CHARGES DISMISSED.

Auckland Star, Volume LXIII, Issue 237, 6 October 1932, Page 11

CHARGES DISMISSED.

END OF "TIVOLI CASE." LAWYERS AT HIGH TENSION. "THIS MAN WMDEYEE. , ' ; (From Our Own Correspondent.) SYDNEY, September 30. The prosecution of H. D. Mclntosli, Co.vell and Curtis, K.C., for misuse 'of the Tivoli Company's funds pursued its sensational course throughout the week, and came to an appropriately dramatic conclusion. Mr. Maughan, for the proeecution, had used every possible legal expedient to drag in evidence which might tend to throw suspicion in some way or degree upon Mclntosh and his fellow directors. The phalanx of K.C.'s aligned against him (Shand, head of the New South Wales Bar, Watt and Larnb with their seconds), contested every inch of ground, interrupted Maughan at every opportunity, and finally concentrated on the point that the prosecution was wholly malicious and had been organised by persoual enemies of .the defendants.

The learned lawyers engaged were strung to high tension throughout. Mr. Watt said, among other things: "Never in the history of the administration of justice in this Court has there been so much secrecy and suppression in an endeavour to support a criminal charge." And Mr. Maughan said: "I have never heard of such grossly improper conduct taking place in any Court in the British Empire as has occurred here during- the last ten minutes. The conduct of counsel for the defence is a scandalous misuse of • the powers of the Court." Thus fiercely was the contest waged; but it became clear when at last counsel for the defence fastened upon "the party behind the prosecution," that they were getting the upper hand. "We want to show," eaid Mr. Shand, "that this man Windeyer gave an undertaking to pay the costs of this prosecution. Secret malignity has animated these proceedings throughout, and there is no doubt that the prosecution originated out of absolute malice." This man Windeyer is, of course, W. A. Windeyer, the wellknown solicitor, who instructed Maughan, and during the early flays of the hearing sat "sniggering" behind him, much to the annoyance of Messrs. Watt and Shand. But though the Court refused to allow -Lamb, K.C., to produce the documentary proof that Windeyer had given an indemnity for costs to the nominal prosecutor, the three K.C.'s handled him so severely that on the final day he preferred to absent himself from the proceedings. Without Fee. When Mr. Shand finished his closing speech he made some rather more sympathetic reference to Mr. Maughan, whom he described as "dominated by a will etronger than his own." One of the most striking points made by Mr. Shand was the disclosure that he himself. Mr. Lamb, K.C. and Mr.' D. Hunter, were appearing voluntarily for Mr. Curtis, without fee or emolument, and that their presence in the Court was a tribute to their long acquaintance with Mr. Curtis and their confidence in him. By the time Mr. Shand had finished analysing the evidence, it had become clear that, as he and Mr. Watt had contended all along, there was nothing in it to criminate the defendants. As Mr. Moverley, another of the defending counsel had said, "We have been here for seven daye and nobody has suggested yet where the fraud lies."

Summing iip, Mr. Shand maintained that the money which according to Maughan's charge had been used in some illicit way, was in reality employed for a perfectly legitimate purpose, to buy out certain shareholders eo as to prevent litigation against the company, and he added that there was nothing to show that the defendants had -benefited in any personal way through these transactions. Even Mr. Maughan seemed to be affected by the force of Mr. Shand's arguments, for in his final reply he seemed inclined at one point to disclaim the suggestion of deliberate fraud. However, he closed by appealing to the Court to commit the defendants for fraudulent misuse of the funds entrusted to them; maintaining that if thejr action did not constitute fraud, "there is something wrong with the criminal laws of this country."

" Case Not Made Out." , But Mr. Gibson, the presiding magistrate who had sat for seven long days through thesa recurrent cyclones of charge and counter-charge and abuse and vituperation, decided that a case of fraud, "had not been made out," and eo the defendants were discharged, to receive the hearty congratulations of their numerous friends. I don't know that the case will do much to help Mr. Mclntosh through his bankruptcy, but the only person likely to suffer much in reputation through these extraordinary proceedings is "this man Windeyer," who is not likely to forget the caetigation that he has received from two of the most distinguished K.C.'s of the Australian Bar.