COURT OR THEATRE?

Sun (Auckland), Volume IV, Issue 955, 24 April 1930, Page 12

COURT OR THEATRE?

BIG TRIALS AT OLD BAILEY PAPER ON “NISI PRIUS” Interesting experiences from the life of Mr. Serjeant Ballantine, particularly dealing with the conduct of big trials at Old Bailey, were given by Mr. Claude H. Weston, of New Plymouth, in a paper on Nisi Prius,” given at this morning’s session of the New Zealand Law Conference. “Constitutional lawyers tell us that when his Majesty’s Judges in New Zealand go on circuit or ‘do the >malls/ as the late Mr. Justice Alpers described it, they are following in the steps of William the Conqueror and his two sons, who themselves presided in their courts at Westminster, Gloucester and Winchester,” said Mr. Weston. The Conqueror’s system was extended by late kings giving commissions to their Judges to hold courts in the various counties at regular periods during the year. Actions in the courts of Kings Bench, Common Pleas and Exchequer originated at Westminster, but naturally the parties and their witnesses preferred the act tual trials to take place before Judges in Ej’re or “in itinere,” and so the writs commanded that jurors should come to Westminster “nisi prius”—• unless, before the day named, the Justices assigned to take Assizes should come into the county in which the cause of action arose. The term Nisi Prius now is loosely applied to all trials of matters of fact and is contrasted with “in banco.” Mr, Weston said the subject of the j paper was suggested by “Mr. Serjeant j Ballautine’s Experiences.” Among ! the foremost English advocates who j practised in the middle ot' lasr century he was one of the last of the Serjeants and indeed as honorary tren- ' surer of the Inn, wound up its affairs. The period in which he lived presented some astonishing features. It i would have been rather startling to us to see how in his time society ! treated the court as a theatre. At the trial of Courvoisier for the murder of Lord William Russell in June, 1840, the occasion might, from the appearance the Old Bailey presented have been thought one of the most festive character. The court was crowded with fashionably dressed women, furnished with lorgnettes, fans and bouquets; the sheriffs and under-sheriffs excited and perspiring, were rushing here and there, offering rhem what they deemed to be delicate attentions. A royal duke honoured rhe exhibition with his presence, and, upon the occasion of a witness giving a particular answer to a question from counsel, showed his approval by an ejaculation of “Hear, hear.” Sir Nicholas Tindall, the presiding judge, was so hemmed in by the extensive draperies of the surrounding ladies that he had scarcely room to move, and looked disgusted at the indecency of the spectacle. A MORNING PERFORMANCE Speaking of the Tichborne case, Ballantine said the proceedings before Lord Chief Justice Borrill might have been more properly described as “morning performances” than sober legal inquiries. Occasionally the Chief Justice accepted advice from a bevy of women who clustered around him, and who took a great interest in the proceedings. This certainly was not upon law, but on French and geography, in which it was early shown that he had not been thoroughly grounded. A ludicrous incident of a similar kind occurred in an election petition tried before the dour Mr. Justice Blackburn. It was described as follows: “Mr. Justice Blackburn had taken his seat, when a woman, having arrived late, had to pass him to get to her party. Now, his Lordship’s legs being no unimportant portion of his body, her flounces became seriously entangled in her attempted passage, and for the moment the judge was lost sight of bs’ the audience in front, while the woman presented the appearance of sitting upon his knee. The judge’s voice was heard in no musical tones, and when relieved from the embarrassment, he declared in emphatic language that he never had been in such a position before, ‘and this,’ says Ballantine, ‘I am disposed to believe’." Although there have been charges, said Mr. Weston, that keen weapon of the advocate, cross-examination, subsists of equal danger unfortunately to truthful and untruthful witnesses. Wc still stand the witness in a box in strange surroundings, and give him over to the mercy of keen intellects whe have spent most of their lives putting questions to unfortunate people in similar circumstances, and we expect him to give a true and correct. account of what he has seen and heard. Serjeant Ballantine shared the experience of many nisi prius advocates who on occasions tie up their briefs with an uneasy feeling that truthful witnesses have not been able to convey to the court what is 'really in their mind. Embarrassment exhibited under a searching cross-examination is not to be relied upon as a proof of falsehood: the novelty of the situation, or constitutional nervousness, may frequently occasion it, said Mr. Weston. Ballantyne, said Mr. Weston, probably could not visualise women on English juries, and in New Zealand we have witnessed the partial abolition of the trial by jury in civil actions; a reform if it may so he described, followed by considerable protest from the profession, but. whether from the absence of a centralised Bar or because it is impossible to say definitely if it is better or worse, now' acquiesced in. “To ring down the curtain. I choose Ballantine’s own words, one who was a celebrity of the Old Bailey,” said Mr. Weston. “Rarely met with upon festive occasions, he was, nevertheless, accustomed to present, himself after dinner on the last day of the sessions. He was a decentlydressed. quiet-looking man. Upon his appearance, he was presented with a glass of wine and this he drank to the health of his patrons and expressed wiih becoming modesty his gratitude for past favours and his hopes for favours to come. ... He was Mr. Calcraft, the hangman.” DANGEROUS EXAMINATIONS The Old Bailey style of crossexamination, fortunately, had now disappeared, said Mr. Weston, and in its place has come what is just as deadly a method, clothed with courtesy and patience. The speaker mentioned that Sir William Follett asked the fewest questions of any counsel that Ballantine knew, and as Ballantine said, he had heard many cross-examinations from ethers, listened to with rapture by

I their admiring clients, each question of which had been destruction to uheir i cases. As an example of restraint, Ballan j tine referred to his own defence of a j young woman charged with poisoning her husband. Mr. Baron Parke, after- ! ward Lord Wensleydale, presided. A | minute quantity of arsenic was dis- ! covered in the body which the defence j accounted for by the suggestion that I poison had been used carelessly for the destruction of rats. The famous Dr. Taylor, professor of chemistry and an experienced witness, had proved the presence of arsenic and to the great disappointment of the solicitor for the accused, who desired a severe cross-examination. Ballantine, who had been briefed for the defence, did not ask him a single question. Mr. Baron Parke, in a summing up not favourable to the prisoner, dwelt pointedly upon the small quantity of arsenic found in the body, and the jury acquitted the prisoner. Dr. Taylor was sitting on the bench near the Judge. After his summing up and before the verdict, the Judge remarked that he was surprised at the small amount of arsenic found, and Dr. Taylor replied that had he been asked he would have pointed out that as a matter of fact, a very large amount had been taken. The professor had learned never to volunteer evidence, and the counsel for the prosecution had omitted to put the necessary question. Mr. Baron Parke having gained the information by accidental means did not, feel warranted in recalling the jury and further directing them.