STRIKE CASES

Dominion, Volume 37, Issue 153, 25 March 1944, Page 8

STRIKE CASES

Abuse Of Processes Of Court Seen MAGISTRATE’S VIEW Prosecutions Started But Withdrawn “1 want to condemn very strongly the course of proceedings in these prosecutions. The launching and subsequent withdrawal or failure to prosecute a number of informations is an unfortunate use of the processes of the Court,” said Mr. Goulding, S.M., in the Magistrates Court, Wellington, yesterday. He was referring to actions initiated by the inspector of factories under the Strike and Lockout Emergency Regulations. Thirty informations were issued against waterside workers employed by the Waterfront Control Commission, charging each of them with being party to a strike in that they discontinued their employment, such action having a tendency to interfere with the delivery of good's in the shipping industry. Only six of the informations were served, on which fact the magistrate commented unfavourably at the original hearing. Subsequently the Crown intimated that it did not intend to offer any evidence in the six cases and they were accordingly dismissed. The other 24 informations were withdrawn.

Meantime, however, three permanent employees of the Wellington Harbour Board had also been charged with being parties to a strike and had been convicted bv Mr. Goulding. At the request of their counsel, Air. AV. E. Leicester, he deferred sentence till yesterday morning. The men concerned, Bertram Allen, Percy George Johnson and William Sandford, were each fined £lO. At Air. Leicester’s request the magistrate agreed to state a case for appeal. Addressing the Court before sentence was imposed, Air. W. R. Birks, who appeared in the absence of the Crown prosecutor, Mr. AV. H. Cunningham, reiterated that the department did not press for penalty. The magistrate said that such an attitude surprised him as he regarded the offences as serious.

Counsel for Defendants Protests. Afr. Leicester said it was alleged that ou February 14 —the day before that in respect of which his clients were charged —three members of the AVellington AVaterside AVorkers’ Union refused to carry out an order on the waterfront and were dismissed. As the result of a refusal by the employers to reinstate them, more than 100 men refused to work on an overseas vessel that afternoon. That vessel was concerned in the direct war effort. Members of the AVellington AVaterside AVorkers’ Union refused to work on the Tamahine on the evening of the following day. No prosecutions had been issued against them. That was a refusal in respect of their ordinary work, whereas his clients were being prosecuted in respect of refusal to work overtime. AVbether a defence would have been offered to the charges arising out of the incident on the 14th or whether that defence would have been successful, he could not say; but the fact was that the authorities had thought the circumstances justified a number of prosecutions, all of which had been withdrawn against members of the more powerful union. In the result, the three men concerned in the offences which apjieared of lesser gravity were prosecuted and the others permitted to go scot-free. Air. Leicester stated that one of the functions of counsel was to safeguard the liberties of the subject. He was entitled to protest, and he protested vehemently against what' appeared to be a discrimination against one section of the workers. The actions of the Executive might well be the subject of criticism or even contempt on the part of the public, but it was important that such taint did not attach to the Courts and the judiciary. He knew that there was no ground for such criticism in the case of the Courts and the judiciary, but such a course as was taken in regard to the cases mentioned might well be calculated to create it. It was not sufficient from a public point of view that justice should be done; it was essential that in the minds of the public it should appear to be done. So far as the personal issue was concerned, counsel said that the three defendants had acted according to their principles in refusing to work overtime with free labour. Letters placed in his hands since the decision showed that the harbour board had regarded the obligation to work overtime in a loose manner as there was notice that men would be provided with overtime on a “roster” system and that if they did not work their overtime, they would simply miss the overtime and lose their place on the roster. Furthermore, in June of last year, the secretary of the New Zealand Harbour Board Union had been informed by the manpower officer in writing that men who refused to work overtime could not be penalized for this refusal. It thus appeared that at the worst the men had been tendered wrong advice or had taken a wrong interpretation of /their obligations under the award. In such circumstances it .was most unfortunate that they had to be singled out for prosecution under the Strike and Lock-out Emergency Regulations when an action for breach of the award could have met. the case and enabled the department to have its ruling ns to whether or not overtime was compulsory or voluntary. Magistrate’s View.

Giving his decision after taking further lime to consider the matter, the magistrate said it bad been iudiented that the Crown did not. press for heavy penalties, “But does counsel for the Crown wish me to understaud b.y that that the Crown regards the offences as either trivial or excusable?” he asked. “If the answer is yes, all I can say is that I disagree. If the answer is uo, then I sec no reason why I should regard them as trivial since the legislature itself obviously regards such offences as serious.” The cases could not be regarded as test cases. AVhen the legislature enacted legislation of the kind under which the defendants were prosecuted it might safely be assumed that it did not do so lightly. So when proceedings were instituted under it they should not be instituted lightly. Neither could the offences be regarded as excusable, said the magistrate. They were deliberate, and defendants, after being warned for work, had two hours or more for reflection ou their conduct. If there was a dispute there was proper machinery available to determine it. That machinery was not used and tlie defendants seemed to have acted entirely on their own initiative. He did not think it was any excuse for their action that other men in another union had struck or that they were opposed to working witli what they called “free labour.” Facts mentioned by Mr. Leicester might have lent colour to the view of defendants that they could not be compelled to work overtime, but he held that in fact the men did not: refuse work on this occasion except for the reason that they did not want to work with free labour. Dealing with the suggestion of discrimination. tlie magistrate said that in certain types of offences, such as rioting, the exercise of judgment must be used in determining whether some or all or none of the offenders should be placed before the Court. The only thing to warrant the suggestion of unfair discrimination was that a number of prosecutions which arose out of other incidents and against men not iu the same union were not proceeded with. “The reasons for that course are unknown to the Court, and I cannot on the mere discontinuance of those prosecutions and the continuance of the present, cases conclude that there has been unfair discrimination against these men.” he eoutiuued. ... . Action Criticized.

“I think, however. I should say this: Th: launching and subsequent withdrawal or failure to prosecute a number of informations is an unfortunate use of the processes of the Court. The reasons for it are not given. The Court has uo power to prevent it. But it must inevitably lead to public comment in eases of this kind, and the feeling that breaches of the law —perhaps serious breaches of the law — are going unpunished or being overlooked. That must bring the law itself into disrepute. even contempt.” If the Court processes were used to frighten offenders and then the proceedings were brought to naught, such a course did in a way involve the Court itself, which was powerless to insist upon (he Crown proceeding, mid by involving the Court in that way the iidministralion of justice might itself be brought into disrepute. Mr. Goulding added that he cast uo reflection on counsel for the Crown, who could iu iio.tvax be ..blamed.

Referring to Mr. Leicester’s submission that justice should not only be done! it should also appear to be done, the magistrate said the true meaning was that when a person enme before the Court the Court should deal with him so that he could not say that his trial had been unfair in any way. In applying the principle the Court had no right to be influenced by any extraneous matters or matters not before the Court. Discussing sentence, the magistrate said; “Giving due consideration to all that has been so forcibly said by counsel ou behalf of the defendants and influenced as 1 am, but. to a much lesser extent, by what counsel for the Crown has said, I still cannot completely overlook the offence..”