THROWN IN GAOL WITHOUT TRIAL

NZ Truth, Issue 1205, 3 January 1929, Page 3

THROWN IN GAOL WITHOUT TRIAL

Aged Father's Unsuccessful Battle on Behalf of Betrayed Daughter Leads To Commitment

SCANDALOUS MISCARRIAGE OF JUSTICE REMEDIED

MAGISTRATE It. M. WATSON issued the warrant of commitment, ahd Lawyer Norton, of Te Kuiti, applied on behalf of his client, George Rayne Bell, for the commitment. Judge Blair made short work of the objections advanced by Lawyer Beckerleg, who was instructed by Morton, and flatly declined to grant even five minutes' adjournment of the case. On the question of costs his honor indicated that the case was one for substantial. costs and he allowed fifteen guineas* and disbursements against Bell. The events leading up to the arrest of the old man can be traced from a day m June of last year when Kearns' daughter, then fourteen years old, gave birth to a child. The old man's wife was a Maori, who has since, died. For a number of years Kearns and

To Assist Wife

his family lived at Aria. Living about a quarter of a mile away from .the Kearns' household was George Rayne Bell, a fanner, and his wife. Following__tho birth of the girl's 'baby proceedings were set m train on behalf of the girl against Bed, who was alleged to have been the father of the child. When the proceedings came on before the magistrate ar. Te Kuiti it was alleged that the girl had been sent over to Bell's farm to assist his wife and that she lived with the Bells for severul months. The girl named Bell as the man responsible for her condition, but the case was dismissed. There was no

(From "N.Z. Truth's" Special Auckland Representative).

Arrested under the eyes of his motherless . children m the streets of Te Kuiti and thrown into Mount Eden gaol without trial or a chance to defend, himself, Henry Francis Kearns,' an , old man of 65 who lives at Aria, a backblocks settlement twenty-seven miles distant from Te Kuiti, was released by Judge Blair a few days ago under a writ of habeas corpus. Kearns is a cruelly persecuted victim of a grave miscar- , riage of justice.

corroborative evidence available and the magistrate did not accept her story. Not satisfied with the .result of the case, 'Kearns entered an appeal against the magistrates decision m the Supreme Court. The appeal also was dismissed and costs amounting to £27 4s, Sd. were entered against the old man. In the meantime he had paid all the medical expenses connected with the birth of liis daughter's child. Following the unsuccessful appeal Kearns' wife died, and he was involved m further heavy expense over the funeral. j

A poor man, with a young family to support, Kearns was. unable to find the money for these expenses, and on November 29 last, while m Te Kuiti with his family, he was arrested, under the warrant of commitment, by Constable Kennedy, and removed to Mt. Eden gaol, to undergo sentence of six weeks' hard labor.

Reams complains of the way m which he was removed. His children, 27 miles from their home, were left to find their way back as best they could. , The warrant of commitment was applied for by Lawyer Morton, acting for Bell, ancl it was signed by Magisvrute Watson at Feilding-. j On his return to Te Kuiti after a 'short absence, Lawyer "Bill" Noble' rook up Koarns' case, convinced that the arrest and imprisonment were absolutely illegal. The result was his appearance before Judge. Blair m the Auckland Supreme Court last week with an application for a N writ of habeas corpus. Kearns was present m court m custody of a warder during the hearing of the case. Lawyer Noble quoted sections of the Justice of the Peace Act, 1908, and the Destitute Persons' Act, m support of his contention that Kearns' arrest and imprisonment were illegal. | The committal, he said, had been granted under the provisions of section j 336 of the J.B. Act which reads:

Point Raised

"On the amount and. non-payment of such costs being certified by the registrar of the court (the Supreme Court m this case) making such an order, the justice may enforce payment thereof by warrant of distress •or commitment m like manner as if such costs had been costs awarded by such justice on the original adjudication of the case." The point raised by Lawyer Noble was that as to the "original adjudication of the case" the question of costs was dealt with under section 78 of the Destitute Persons' Act which reads: "In the case of any complaint or application under this Act the magiss trate shall have the same powers of ordering costs to be paid as are conferred upon him by the J.P. Act, and any order made as to costs shall be enforceable m the same manner as moneys ordered to be paid by a maintenance order under this Act and all the provisions of this Act as to recovery of such moneys shall apply and extend to the recovery of such costs." . Counsel's - main' point, however, was the wording of section 42 of the same Act. This, he said, he relied on more than anything else. This section provides that whenever any payment directed , to be paid by any maintenance order is m arrear arid unpaid for one week any magisi

trate may, if he. thinks fit, issue a warrant of distress for the purpose of levying the same or so much as shall then remain unpaid. "All- proceedings may be had under the J. P. Act for the execution of a warrant, and m pursuance thereof, as if it were issued m respect of a penalty charged upon conviction, but save as prescribed by this Act no warrant of commitment shall be issued m lieu of or m pursuance of any warrant of distress." That is where Magistrate Watson made a mistake. The whole transaction, so .far as Kearns was concerned — and, m fact, so far as the law is concerned — was no more than a civil debt. Distress was resorted to, but apparently there was little or nothing on which to distrain, and the warrant of commitment was then applied for and issued. „ Lawyer Beclcerleg relied for his argument on section 336 of the J.P. Act. He gathered, he said, from what he had heard m court that the warrant was issued on the costs of the appeal only. The section dealing with this question provided for commitment. "I submit," he said, ''that the section allows for either distress or warrant on the original adjudication." I : — — I

Judge's Comments

Constable Kennedy had proceeded to | act on the distress order and reported that there was not sufficient on which to distrain. "It follows, I submit, that there was the alternative of commitment." Judge Blair replied to this point by stating that if the case rested on an ordinary conviction under the J.P. Act nobody would dispute the validity of the warrant. The position, however, was that "it was based on the question of costs arising out of an appeal on a maintenance order taken under the Destitute Persons' Act, and Lawyer Noble's contention was that section 42 forbade the issuing of a warrant of commitment. "This man was never brought up and asked what he had to say.atfout ; it," remarked the judge. "He was simply placed, under arrest without any charge or conviction." At this stage Lawyer " .Beckerleg abandoned his argument. The judge, before giving his decision, made some interesting observations. "The question to be considered," said his honor, "is whether costs awarded m the Supreme Court on an appeal from an order made m the Magistrate's Court can be enforced by

commitment following on distress without making a charge against a man under section 61 of the Destitute Persons' Act. "Now, this procedure affects the sacred rights of the liberty of the subject, and section 336 of the J.P. Act says: ' . . . May enforce payment thereof by warrant of distress or commitment m like manner as if such costs had been costs awarded on the original adjudication.' '.■ , "We are then relegated to the J.P. Act- to see what a Justice can do if application were made to him to enforce an . order for costs. b "It seems perfectly clear that, although they can be enforced by distress, if they want to be further enforced it must be done under section Gl of the Destitute Persons ' Act. "That means, that a man must be charged and tried, and then, if. he has no reasonable case, he can be commit-

ted. As this man has never had that chance of giving his answer I will make the order applied for." ; Lawyer Noble raised the question of costs. .'.,.' "It seems tp me a case for.substantial costs," commented the judge who allowed fifteen guineas and disburse-, ments. ■;.■«_•• Within half-ari-hour of the pronouncement of his honor's decision; Kearns was once more at liberty, after serving three weeks of sentence that was illegal and a scandalous abuse of justice, b Whatever the rights and the wrongs of the original cause of all the trouble: may be it is shocking that a man who had not committed any criminal act could, be thrown into gaol without trial and without a chance to speak m his own defence, .'■:' 7,.

Blot On Justice

Although the law m both the lower and the higher courts has, affirmed the innocence of George Rayne Bell as the alleged father of the child of Kearns' daughter, the old man, although he failed to establish the paternity of his girl's baby, acted as he thought the circumstances merited. And because he did his duty as he .saw it m proceeding against Bell all That the law could do for him was to throw him into gaol among criminals without charge or trial. Kearns' case constitutes a disgraceful blot on justice and he should be adequately recompensed for the illegal humiliation that was heaped upon him.