NO RE-HEARING

New Zealand Times, Volume XLIV, Issue 10282, 17 May 1919, Page 8

NO RE-HEARING

THE NATTRASS CASE NEW APPLICATION REFUSED BY MAGISTRATE. A further phase of the Nattrass case came before Air F. V. Frazer, S-AL, in the Magistrate’s Court yesterday, when Air M. Alyers, on behalf of Howard Nattrass, applied for a rehearing, on the grounds that the witness Fahey was mistaken in his identification of Aubrey Gualter and also in respect to Nattrass; that further evidence showed that neither Aubrey Gualter nor the defendant was upon the premises mentioned in the information at tho time deposed to hy Fahey; and that it appeared that an injustice had been done to Nattrass and to Gualter. It will bo remembered that Howard Nattrass was charged, before Air F. V. Frazer, S.M., on Monday, with being a roguo and vagabond, in that ho wak found by night without lawful excuse on the premises of William Strangman, 11, Fallowlield avenue. Ou that occasion the defendant was convicted and ordered to be bound over in sureties to keep the peace for twelve months. QUESTION OF IDENTIFICATION. Mr Alyers, in making the application for a rehearing, produced an affidavit wherein one Forster Nattrass said that ho was tho person whom Fahey had mistaken for Aubrey Gualter. Counsel said that evidence could be produced to show that Gualter, at the time whan he was said to bo seen by Fahey, was in fact at tho house of Mr Sarginson, of H’ataitai. Since the information against Nattrass had been hoard, the, following letter, under instructions from the signatories, bad been prepared hy Mr A. Gray, K.C-, and forwarded to Howard Nattrass: — Wellington, May 15th, 1919. Mr Howard Nattrass, Wellington. Dear Sir, —With reference to the recent case iu the Magistrate’** Court, Wellington, in which you were charged by the police with being a rogue and vagabond by reason of being found by night on the premises ff' William Strangman. in Fallowlield avenue, about 10 o’clock on Friday, May 9th, tho undersigned desire in justice to you, to state that we are four of the six persons, some of whom were actually on, and the others . about the premises in question at the time. The other two persons were Joseph Fleming and B. W. Munns, both of whom are at present abseat from Wellington. Neither yourself nor Mr Gualter was with us, or on or about the premises on that occasion. The Cadillac closed car, mentioned in the evidence given by Fabey, was driven along Courtenay * place by the undersigned, William W. Carter, and not by you as alleged, and you were not in the car. We are quite prepared to give evidence iu support of the foregoing statements if you. should require us to do so. The undersigned

Forster Nattrass further desires to state that he is. the person who had the conversation with Fahey deposed to by that witness, and for whom Air Aubrey Gualter had been mistaken. , Yours faithfully (signed), William Carter, Garage Attendant, 18, Molesworth street. Harry Douglas Nattrass, Motor Engineer, 18, Molesworth street. Dudolf Daube, Motor Engineer, 18, Molesworth street. Forster Nattrass, Civil Engineer, 13, Vivian street. AN APPARENT INJUSTICE.

Mr Myers said the application was made under section 120 of the Justices of the Peace Act, which provided for a rehearing being granted by any justice before whom an information had been served. The object of the section was to give an opportunity of remedying an apparent injustice. He submitted that the material before the court was such that it would amount almost to a scandal if an opportunity was not given to enable what was apparently a serious injustice to be remedied. If the evidence which he was prepared to place before tbo court was true, and had been called in the previous case, the information must have been dismissed so far as Nattrass was concerned. The alleged offence was said to have been committed at 10 o’clock on Friday night, and Nattrass was served soon after 12 o’clock on Saturday. The ca»o was disposed of on Monday. If Nattrass was not there it was impossible for him to assume that theie would ho evidence purporting to identify him, and he was entitled to rely on the evidence of the alibi sot up. Counsel who conducted the case had no knowledge who the persons were who were on the premises. Supposing that he had known, no counsel could have properly called those six men' un leas they had indicated that they were prepared to give evidence, as any one of them could have' refused, if called, to answer. No counsel would have acted fairly had he called men who refused to answer questions on the ground that they might incriminate themselves. Counsel added that he would not have made the application for a rehearing had he not had the definite statement by these men on oath, who wore prepared to come before the court and give evidence and take the consequences of the act which they had committed, and for which somebody else had boon wrongly convicted or wrongly found guilty. Gualtcr was stated to have been present on that occasion. He was not charged, and counsel desired to point out to tho court that the observations made from tho bench at the conclusion ol the case indicated to tho public thal Gualtcr, in the court’s opinion, had tied, and that tho witness Fahey was believed. It was never suggested bj counsel for the defence that Fahey was n dishonest witness, but that he was mistaken, and it was possible for any witness to ho mistaken on a question of Identity. His 'Worship had said that Gualter was not known by Fahey to ho a member of the Nattrass and Harris Company, but tho confl would remember that Gualter, during his evidence, had stated that he had been to Strangman’s house about two months ago on behalf ol a person from Hawke’s Bay to discuss certain matters. Fahey must have known that Gualter was in the neighbourhood on that occasion. Possibly this was in Fahey’s mind, and induced him to think that Gualter was the person. His Worship had said that _ ho relied to some extent on tho agitated condition of the gill a* staled by the mother in her evidence, and he regarded it as some corroboration that it was Howard Nattrass’s voice she had heard outside the window. The fact, however, wan overlooked that the girl knew that someone was outside her window too desired to communicate with her, or

nejp her in some way, whether that person <tn« rtio.il ass or mia. In those circumstances it was reasonable to suppose that she would become agi tated whoever the person or persona might bo. bis men had come lorward and said: ‘‘Wo are liable to be pun <shed, but wo are prejiared to tak( our punishment rather than sec another mon wrongly accused, wrongly convicted, and publicly villified.” Gualter was not a defendant. He was a reputable and decent business man and citizen. He was either at the house or he was not. He had sworn that he was not on the premises, and Fahey had honestly, although mistakenly, said he wa«. Forster Na ttrass had come forward voluntarily, and said ho was not going to see a third man wrongly accused and yillified by the public, and was prepared lo take punishment if there was to bo any. Ho stated that he was the man who Fahey mistook for Gualter, and Gualter had informed the court that he was at the house of a Mr Sarginson at Hatatlai- Sarginson was quite prepared to substantiate what Gualter had said in evidence as to its being true, and Mrs Sarginson wap also prepared to come before the court and support that statement. Counsel submitted that the court could not fail to see that an injustice had unwittingly been done to Gualter. An injustice aatl been done to a man who had lived in tho city for years, one who had borne an honourable character, and everything possible should be done to remedy the injustice. Mr Myers said ho was not prepared to. say that Nattrass’s conduct might not justify hostile and severe criticism Such might or might not bo the case,, but. with that he was not concerned. Tho charge against Nattrass was that of being a rogue and vagabond, in that he was found on certain nremisea. If he was not there, then the court, in proceeding on the assumption based on the evidence, that he was, had prima facie done tho defendant a serious injustice. If an opportunity was not (riven to remedy the injustice, it would be contrary to the traditions of justice. RESTRICTED POLICE EVIDENCE. Inspector Marsack. who appeared on behalf of the .police, said that the defendant had ample time before the ease was brought ,to instruct his solicitor who the six men were who were at the house. There were matters in connection with the case that the police could not go into the merits of at the present juncture. THE MAGISTRATE’S OBSERVATIONS. Mr Frazer said that before the court could grant a rehearing it had to be satisfied that the new evidence was not available to the defendant at the time of tho original hearing. The court would have to be sure that the defendant had no possible opportunity of getting that evidence in time for the original case. The evidence must also be such as would have caused the court to have oome to.a different conclusion. The object of the law was to administer justice, but if applications of this kind were granted freely many such would be made, as there was always the possibility of preparing evidence after one side had heard what the other had to say. That observation was a general one, and had nothing to do with the facts of the present case. The general rule was that in justice to everyone there should be an end of litigation as soon as possible, and it should not be unduly protracted.. The rules referred to had been quoted by judges. The witness Fahey had sworn that Gualter was on the premises and that he had spoken, to him. He further stated that he knew Gualter and wixs not mistaken. It was oath against oath, but Gualter, when interviewed by the police, had refused to say whore he had been on Friday night. Ho said: “I won’t say whether 1 was there or not.” A man was not bound to give tho police information, but a wise man would have done so on the occasion in question, even though he was unaware of the object of the police, or even if he thought the police' were taking up a hostile attitude towards him. A man might get “rattled,” but when ho had cooled down it was expected that he would act ns a reasonable man would act. Gualter was uot a defendant to the action, and if his conduct had laid him open to some doubt by tho court, he was largely to blame. Tho court indicated that his evidence was not altogether satisfactory, although it did not find that he was actually on the premises. The evidence against Gualter was only that of the witness Fahey and what Gualter had said to tho police when questioned, elf he had been charged, that evidence, in the circumstances, would not have convicted him. There was, however, a suspicion in tho mind of the court. Had Gualter bold the police that he was at the house of Sarginson, his statement could have been verified, and tho alibi, if the statement was found to bo correct, would have been established. ■ His attitude towards the police was unfortunate, as it created an impression against him. APPARENTLY EMPLOYEES.

In respect to tho principal application, throe of the men mentioned in the affidavit were apparently employees of the Nattrass and Harris Company, and two of tho signatories were brothers of the defendant. It seemed impossible to think that those men should have planned and carried out tho raid on Strangman’s premises without the knowledge of Nattrass himself. It was stated in evidence, and not contradicted, that Nattrass had got Miss Strongman, with whom he was concerned, away for four weeks on one occasion, and removed her from a hospital on another. Nattrass hud also boon ordered but of tho house for trying to induce the girl to leave her parents’ homo, after ho had been allowed to see her on tho pretence that his visit was in connection with tho business books of his company, where the girl was formerly employed. On those facts it was impossible foir tho court to believe that ;ho four men had made the raid, after planning it, without Nattrass knowing anything 'about it. It might be suggested that if ho was not there .himself. ho originated the raid. It was admittted in the letter that a car belonging to the firm was there, two out of the four men were brothers of Nattrass, and three of them were employees. It seemed hard' to say that tho first requisite of tho application had been complied with —-that the evidence was not reasonably available to the defendant at tho time of the original hearing of the oase. It had been said that the men whoso names appeared in the affidavit should not have been asked to implicate themselves, but they wore willing to implicate themselves now on finding that tho defendant was not convicted' but mas ordered to keep the peace. It was‘easy to he bravo after tho event when there was no risk. Ho was not prepared to say that counsel acted In tho best way in not tendering tbo evidence of tho four men at the original hearing on tho ground that they might have incriminated themselves, and possibly bo did not know of tbo existence of these witnesses. Tho court was inclined to think ho was in that position. The know-

ledge was evidently in the possession of the defendant, who, for some reason, did not acquaint his counsel. As the first requisite of the application had not been complied with, it was necessary to deal with the second. THE APPLICATION REFUSED.

The men all had a common interest with Nattrass and knew that an action for £3OOO for seduction was pending. They were all more or less involved in the occurrence that took place on Friday night. ' , . Mr Myers: That does not aply to the other two. . ■ The magistrate: They have not signed. . Mr Myers: They have stated their willingness to come here. The magistrate: I do not know if they are employees or not. Mr Myers; No, they are hot. The magistrate said that the men were interested and, being part of the conspiracy, were conspirators. Ho was unable to say that if be toad heal'd their evidence ho would have been convinced than Nattraso was not in the matter. The absence of the first requisite was fatal to the application, and even if the court, on a rehearing, came to the conclusion that Nattrass was not on the promises, on Friday night, but was behind the affair, the court would probably consider it necessary to bind him over to keep the peace. Nattrass had not been convicted of anything, and even it ho was not on the premises no injustice had boon done him by his being ordered to keep the peace. If lie had evidence that might hare exonerated him, ho should have brought it forward at the proper time. The application was refused.