EIGHTS OF MAGISTRATE

New Zealand Herald, Volume LI, Issue 15519, 29 January 1914, Page 8

EIGHTS OF MAGISTRATE

THE GIVING OF EVIDENCE.

MR. OUTTEN SUBPOENAED.

UNWILLING TO APPEAR AS WITNESS.

The right of a magistrate to refuse to be called as a witness to give evidence as to what transpired in a previous when this evidence is considered by counsel to bo necessary in the interests of justice, was the subject of an interesting discussion at the Police Court yesterday. It- was during the hearing of the assault case in which Sergeant D. Fraser appeared as defendant. Mr.\Brown, counsel for the complainant, stated that he had subpoenaed Mr. E. C. Cutten, S.M., to give evidence as to an admission of the assault which he alleged had been made by the -defendant, in a previous action in reference to the same incident. Mr. F. V. Frazer, S.M., who occupied the bench, said that he did not think it' desirable to call the magistrate, nor any other judicial officer, as a witness. Mr. Brown said that he had a strong objection to calling Mr. Cutten, but he had a stronger objection to jeopardising proving his case. He remarked that he had also subpoenaed Mr. F. J. Stewart, deputy-clerk of the Court, for the same purpose, and he, like Mr. Cutten, had expressed strong objections to appearing in the witness-box. He hoped that'there was m>t a conspiracy of silence. Mr. Frazer again gave his opinion that it was improper to call a judicial officer to give evidence on information that had come to his knowledge in his official position, and he quoted an authority which stated that a judge was privileged to refuse to give evidence under such circumstances. In the present case every other means of obtaining the evidence required should be exhausted before Mr. Cutten was called. If all other means failed, he did not think Mr. Cutten would continue to avail himself of his privilege. Mr. Brown said that the authority quoted referred to judges of the Supreme Court.

Mr. Frazer said that it also applied to other judicial officers. He pointed out that a magistrate presided in Court for the specific' purpose of judging. Mr. Brown : But if a man passes along a road for a specific purpose, and facts come to his knowledge, why should he not be called as a witness? " >

Mr. Frazer said that such a case was altogether different. If a judicial officer acquired information in a private capacity he could, of course, be called as a witness. Mr. Brown : I submit that I am entitled to Mr. Cutten's evidence in this case. Mr. I'razer : I do not think you have exhausted all other means of obtaining what you want. There are the Court orderly and press representatives. * Mr. Brown :', I submit that it is improper that I should; be asked to select the most partial officer I could find, namely a police officer. _ The most: impartial and most reliable witness in such a matter is the magistrate. All that will be required from Mr. Cutten will be his notes of the case. No one is more anxious than I am, continued counsel, to uphold the dignity and reputation of tie Bench, but I even more desire that the evidence "I want should be given by a fair and .impartial' witness, even if it comes from a magistrate. Mr. Frazer : It is not a question of preserving the dignity of the Bench. Mr. Brown hero" agreed to call the subinspector of police, but after, hearing his evidence said that he would still want to hear Mr. Cutten.

• After a short adjournment Frazerstated that if it were ' found necessary in, the interests of justice Mr. Cutten would give evidence in. rebuttal. >»' At the conclusion of the case Mr. Brown stated that if the admission made by the defendant, that lie had - placed his hands on the complainant aid had broken , his collar, would be regarded by the Bench to constitute an assault, he would not call Mr. Cuitten. ' £ . • v k : 1 •

Mr. Frazer said that the act was undoubtedly an assault, but whether justified or not would be a matter for legal argument. * ' \ • * ■