CONVICTION UPHELD.

Ashburton Guardian, Volume 62, Issue 306, 8 October 1942, Page 5

CONVICTION UPHELD.

COURT OF APPEAL DECIDES. ADMISSABILITY OF EVIDENCE. (P.A.) WELLINGTON, Oct. 6. , The Court of Appeal gave judgment to-day in a case stated by Mr Justice Kennedy for its opinion pursuant to section 442 of the Crimes Act, 1908, o,nd arising from the prosecution of Henry Arthur Hirt, who was convicted at the July sittings of the Supreme Court at Dunedin, on lai charge of unlawfully using an instrument with intent to procure the miscarriage or Gladys Agnes Short.

Hirt was arrested at his rooms in Dunedin in May last, and a room adjoining the hospital ward in which Short was in bed was declared a Magistrate’s Court, and the deposition was taken of Short, who died on May 18. At the trial, an objection was made that Hirt’s solicitor, George Tyrrell Day fee, did not have full opportunity to cross-examine the witness. Her deposition was admitted, not as a dying declaration, but under sections 172 and 173 of the Justices of the Peace Act 1927.

The questions for the opinion of the Court were whether her deposition was properly admitted in evidence, and, if not, what course should have been taken. The Court held unanimously that whether or not full opportunity to cross-examine the witness had been afforded to the accused, his counsel, or his solicitor was a question of fact dependent on the circumstances of each case, and not a question of law. In this particular case, the deposition of the witness Short was; receivable in evidence and the conviction was therefore affirmed.