CLAIM FOR £1050

Dominion, Volume 27, Issue 68, 13 December 1933, Page 11

CLAIM FOR £1050

Detention in Borstal

MISS MATHESON’S CASE Evidence Before Committee PETITIONER’S CLAIMS The petition of Annie Lillian Matheson, of Auckland, claiming £lO5O for alleged wrongful ment, came before a select committee of the House'of Keprsentatives yesterday.' She had been detained in the Borstal Institution, Wellington, and it was held by Mr. Justice Smith that the Magistrate had no jurisdiction in sentencing her to such detention. In addition to claiming compensation, she asked that her name be expunged - - from thepcriminal records. The* Leader of the Opposition, Mr. M. J. Savage, was in charge of the petition, and. Mr. G. Skelton, Auckland, appeared on behalf of Miss Matheson. Sir. F. Lye is chairman of the committee, and there were also present Messrs. R. W. Hawke, J. Linklater, P. McSkimming, J, N. Massey, R. Semple. The case for the Department of Justice was presented by the Controller of Prisons, Mr. B. L. Ballard. The hearing was unfinished when the adjournment was taken and will be continued this morning. Mt Skelton said Miss Matheson appeared before the Court at Auckland on two charges, one of being an idle and disorderly person, in that she had insufficient lawful means of support, and another of being a delinquent under the Child Welfare Act. (On the first charge she was arrested on April 16, 1931,' being then 16 years of age, and on the following day she was remanded to appear on May 2 in the Children’s Court. From the time she ( entered the Court she did not open her mouth.. and the Court records disclosed that there was no remand by consent; it was simply a straight-out remand. Major Annie Gordon, of the Salvation Army, female probation officer at Auckland, said that the girl ought to be in gaol, and took her to the Salvation Army Home. The girl demanded to see a solicitor, but this was refused her. . ; , ' ■ “ : Mr. Dallard: Mr. Chairman, it is not usual for counsel to be put on oath, but I do not think it fair for Mr. Skelton to make such statements. ' Mr. Skelton: I will call evidence on vtb. ; ■■ 'j ■ Left Salvation Army Home. Mr. Skelton said Major Gordon also refused to let the girl see her mother. She wrote two letters to her mother, but apparently they were not posted, because the niother never received them. ■ Between May 2 and May 9, the girl left the Salvation Army home without consent on account of the treatment received there. Major Got-. don said she intended to have the girl sent to the Borstal institution at Wellington. The mother strongly objected to such a. suggestion, and said she wojojd rather send her, at her own expense, to a Roman Catholic home at Christchurch. ' ' The first charge came up on May 9 in the absence of accused, Mr. Skelton < continued. Police records showed that the feirl made no appearance in court on that date. On this count, Mr. E. O. Cutten, " S.M., convicted and discharged the girl. The report sent in by the department would try to infer that this was actually a mistake in form. If there was a mistake in form it- should have been corrected then. It \ was obviously intended that on this charge the girl should-have been convicted and discharged. ’ The illegality consisted of two distinct points. In the first place the Legislature laid it down that a person without his or her consent could not be remanded for more.than eight days. The petitioner would say on oath that she did not give her consent; if she did, it would have appeared on the records. In the second place, the charge should have been heard on May 2. There was no record of any proceedings on that date, and any subsequent proceedings were illegal in that they were taken in the absence of the accused person. - Mr. Justice Smith, in the Supreme Court, Auckland; held these two points to be correct. The girl was not represented by counsel or in person. “The case discloses the most remarkable state of procedure that I have ever seen- in my experience,” counsel said. “It overrides every principle of British justice.” , .. ! Apparently after this charge, Major Gordon, in.pursuance of her threat to have the girl sent to a Borstal institution,obtained information that she was a delinquent child, counsel' continued. She appeared on a charge of being a delinquent child under the Child Welfare Act on the same day that she was convicted and discharged for being idle and disorderly, At the hearing of this charge, Major Gordon, who denied being present at the proceedings, was alleged to have said to the court that the girl had been living with a Chinaman at Mangere. When the girl was taken to a Borstal institution at Wellington, a medical examination ’ disproved this. Mr. Semple: Was it sworn that she was living with a Chinaman? Counsel: It was not sworn. It was given in court, and the only evidence a magistrate need accept is a statement from the child welfare officer. There is no record of any evidence being called in the court. Counsel added that under the Child Welfare Act, a magistrate had no power to send the girl to a Borstal institution. The most he could do was to send her to one of the institutions scheduled in the Act. Petitioner’s Evidence. The petitioner, Annie Lillian Matheson, recounted the circumstances of her leaving home owing to disagreement with her parents about going to dances. At the hearing of the first charge, she said, Major Gordon said she was pleading guilty and asked for a fortnight’s remand. Witness did not open her mouth in court. She was not asked if she consented to the 14 days’ remand. Major Gordon said she should be in Mount Eden, but as a personal favour She would take her to the Salvation Army home in Auckland. When she asked Major Gordon for permission to consult a solicitor, the reply was: “No, you are too wicked to see a solicitor.'” ■" Major Gordon had never

seen her before, so anything she said was purely hearsay. She ran away as a result of the treatment in the home, going to stay with friends at Kingsland. She was later arrested and told she had been sentenced to three years’ detention in a Borstal Institution. She did not know that a charge of being a ' delinquent had been brought against her, and was absolutely ignorant of the whole proceedings. She was in the Borstal institution until December, 1932, being released on probationary license. On October 26 last, a policeman called at her home at 8 a.m. and took her away to Mount Eden gaol, and she remained there until November 3, 1933, when she was released upon a writ of habeas corpus by. Mr. Justice Smith. : '' Life at Borstal. Petitioner said a statement madeby Major Gordon that she had been living with a Chinaman at Mangere was absolutely untrue. In the Borstal institution the major topic of conversation was sex. There were competitions there to see who could steal the quietest and the quickest. Many of the inmates were suffering from sexual disease, and she had to mix with them. After she had been released on probation she had to go to hospital suffering from haemorrhage of the lungs as a result of a cold contracted in the institution. When she went down . e street, girls from the Borstal recognised her. If she had had an opportunity, of calling evidence on the charges, in her opinion there would have been \po conviction against her, She was not given any opportunity of explaining her conduct. . " In .answer to the chairman, petitioner said a statement on the. police file that she had misconducted herself with a sailor was untrue. She believed the proceedings taken against her were due to Major Gordon. The Chairman: You say definitely you asked Major Annie Gordon to see a solicitor or get into touch with your mother, and that it was refused ? “Ygs.”" Mr. Semple: You say you were not acquainted with the fact that you were to be charged, and you were not allowed counsel?—.“That is the case.” Major Gordon alleged you were living with a Chinaman and no; doubt it was on that you were committed to the Borstal at Wellington?—“Yes.” Mr. Semple: Surely that is a terrible indictment without-evidence to prove No evidence need be brought before the court under the Child Welfare Act at all. It is merely hearsay. , , „„ Mr. Semple: It is almost as bad as death to a girl to say she is living with a Chinaman. Surely the first principles of British justice demand that some evidence should’ be brought. . Mr. Semple (to petitioner) : You state you were sentenced entirely in your absence without counsel and without due -notice having given to you or to your parents?—“Yes.” Mother’s Story. ■ Elizabeth Matheson, mother of the petitioner, said she had certain * disagreements with her daughter in 1931 as a result of which the latter left home for a few dfiys. She requested a constable to fetch her from a dance hall so as to give her a fright. This was done one evening, but the girl was not allowed to go home. On May 2, when the girl was charged, Major Annie Gordon said the case could not go on that day.. Major Gordon said she thought it would do the girl good to go tp the Salvation Army Home for a' while. After the girl ran away from the Salvation Army Home Major Gordon suggested that she should be placed in a Borstal institution, but witness strongly objected to this. Neither witness nor h£r husband received any notice that the case was coming on on May 9. Witness was in court when the case was heard, and Major Gordon, told the magistrate that she had reason to believe that the girl had been living with a Chinaman at Mangere, and she suggested that she be placed in a Borstal institution for three years. Witness was flabbergasted at such an allegation; the first time it had been made was in court. The whole proceedings were taken in the girl’s absence without any notice being-served either on witness or the girl. She was released from Borstal in December, -1932, and lived at home until Octoper 26,1933, when a policeman called and took her away saying that her probationary license had been cancelled. A constable who called the day before said the girl had been seen late at night on the wharf with sailors. Inspector Cummings produced a statement made by the mother to the police, in which she requested that thq girl be arrested for vagrancy, as she could not be kept under control. The night the statement was made, a constable went and got the girl from a restaurant. ' ' . . \ To this Mrs. Matheson said she was positive she did not make such a statement. Department’s Case. . Making observations on behalf of the department, Mr. Dallard said there had been a considerable amount of misunderstanding and confusion both on the part of counsel for petitioner and petitioner herself. This was due to a failure to appreciate the fundamental difference between the children’s courts and the ordinary criminal courts. The Children’s. Court was essentially a court of correction with a looseness of procedure to enable the court to inquire not only into a particular offence, but also into all the surrounding circumstances. The offence really loomed very little in the picture so far as the Children’s Court was concerned. Much had been made of the remand for 15 days. An adjournment could be given for an indefinite time in a summary case, and in the present case the magistrate dealt with it summarily. The police papers showed that the girl s parents were notified of the proceedings. He'submitted that Mr. Cutten, S.M., was not one deliberately to set aside the interests of the parents in an endeavour to punish the child. The girl was nominally the petitioner in the case, Mr. Dallard said, but he really did not think she appreciated its significance. She was probably elated with a false sense of importance at the notoriety given to her doings. It had always been the practice If a person had not exhausted all his or her legal remedies that they should be exhausted before going to a Parliamentary Committee He would say the fact that . a petition was brought to a Parliament. ar ? Committee was a tacit admission that petitioner had a weak case so far as legal remedies were concerned. “‘Extraordinary Statement.” Petitioner’s statement was an extraordinary one, that an innocent choir girl had been smashed by police investigation, he continued. The Chairman: That statement was not in the petition. Mr. Dallard: It has appeared in the Press and I submit I am entitled to use the expression. There has been a great ° f , ? übllelt y given to this case, public interest has been aroused, and the public is rightly concerned as to whether there has been a miscarriage of justice.

The Chairman: I can truthfully say I have not even read the case in the newspapers, and I do not think it would

be right to suggest that the committee has been influenced by the papers. Mr. Dallard: I will withdraw the suggestion of innocent choir girl. Mr. Dallard said the petitioner, on the complaint of her mother through the police, was charged with being “idle and disorderly” under the Police Offences Act. The charge could have been dealt with summarily, but was adjourned pending further inquiries into the case. The adjournment was by consent, and this fact was expressly noted by Mr. Hunt, S.M., who dealt with the matter. When the case came up again for hearing, Mr. Cutten considered it more appropriate for a charge to be laid under the Child Welfare Act. The “idle and disorderly” charge was nominally disposed of by the girl being convicted and discharged and the nolice laid a charge under Section 13 of the Child Welfare Act to the effect tha’ she was “a delinquent child.” It would have been, more fitting had she been charged with being not under proper control, which was the following clause in the section, but the express nature of the charge was merely a matter of form. “Commonsense Course.” There was no doubt that the magistrate, in the exercise of his discretion and having regard to all the circumstances of the case, decided that a period of Borstal detention was the most appropriate form of treatment, he continued. Had he not decided to invoke the powers under Section 19, the only institution that he could have committed the petitioner to was an institution under the Child Welfare Act. Had this course been adopted, the girl could have been later transferred to, a Borstal Institution. Instead of following this roundabout course, it seemed he constituted the Children’s Court as an ordinary court of summary jurisdiction; and dealt with the case in the manner complained of. Whether this constituted an irregularity of form or an irregularity of procedure was a matter on which the trial judge in habeas corpus proceedings had already expressed an opinion, but it could not be gainsaid that the magistrate’s action was the common sense course in view of the circumstances of the ease. z The Chairman: Was Major Annie Gordon, as probation officer, judge and jury as to whether this girl should be allowed to have counsel? Mr. Dallard: That is a grossly ridiculous suggestion made by petitioner’s counsel. The thing is too silly to be put across members of this committee. , • /;. : - Suggested Motives. Counsel: You are aware that Mr. Cutten, S.M., is now out of New Zealand, that he is not likely to come back, and that he is reputed to have no assets? Mr. Dallard: I am not aware of it. Counsel: Would you expect petitioner to take action against him? 1 Mr. Dallard: The law provides the remedy. . Counsel: Are .you bringing all the filth you can before the committee to justify the actions of the officials? . Mr. ■ Dallard: Not to justify the officials, but to justify facts. You have advised .this unfortunate girl to indulge in publicity because you feel you will possibly get more out of this committee than impecunious Mr. Cutten. Counsel: In other words, you assume our motives are improper. Mr. Dallard: Your motives are £lOOO plus £5O for expenses. Counsel: Would you be surprised to know our £5O has been paid?

Mr. Dallard: I should not be surprised at all, because I understand that Mr. and Mrs. Matheson are respectable people. Counsel: And you are assuming we brought this petition to get our costs? Mr. Dallard :’That is whaf I assume. Lengthy evidence was heard from Inspector Cummings in regard to the girl’s character. Cross-examination was proceeding when the adjournment until 10 o’clock this morning was taken.