KEPT AT ROTOROA

Gisborne Times, Volume LXXI, Issue 11325, 1 October 1930, Page 6

KEPT AT ROTOROA

ALLEGED ILLEGAL DETENTION.

CASE BEFORE APPEAL COURT,

(press ..Association.)

WELLINGTON, Sept. 30. .The Court of Appeal to-dav dea't with the appeal of Cecil Hazlett, of North Taiera, Otago, from the -judgment of Mr. Justice Smith refusing to. con firm and make absolute a rule jiisi to show cause why a writ of habeas cott/us should not issue to ThomaS Buttimore to deliver, the body of Cecil Hazlett, detained in his custody as an officer in charge of a certified; inebriates’ home at Rotoroai

The facts.as found by Mr. Justice Smith are that on December L> last K. C. Hazlett made a coinuhnnr -|,rider . the Reformatory Institutions Act. before Mr. J. R. Bartholomew magistrate at Dunedin, that Oeml Hazlett., brother of the said K C Hazlett, was an habitual inebriate within the said Act. Having made complaint, E. 0. Hazlett, with his solicitor. Mr. Pnvne interviewed the magistrate and informed him of the condition of Cecil Hazlett as be understood it. He told the magistrate that he had on several occasions seen his brother very ill from the effects of excessive indulgence in alcoholic linuor, and that he informed his brother that unless the latter ceased to take liouor in excess he would he compelled to apply to have hiin detained in his own interests in some institution. He also informed the magistrate r( the exact condition in which he had seen his brother on previous occasions.

The magistrate, on being informed, • decided to issue a warrant for the arrest of Hazlett in lieu of a summons. The hearing of the complaint was fixed for 2 o’clock on December 17, at North Taieri. On the aftei--noon of December 17 Hazlett was in a low state of health, and suffering severely from the effects of alcoholic ’ liquor. His condition was such that two doctors agreed that it would have been dangerous to move him to Dunedin to hear the complaint. At 2 p.m. Mr. Payne and two constables were admitted to Hnzlett's home. 'Hazlett recognised Mr. Payne, who asked him whether he would consent to an order for detention in an institution. Hazlett refused to consent, and the constables then executed the warrant. COURT AT BEDSIDE. The constables were required by warrant to bring him before the magistrate. They did not do this literally, but remained by his bedside for a few moments until the magistrate, accompanied by the clerk of the court, two doctors and two brothers of Hazlett entered the room. The clerk read the complaint to Hazlett and asked him whether he consented to .an order being made. Hazlett was in a weak state but well aware of the nature of the proceedings. It does not appear what his answer to the clerk of the court was, but the magistrate explained to Hazlett that it was to be determined whether in his own interests he should be de- ] tained in an institution, and asked j him if he understood the application, j Hazlett replied, “Yes, and I won’t 1 go there.” Having ascertained that j Hazlett understood the application the magistrate decided to hear evidence. - Mr. Justice Smith held that the hearing was substantially within the provision of the Justices of the Peace Act, which regulates proceedings when a defendant does not admit the truth of a complaint. The main objection taken by Mr. J. J. Sullivan, counsel for Hazlett, in the Supreme Court, was that the order for detention was made in the proceedings,, which were in excess of the magistrate’s jurisdiction because the complaint was not heard and determined by the magistrate as reouired by statute. Mr. Justice Smith, however, refused to uphold this contention and discharged the rule nisi.

.An appeal is now brought, from this decision. On the bench were the Chief Justice, Sir Michael Myers, Mr. justice Herdman, Mr. Justice Blair, and. Mr. Justice Kennedy, Air Sullivan appeared for appellant, (and Mr. A. H. Johnstone for respondent. Dealing with the preliminaiw point of the right of appeal, Mr. Johnstone said he had considered the position and was of the opinion that as the matter was civil, and not criminal, Ithere was a right of appeal, and lie •would not take objection to the jurisdiction of the court to'hear the appeal.

ALLEGED WANT OF. Oil EXCESS OF JURISDICTION.

Mr. Sullivan said uncontested evidence showed that on December ] 7 Hazlett was seriously ill in bed when Mr. Payne appeared and asked him if he consented to an order. Two policemen in plain clothes came in. and later a magistrate. A form of trial took place, and an order was made against Hazlett. Hazlett’s condition of health was very poor, and even when he arrived on the island two days later he was still in the last stages of delirium tremens. His submission on these facts were: (1) That the appellant was irregularly and illegally committed in that he had no trial or hearing; (2) that he was committed unheard without the opportunity of being heard ; (3) that he had committed no offence; (4) that there was a want of, or excess of jurisdiction on the part of the magistrate for the reasons container! in the submissions 1, 2, and 3, and also because of the time or place of hearing.

Mr. i c r.illivan contended that one of the most sacred principles of the law was that no man should he condemned unheard. The magistrate had explained that he fixed Tr.ieri as the place «-f trial because the ' case was an urgent bne, but nevertheless he had taken his time and did not go to the appellant’s home until 2 p.m..the following day. The magistrate had decided to hold the proceedings in private of his own accord, but Mr. Sullivan submitted that he should only do so on the application of the parties. ITuzlett was deprived of all warning. The proceedings were sprung upon him suddenly, .and oe was not given any opportunity- of preparing a defence arid contesting the charge. It must have been dear to‘ the magistrate that Hazlett’ could not possibly put bis case before him, and lie should have. made ' pertain that Hazlett had a,.diance, of stating, a case, and, if necessary, should '. have ' adjourned tfie hearing to a later date to en-' ,able-Hazlett. to do. so. . - ;■ ' '? Continuing, Mr. Sullivan said that the-magistrate did not comply with the procedure Mid down by the Jus-; ■ trees of the Peace Act. Further;: al- • though ithei.magistrate gave Hazlett van opporunity ,of. answering ..the charge!, he did not give him a fair . one. According to the Act ; there ■'ih-ust. hdve : behn ■(1 j' a : charge, (2) - ut-hidtiee',' and (3) -a hearing. In this . iejj.se-. the second; . rcuuirement. • no- . Alee,., was missing. . The .magistrate •ajsp’ ha 3 fio legal right to sit- in Taieri, still:, less" to Constitute His? ;opurt ;in■'■Hazlett’s - bedroom. If he /were sitting’ at}' a magistrate lie ■-should: have acted in conformity with tlie pflneiples. of.-the : • Magistrate’s Gpurt - ifphe .were. sitting as a justice s 'he-could'sit-anywhere in a duly ( established court, bub . not. outVide.bhe.-'. iV>L • .. ' f lIAZLETT CROSS-EXAMINED, vJ WXTNESSES: AT BEDSIDE. : Mr.. Johnstone, for respondent, said-,the judirmerit of. the. Court be;loWshould .lie 'upheld/ for' lire very • •- . '. V ' ' •:VN N-N, '•■■■'

reasonings set forth in judgment itself. It was eonceeded by him that there was no better settled principle of the law than that both sides to anv action, civil or criminal, should have a fair and just hearing, but there was no abstract rule as to what was a just hearing in any particular case. That would always he a question of fact, It was also true there were statutes, which deprived a man of his liberty without any hearing, viz., Die Mental Defectives Act, and the Reformatory Institutions Act. This did not go as far as that, hut Mr. Johnstone submitted that the provisions of the statute must he considered in order to arrive at the intention of the Act and in order to determine what in actual circumstances was a fair and just hearing. It was npeessanw to act promp.tlv and a hurried hearing was in Hazlett’s own interests. The sole question for decision by the magistrate was whether or not Hazlett Was an habitual inebriate, and having found him to he sitc-h. the magistrate was entitled to send him to the island. The fact that the Act expressly provided such proceedings as the one in question could he he'd in private, showed that the Act was not regarded as part of the public law of the counirv. It was far better that a man who was unfortunate enough to be an habitual inebriate should be dealt with privately than he should be arrested and brought before a public court to bis disgrace. ' Mr, Johnstone, continuing, contended that there were cases almost innumerable, which showed that Justices, who had persons before them, no matter how they got there, were entitled to hear charges against those presons, provided tliev in fact were aware of the charges brought against them. It was abundantly clear throughout the whole proceedings that Hazlett was aware of the nature of the complaint made to the magistrate. His own words showed he comprehended the situation. He cross-examined witnesses, and made a statement that it was his heart and not liquor which was responsible for bis condition, anil tbe evidence of the magistrate, clerk of the court and two doctors, all proved that although Hazlett was ill he knew clearly what the effect of the order would be. Furthermore, all the steps required by the Justices of the Peace Act were carried out by the magistrate at the hearing. He clearly had jurisdiction, and nothing had -been done which deprived him of chat jurisdiction. Decision was reserved.