CASE CLOSED

New Zealand Herald, Volume LXXVI, Issue 23491, 31 October 1939, Page 8

CASE CLOSED

MOTHER DISCHARGED MELBOURNE WOMAN CUSTODY .OF DAUGHTER PROSECUTION WITHDRAWN Following an announcement by the police that they did not intend to proceed with the case, a young married woman from Melbourne who was arrested on the Monterey on October 16 when the ship arrived from Australia was discharged when she appeared on remand before Mr. C. R. Orr Walker, S.M., in the Police Court yesterday. Accused, Alison Clare Whitaker, aged 31, was charged with unlawfully taking an unmarried girl under 16 out of the possession and against the will of her parent and guardian and the person having lawful care find charge of her. Detective-Sergeant McHugh represented the police. Mr. A. H. Johnstone, K.C., and Mr. T. Henry, appeared for accused. No Further Action Senior-Detective A. Wightman, of Melbourne, gave evidence that he had received cabled instructions from fcho Commissioner of Police in Melbourne stating that no further action was to be taken in the matter.

On reading a cablegram produced, tlie magistrate said that it informed the Court that the informant did not intend to offer evidence.

Mr. McHugh: In face of that I do not intend to call evidence and do not intend to proceed further. Mr. Johnstone submitted that in the circumstances the magistrate should discharge accused absolutely and not merely dismiss the case against her at this stage for want of prosecution. Contentions by Counsel

"The facts show that the application for the return of accused was not made in faith and in the interests of justice," said Mr. Johnstone. Information before the Court showed that the prosecution was a private prosecution commenced in Melbourne by the accused's husband. From that 'it could be inferred that the police did not regard the case as a police case.

The informant and accused had ivwo children, a boy and a girl, Mr. Johnstone continued. The marriage was unhappy and last April husband and wife decided to part. There was no reason to believe that the wife, or the husband for that matter, were other than fond of the children. Accused had decided to go to California to live with a sister and thought that the boy could well bo cared for in Mel bourne by her husband: On the other hand she considered that the girl required her own supervision and care and decided to take her with her. Reason" for Warrant

"She may have exceeded her rights in doing so, but, after all, she was the mother of the child and felt it her duty to look after her," Mr. Johnstone added. Accused obtained passage for herself and her daughter in the Monterey which arrived at Auckland on October 16. Shortly after her arrival she was arrested on a provisional warrant and had since appeared in the Court three times on the warrant and had been remanded each time. This was a criminal case and the Court was not interested in the custody of the child, Mr. Johnstone said. The only reason for a warrant was to further the ends of criminal justice, but it was now perfectly plain that this warrant was not sough.t for that purpose at all, but with the object of detaining accused in Auckland long enough to enable the husband to recover the child. Husband Obtains Child

"We say that advisedly because she was told on arrival by someone in authority— not the police—that she was free to go" on as long as she left the child," Mr. Johnstone said. However, she decided not to do that and remained in Auckland.

Last Wednesday the husband arrived in Auckland and left the 2iext day with the child, counsel continued. His object was fulfilled and all his interest in the prosecution ceased. "The very next day we received a letter from his solicitor offering to help the mother in every way possible," Mr. Johnstone added. "Then we received a cablegram from Melbourne asking if we would consent- to the withdrawal of the proceedings. In our submission there lias been a grave abuse of the procedure provided under the Fugitive Offenders Act of 1 SSI and we are certain that if Your Worship had known the full facts the provisional warrant would not have been issued." Mr. Johnstone contended that the prosecution must have known that no jury would have convicted accused. The prosecution was not made in good faith and it was asked that accused be discharged absolutely. Point Stressed by Police

In referring to Mr. Johnstone's statement that accused had been told that she could proceed freely if she left the child, Mr. McHtigh' stressed the point that no representative of the New Zealand or Australian police had been responsible for this. The magistrate said that in view of the circumstances he would not make an order sending accused back to Australia. The husband's object was not to punish his wife, but to obtain custody of the child, which he would have lost absolutely if she had gone on to America. On the other hand, it was a question what else the husband could have done to get the child if he had not taken this step. The magistrate in Melbourne would not have issued the original warrant if it had not been < for that. i Mother Returning to Melbourne Again, having regard to the circumstances, Mr. Orr Walker said he would not have issued an extradition order in any case. He now proposed to discharge accused from the proceedings 'f K nthe f. she proposes to return to Melbourne," the magistrate said Mr. Johnstone: She"is returning today. e

Ilio Magistrate: And stops will" bo taken to thrash out the matter there 9 +r J 1 o ?l" ston0 1 : Y <*, she is as fond of the child as she over wns.