“UNWRITTEN LAW.”

Manawatu Standard, Volume LV, Issue 280, 24 October 1935, Page 6

“UNWRITTEN LAW.”

CONTRARY TO JUSTICE

COMMENT BY JUDGE

“I cannot allow a barrister of this Court to invite the jury to apply the ‘unwritten law’’ ”, stated His Honour Mr Justice Smith, in the Supreme Court at Palmerston North yesterday, when Mr J. M. Gordon, defending Manley Symes on four charges in connection with the shooting occurrence at Te Matai, -was addressing the jury. Mr Gordon said this form of defence pleading had been put forward in a British Court by Sir John Simon. His Honour said that Sir John Simon had expressly disclaimed its application. Mr Gordon: But nevertheless, he applied it. His Honour reiterated that he could not allow a barrister to extend such an invitation to the jury. It was not only contrary to the law, but was not allowed in this country. Mr Gordon: I intend to put my plea in the words of Sir John Simon in the English case. His Honour: Very well, I w’ill hear you. . Mr Gordon said that if a man found his wife “carrying on,” or in compromising circumstances with another man, he could expostulate, and then walk off. That was the law as it stood, but counsel did not subscribe to it at all. Quoting Sir John Simon, lie said:—“As regards the ‘unwritten law’ I do not appeal to it. Ido hot require to do so. It w’ould ’be contrary to my duty to do so and contrary to your duty to listen to it if I did. This is a Court of Justice and you are sw’orn to do justice. It is justice, and justice according to law, that I ask you to mete out to the defendant. How'ever, if it were necessary for me to discuss and decide the ‘unwritten law,’ I say that in a case where no other conceivable course can possibly save your wife not indeed from unfaithfulness, but from destruction of body and soul,- not at the hands of an admirer, but a blackguard, no decent man could suggest that the duty 'of protecting your wife is thereupon dissolved. In the face of such a situation, there is no other course, according to the preposterous law of this country, but that the husband should then retire and leave the wife to her fate.” “This case is a very important one,” stated His Honour, “because in effect, an attempt has been made to invite the jury to apply the ‘unwritten law.’ That is the negation or the law. The law states that no individual citizen must take it into liis own hands to avenge anything. .This must be left to the State, or the community would be an unsafe place in which to live. It is not the duty of the jury, or that of counsel, to consider such an appeal as that. “But provocation is something entirely different from taking the law into your own hands. If a man found his wife in the act of committing adultery and killed the adulterer he would he” indicted for murder, but the law would reduce that to manslaughter. Unless there has been a sudden impulse there is no room for the defence of provocation in mitigating the view of a jury.”