COURT ADJOURNS FOR ACCUSED TO ARRANGE COUNSEL

Press, Volume XCII, Issue 27794, 20 October 1955, Page 15

COURT ADJOURNS FOR ACCUSED TO ARRANGE COUNSEL

Counsel who appeared for Clifford Fox, aged 33, a carpenter, at an earlier sitting of the Magistrate’s Court, was granted leave to withdraw from the case by Mr Rex C. Abernethy, S.M., yesterday because Fox had not paid a retaining fee. The hearing of two charges against Fox—one of breaking and entering and theft, and the other of escaping from lawful custody—were set down for hearing at 10 a.m. yesterdays At noon the Magistrate adjourned the Court to 2.15 p.m. to enable Fox to seek other counsel or alternatively to decide whether he would conduct his own defence during the lower court hearing or seek a further remand.

When the Court resumed at 2.15 p.m. Fox and the Magistrate had furtherdiscussions on the matter of counsel, and after two further adjournments he was charged, and the first witness was called at 2.50 p.m., at which time Fox was still not represented by counsel. During the hearing of evidence from this witness, Mr L. G. Holder appeared in court and said he had been requested to act for Fox. When Fox first appeared in the dock, his counsel, Mr B. S. McLaughlin, asked leave to withdraw from the case. Fox had not complied with some conditions, and his firm had been forced to ask leave to withdraw, said counsel. Fox then asked for an adjournment so that he could arrange for counsel. “I do not wish to be tried on a charge of this sort without counsel,” he said. “It would be unjust to expect me to.” The Magistrate: You can leave the matter of justice to this Court. Detective-Sergeant A. B. Tate, police prosecutor, said the evidence was very lengthy, and if possible he wanted to go ahead so that the matter could be dealt with at the next session of the Supreme Court which commenced on Tuesday.

In reply to a question from the Magistrate, Mr McLaughlin said that a retaining fee for counsel’s services was to have been paid on Monday. On Tuesday no payment had been made, and that morning he had been advised that the person who was going to pay the fee had decided not to do so. First Adjournment The Magistrate adjourned the court for a few ipinutes, and on the resumption Fox said he could obtain the fee if given a further 30 minutes’ adjournment. “Fox, if you pay the money counsel cannot refuse to act for you. If you do not pay, he can,” said the Magistrate when adjourning the court for 30 minutes. While the court was adjourned Mr McLaughlin conferred with Fox, and later Mr R. A. Young, senior partner in the firm of Messrs Young and Hunter, appeared in court, and with Mr McLaughlin and Detective-Sergeant Tate saw the Magistrate in chambers. When the court resumed —well over an hour since the adjournment—Mr Young said he appeared as amicus curiae. He had met Fox for the first time and Fox had told him that he had been in custody in Paparua prison since October 8, and that as he had not been at liberty he had not been able to take steps to assure a proper defence, either in this court or for the trial in the Supreme Court. “I was told that, on what seemed good authority, a man had instructed Fox that he would assume responsibility for costs in this and the Supreme Court,” said Mr Young. “That man decided only this morning that he would not assume that responsibility now. In the circumstances, Fox has not had the opportunity of engaging counsel or taking such steps as are available to him, to have counsel.

“I have discussed the matter with him and he now appreciates that unless he is committed to the Supreme Court this week he cannot be brought to trial this session. I told him there would be several weeks when juries would be available and that he could be taken later in the session, but only if he was committed for trial before the end of this week. If he was not, he would have to wait until the Feb-

ruary session next year,” said Mr Young. “He has asked that the case stand down until 2.15 p.m. If he can arrange counsel between now and that time he would then be prepared!© go ahead today. In the ordinary course of events the police ask for remands and are granted them, and it must be conceded that little time has elapsed since his arrest,” said Mr Young. Detective-Sergeant Tate said the police wished to proceed with the case in fairness to Fox because if he was not committed for trial this session he would have to wait until February. The Magistrate said Mr Young’s firm had a perfect right in taking the attitude it did. “If arrangements fall down it is still competent for you to ask for counsel and be given reasonable time to engage counsel and the Court must see you have every fair chance of getting counsel,” said the Magistrate. He told Fox that unless he was dealt with that day or today he would have to wait for the February session of the Supreme Court. “You have been refused bail twice and I would deem it my duty to refuse, it again,” he said.

Fox then asked that the case should not be given much publicity. The Magistrate replied he would make no stipulation concerning publicity. Further Adjournments

Before Fox was actually charged, the Magistrate granted two further adjournments. The first was to allow the Magistrate to check a statement made by Fox on the resumption that Mr Young was going to act for him after all and that money was available for Mr Young as a retaining fee. When he returned to the Court the Magistrate said he had been in touch with Mr Young, who had reiterated that he had’ withdrawn from the case. “I am now going to remand you for a further week unless you want to go on with it today,” said the Magistrate. Fox said he wanted to go on with the case.

When Fox appeared uncertain of what he would do the Magistrate granted him a further adjournment to chew the matter over.” At 2.45 p.m., when the Court, resumed, Fox was charged by the Clerk t “ e . Court (Mr W. Brough) and given the choice of being tried by the Magistrate or in the Supreme Court.

“Can I be dealt with in the Court on these matters, sir?” Fox asked. ‘I did not know that. I will ask for an adjournment now, certainly.” The Magistrate told Fox he would decline to deal with him—as he had a right to do—on the two charges. “In view of possible misunderstandings that may have occurred today I do not propose to take that responsibility,” he said.

Fox: Can I have it dealt with by someone else, then, sir?

The Magistrate: ’ No.' The Court elects to have you tried by a jury. While evidence was being given by the first witness, Mr Holder entered the Court and at the conclusion of the evidence announced that he had been retained to act for Fox, but that he would need to get Fox’s permission. Ihe two held a short discussion, the result of which was that Mr Holder proceeded to watch matters on Fox’s behalf. The case proceeded.