THE POSITION OF DEFENDANTS

Evening Post, Volume LXVII, Issue 23, 28 January 1904, Page 6

THE POSITION OF DEFENDANTS

JUDOMENT IN AN U'PEAL CASE. There were- important pointe involved in an appeal argued before the. Chief Justice yesterday afternoon, which, it was eta-ted, had not been raised tiefore in this colony. The appeal was modo under tho Dcntituto Persons Act by John Cooper, for whom Mr. Jollicoe appewred, ngainst A decision by the. Stipendiary Magiatrnte *t Wellington, in a c«»c hi which Cooper tra« ordered to contribute towards the maintenance of an illegitiinuto child of which he wa« adjudged the father. Mr. Brown appeared for tlw re.«q)ondcnt, tho mother of the child. Instead of taking tho evidence afresh, it was agreed that tho evidence given before the Magistrate iihould be deemed ; to bo tho 'eyidenco e'von in this Court. Two questiuns of W ui'ObC. The defendant wa» bummonrd on a witno.V!, and put into the witnessbox. Ho objected to answer questions rclev.ont to the paternity of tho child, on the ground that the. question* would submit him to disability, and that ho was not bound to answer them. The Magistrate- overruled tho objection, and tae first qucution was whether, if he wua reexamined in the Supreme Court, llw Honour would compel him to answer ques tiotu?. * In the cour.to of hia judgment thin morning the Chief Justice &aid that by section 107 of tho Justice* of iho Peat'« Act 1882, defendants, in the caae of com p'.ainiA agaitwst them, aro compclbblu to answer, qucstion.s. The only distinctioiv between an ordinary complaint under that, Act and a complaint uitiler tlw> Destitute Per^n.*! Act wn« tlint a complaint undei tho lattier statute wa« on oatb, and wor required to lw on oath by the statute. Tn Hut Honour's opinion that outdo no differ' encc. It was still a complaint, and not an information, and section 107 of th» Act nf 1832 Bi\ys: "The defendant shall be competent to, and mny be compelled to, givo evidence upon the hearing of any ■och complaint." Furthw, it was atlmi*.teel during tho argument that our law in tfefert'nc« to baMardy was similar to that in England, and it had been hold in EogLuid tlwt o. defendant in a baAUirdy ca«« ,wa« liable to bo <;ulhd as v. witnws, aj»l may be compclkd to give ovtden^o. In the ca»e of the Queen v. Flavell, tho very point waa decitkd that tho Court had power to commit a witnrai who was a defendant iv a. ba*tat'dy case if ho declined to answer question**. Tlie only distinction that could b« raised between that case and this ww that tho defendant there apparently did not tako the objection tlmt the fliiwcra might tond to «übject him to a penalty. But in His Honour's opinion that objection could not bave been taken. Ifc-ause, as Lord Campbell had said, , proceeding tinder tho bastardy laws w<i« nob a- i>roceeding against a. man for un offence, but was a mere civil remedy to compel him ton<ain tain his cniltl, Tlte Chief Justice wa» therefore of opinion that, the defendant Cooper wns rompellable- to answer questions relevant to tho issuo befura tho Magistrate, and therefore tho evidence was admis«ible, The. second point raised was that as there lukl been a failure some years before to maintain tlte child, six months having elapsed from the fir.< 4 failure, there could not be a complaint made under thu Act of 1882 for failure to maintain on the date mentioned in the complaint, which was within six months of the making of the complaint. In Hut Honours opinion this point Also was Invalid. A neglect to maintain was sufficient, and though there might have been a neglect to maintain b'ix years before, that would not disentitle the complainant to sue for a, neglect to maintain within six months of fcb# making of her complaint. This Court

decided that point, though it wa.s an obiter dictum, 111 Sutherland v. M'Uimpsey und another. Tho catv.s rehod on by appellant wero not in point. Heio all that was necessary wj* )i ni'glort to piovide, and th? mciv fact tli.it there liud been prior neglects did not affect llio neglect on which the <MtnjvUunt wus bused. His Honour theroforo held that neither ground taken was valid, and tin* appojil must bo di-suiishod, with £6 6s cost.s, und disbursements, and tho order mado by tho Court below continued.