The Daily News. SATURDAY, MAY 27, 1911. THE "SECRET CASE."

Taranaki Daily News, Volume LIII, Issue 312, 27 May 1911, Page 4

The Daily News. SATURDAY, MAY 27, 1911. THE "SECRET CASE."

I The case of Rose v. Thomas Kennedy Macdonald, real estate agent, a valuer for the Government, till the other day a member of the Legislative Council of New Zealand, is one of the most remark- ! able in the country's annals. Whatever were the reasons for the preliminary; hearing in secret, the country does not know, merely inferring that as Macdonald was in some small degree a notability and a member of Parliament he should have greater consideration than any other alleged delinquent. The Press was almost unanimous that the secret hearing was, a perversion of justice. There is at least no possible doubt j that if Macdonald had been a defaulting I clerk, there would have been no secrecy j about the hearing, even though the clerk \ had been suffering from angina pectoris, Bright's disease and pneumonia. New Zealand now knows that Macdonald com--1 mitted one of the worst crimes in the calendar—the theft of trust moneys. Macdonald's crime was not the crime of the southern letter-carrier who stolo small postal notes and went to gaol for two years—as he deserved. His crime was systematic misappropriation over a long period. He has shown no evidence of contrition, and at present he has what is practically a license to carry on whatever kind of "business" he desires. Medical men pronounced him to be suffering from disease, saying that any mental distress however caused might produce dangerous symptoms. The allegation was, of course, that the imprisonment of Macdonald for as long as lie deserved would cause mental distress. The diseases Macdonald is said to be suffering from are diseases that do not grow in a night. They were very probably well defined when Macdonald began to tamper with the trust fund. One might imagine that systematic robbery would cause mental distress. If it did, Macdonald did not develop those dangerous symptoms. Indeed, it seems clear that he had a fairly expansive and joyous time. There is no evidence in his career that he has been partial to sackcloth and ashes. lie apparently did not develop dangerous symptoms under the mental distress of being called upon to answer a charge of fraud. Although apparently the medical men previous to the hearing had not examined Macdonald to ascertain whether lie could stand the mental distress of appearing before the Chief Justice, it seems probable that the secrecy may have been prescribed on account of a knowledge that he was not in sound bodily health. As most misdeamants are not in sound bodily health, it is obvious that they should not be subject to the rude gaze of the half hundred idlers who lean across the Supreme Court barriers, and if precedent is followed, the physically sick burglar may in future hope to have, his name kept out of the press, so that mental distress may not affect his already under-mined health. The judges said that in face of the medical evidence they could not order Macdonald to be imprisoned. So Macdonald is free. But. if Macdonald has become free because he is a sick man and not because he is a rich man (and still has some influence), the State must arrange that every person tried for an >offence which may be punished by Im-

prisonment shall be medically examined prior to trial. If the prisoner is fouml t.o be ill, it is absolutely useless trying him. He cannot be imprisoned if tlie judges regard him as they have regarded Macdonald. The judges knew when • Macdonald was charged that they could prescribe imprisonment should he be proved guilty. They presumably knowthat if Macdonald could be proved to be ill he could not be gaoled. They should certainly have had him examined before lie was brought before the Court. Having found that he was suffering from a complication of diseases their duty would j be to dismiss the case. It is absolutely useless trying a criminal if he cannot be punished when he is found guilty. Presumably the criminal in ill-health is at liberty to pursue illegal practices without fear of gaol. Xo other conclusion can be read into the judges' decision. One may be excused for believing that a man of the temperament of Macdonald would suffer no greater mental distress in the Terrace Gaol than he would do at the secret hearing or during Ills career of theft. It is also doubtful whether the healthful restrictions in regard to sustenance would be so likely to produce apoplexy as "the mental distress" of being now proceeded against under the Bankruptcy Act and by the other means open to the plaintiffs. Should t]ie judges 'be unable to protect Macdonald from distraint, the mental worry of paying out will probably be as great as the mental worry of passing a quiet year or two in the place where he deserves to go. If the judges are more concerned about the health of Macdonald than about justice, they should suggest some plan for -withholding any proceedings that may be now taken against him for recovery of stolen moneys. If the new proceedings—should they be taken —end by Macdonald being sentenced to imprisoßment, and again released because he is still ilI7 why worry to advise plaintiffs to take further action? Macdonald seems as safe as the proverbial bank, thanks to the protective armor being thrown Tound him. We hope that every inhabitant of New Zealand gaols will at once be medically examined. If any of the misdeamants have diseases on which mental distress will have a dangerous effect, they should he freed at once, ft is the "justice" that has been meted out to Macdonald.