THE NASH CASE

New Zealand Times, Volume L, Issue 11651, 16 October 1923, Page 5

THE NASH CASE

MOTION FOR NEW TRIAL INTERESTING ARGUMENT BEFORE FULL COURT. ALLEGED MISDIRECTION. The Full Court sat yesterday to hear argument in connection with an application for a new trial in the Nash case, moved by Mr G. Toogood, on behalf of Mvk Maud Mary Nash. Air D. R. Hoggard appeared for William Harry Nash, and opposed the motion. On tho bench were the Chief Justice (Sir Robert Stout), Air Justice Hoskin;*, Mr Justice Herdman, Mi* Justice Salmond, and Air Justice Reed. Tho matter came before Air Justice Salmond and a jury, when the parties petitioned for a judicial separation. The jury found Mrs Nash guilty of cruelty towards her husband, and a decision was given in favour of the husband. Mr Toogood asked for a new trial on ©evoral grounds, including that the jury had been misdirected by the trial judge. A SEPARATION? Air Justice Hosking: Why did not the parties agree to a separation at the instance of tho court? “The respondent, on two separate occasions, asked the petitioner to sign a deed of separation, and he did not do so,” replied Air Toogood. “She must, in self-defence, file a cross-peti-tion for judicial separation. ... I am sorry that a matrimonial quarrel of this kind should take up the time of the court. First of all, counsel maintained, there had been a misdirection to the jury. He said the jury had inferred from tho remarks of Air Justice Salmond that if they found both guilty of cruelty to each other, neither could secure a decree. Mr Justice Salmond said he had never used certain words complained of by counsel.

The Chief Justice expressed the opinion that the judge had the right to use his discretion. “But have you any English authorities, Air Toogood?” he asked. “The American practice is very different. . . . That is not applicable to us at all.”

Counsel said he also had English authorities. He maintained that the jury had obtained a wrong impression: They had felt they had to find for one party, when they might have found for both.

Tiie question of alimony had now entered very largely into the case. It was one of the biggest issues; that was one of the reasons why the respondent wanted n decree. It was also one of the reasons why tho respondent had come to the court, proceeded counsel, who contended that it was essential Mrs Nash should disprove those charges, if she wanted to appear before the court in the most favourable light. It was a misdirection on the part of His Honour, he insisted, to indicate to the jury hmv he would apply the law to their finding. He had given an indication a 6 to how he was going to use his discretion.

Authorities were also quoted hv counsel as to the impropriety of judges making observations, and the “danger of using words that a jury might use too literally.” Under the circumstances, he submitted, the respondent was entitled to a new trial. “COULD FIND FOR BOTH PARTIES.”

Air Toogood l said the jury went away thinking that they could only find for one party. Mi Justice Salmond: There was nothing in the direction to lead them to come to such a conclusion. . . . They knew they could find for both parties. The Chief Justice: It was left open to them to find for both parties if they ifked. His Honour then read the words used by Air Justice Salmond. Mr Justice Hosking: Two issues were put to them P Tlie Chief Justice: Yes. Air Toogood maintained that if tho two issues had been left open, the jury would have come back and answered the questions. “Then,” he said, “it was for His Honour to say what he was going to do.” He stated that the words \‘would” and “could” would mean very much the same to a jury. The Chief Justice laughingly remarked: “Nonsensel” Counsel: From the distance they sit from His Honour —— The Chief Justice: It is assumed they know the English language! Air Justice Salmond: Is it a wrong thing for me to tell the jury what the effect of a finding would be? Is tho jury to be kept in the dark? Counsel inferred that the statement (should have been qualified. The Chief Justice: The whole question in—has the jury acted like reasonable men in their finding? A NEW TRIAL? Mr Toogood: I am now moving for a new trial. On what issue? Against the verdict, and misdirection. We want a new trial on our petition. Air Toogood later used the word “erroneous” when quoting an authority. ' The Chief Justice: There is nothing erroneous liore! Counsel: The jury went away You have get no right to say that. You do not know! No, I do not know; though I can assume. Mr Justice Salmond, when counsel was referring to tho number of witnesses called, said: “Tho loss said about some of the witnesses the better, Mr Toogood!” Counsel declared that Airs Nash had evory right to come into court. If anyone had been stubborn about a settlement it was the petitioner. Mr Justice* Rued, referring to the question of alimony, said that if only a few shillings were in dispute, it would be cheaper for tho country if some arrangement were come to. Mr Toogood: And cheaper for the petitioner, too! . . . The wife had every right to come to this court. She is only fighting for her rights. He added that tin’s wa« one of the most infamous attempts he had ever heard of a man trying to throw off Iti-s wife. The court adjourned at this stage until to-morrow morning.