OBNOXIOUS PRACTICE.

Ashburton Guardian, Volume XLIII, Issue 9836, 2 April 1923, Page 8

OBNOXIOUS PRACTICE.

MAGISTRATE AS WITNESS.

TO PUBLIC POLICY. The Supreme Court at Nelson this ■week was occupied during a portion of (the day in hearing an appeal case, V. White y. J. T. Morrow, .against the decision of Mr T. E. .Maunsell, S.M., in an affiliation case .heard at Motueka. The case was heard before his Hon•our Mr Justice Salmond.

Mr Nicholson appeared for the appellant and Mr Smith for respondent. At the outset of the case, Mr Nicholson intimated that he proposed to .call Mr T.. E. Maunsell, S.M. His Honour asked why.

Counsel replied he wanted the Magistrate to produce his notes of evidence.

His Honour did not think this could -be done.

Counsel explained that he (counsel) ■wanted the notes as corroborative evidence.

His Honour said it was an obnoxious practice to call a magistrate to •give evidence against his own decision. Counsel asked if he could call the Clerk of the Court to produce the notes. His Honour said this could not be done.

Subsequently, His Honour said: — “Well, you can call the Magistrate, but perhaps he will object.” The Magistrate was then called and after being sworn, said he had been asked to raise the question of privilege, as it would tend to disorganise the work of the Magistrate’s Court. He had no objection to give evidence providing the fixtures of the Court 'were N not interfered with.

His Honour said he was quite satis'fiedas to the course to follow. It was ■clearly contrary to public policy that a Magistrate should be subpoenaed as a witness to give evidence in this or any other Court as to what had been before him in a judicial capacity. The -.rule that a Judge of the Supreme 'Court could not be summoned as a -witnes was clearly recognised, and the Tule set out in Halsbury, yol. 13, was ■apparently limited to Judges of the Supreme Court. His Honour referred to Taylor on the law of evidence, and said lie would rule that the Magistrate be not called.

The Magistrate: I am quite preparer to give evidence to assist the Court if it does not interfere with the sittings of the Lower Court. His Honour: I am going to lay it ■down that it cannot be done.

Mr Nicholson then called respondent, who gave evidence. After counsel’s addresses, his Hon'our dismissed the appeal with costs.