AUSTIN DIVORCE CASE.

Auckland Star, Volume LXII, Issue 243, 15 October 1931, Page 8

AUSTIN DIVORCE CASE.

APPEAL AGAINST JUDGMENT. granting of a new trial. ADMISSIBILITY OF EVIDENCE. (By Telegraph. —Press Association.) WELLINGTON, this day. An appeal from the judgment of Mr. Justice Adams in granting a new trial in the divorce case Harold Neaves Austin, of New Plymouth, against Violet Eliza Austin and William James Newell, also of New Plymouth, came before the Court of Appeal yesterday and the hearing was continued to-day, the appeal being' taken in forma pauperis. ' The facte leading to the appeal were that in September of last year- Austin filed a petition for divorce from his wile on the grounds of adultery, naming Newell as co-respondent. At the trial evidence as to adultery was given by Ada Riley, sister of Mrs.. Austin, and William Edward Walker. Both respondent and co-respondent strenuously, denied misconduct, and evidence contrary to that for the petitioner was triven by other persons living in thelame house as Newell and Mrs. Austin. The jury, however, found for the petij tioner and a decree nisi was made. I Later, on an application for a new trial, Mr. Justice Adams held the verdict to be against the weight of evidence and ' ordered a new trial.

The appeal was onginauy sec aowu. for hearing at the last sitting of the Court of Appeal, but prior to the date for the hearing affidavits made by Miss Riley and Walker-were filed, in whicli they stated that the evidence given by them in the Court below was entirely false. In view of this fact, the hearing was adjourned until to-day. In the meantime both Riley and Walker had been prosecuted for perjury, Walker being sentenced at New Plymouth to twelve months' hard labour and Riley being ordered to come up for sentence' if called upon at any time during the next two years. On the Bench are Mr. Justice Reed,; Mr. Justice Smith and Mr. Just-ice Ostler.

When the ease opened to-day Mr. Croker asked leave to read to the Court affidavits made by Riley and Walker to the effect that their evidence in the Court below was false.

Mr. Cooke, for the appellant, opposed leave being granted. He submitted that even if the affidavits were read and clearly established perjury in the Court below, which he submitted they did not, they would be of no use to the Court, as the proper course for the respondents to adopt was not to adduce evidence of perjury on the appeal from the order granting a new trial, but to institute a new independent action, attacking the decree of divorce on the ground of perjury. The onus lay on respondents to show that there actually was perjury, if they alleged it. The question arose, where was the perjury? Was it in the evidence given at the trial or in the affidavits made subsequently thereto? After Mr. Croker had addressed the Court again the Court said it was of opinion that affidavits should be read and admitted as evidence. The Court then adjourned until tomorrow. s