages in an action for breach of promise taken against him by Catherine May Davis. “A practitioner cannot lie allowed to act in the dual capacities of counsel and witness,” said the Chief Justice (Sir Michael Myers), in the course of a reserved judgment. He said he considered it the duty of the Court to draw attention to what had happened at a trial at Gisborne so that the duties of solicitor and counsel might ho clearly understood and .similar improprieties avoidod in fu-. ture. The decision sot aside judgment for damages in an action before the Supreme Court at Gisborne for breach of promise to marry. “If appellant wore not entitled to judgment, I think that serious consideration would have to he given to the question whether there should be a now trial,” said the Chief Justice. “One of the witnesses called to give evidence on appellant’s behalf was his solicitor. Air James Blair, whose testimony was directed particularly, though not entirely, to the question of rescission. He gave evidence relating to interviews that had taken place between himself and respondent, and also between himself and Air Burnnrd as solicitor for respondent and her brother, Mr AValters. SERIES OF QUESTIONS. “He said in particular that respondent had never made any complaint whatever to him of any breach ol promise by appellant, that tlie question of marriage was not mentioned, and that respondent made no complaint of a breach of promise or of any other matter as against appellant. Ho also spoke of Air AA’nlters’s claim as represented by Air Burnard to be a claim by that gentleman as a person standing 'in the place of a parent to respondent .for damages for seduction. Air Blair said that on one occasion Air Burnard had suggested a breach of promise, but that the suggestion was not pressed or treated seriously. “Air Burnard, who acted as counsel for respondent at the trial, in cross-examination of Air Blair, put a series of questions such as these : AA’as not my attitude so-and-so at the conference that I had with you ? Did I not say this? Did I not say that? The nature of those questions is clear from a persusal ftf the notes of crossexamination. “To my mind all such questions were exceedingly improper,” said the Chief Justice. “It is true that in New Zealand most practitioners,” though not all, practise as both barristers and solicitors, but 1 have never yet heard that that entitles a practitioner to act otherwise than in accordance with the rules of professional conduct which have boon laid down by and for the Bar of England, and which we have always followed in this country. CANNOT BE ALLOWED. “A practitioner cannot be allowed to act in the dual capacities of counsel and witness. If there is a possibility of his being required as a witness he must make his election at an early stage as to the capacity in which lie will act. In the present case, obviously Air Barnard’s questions were calculated to convey to the jury by suggestion evidence that he himself coiild give. Ho was, in effect, indirectly giving evidence. “According to the agreed statement read during the argument, he went further liv asking leave at the conclusion of' Air Blair’s testimony to go into the witness-box and give evidence himself. This application the learned Judge, of course, refused. But the mischief was done. Counsel for appellent obviously was placnd in a position of great difficulty and according to

the agreed statement already referred to he then made the admission—presumably constrained by the embarrassing position in which a fellowpractitioner was placed and also by the embarrassment which he must necessarily have felt lest his own case be prejudiced in the eyes of the jury consequent upon Mr Burnard’s questions and the refusal of the Court to allow him to enter the witness-box and give evidence—that there was a ‘distinct cleavage’ between Mr Blair and Mr Barnard.”