A BIASSED BENCH.

NZ Truth, Issue 443, 13 December 1913, Page 4

A BIASSED BENCH.

Judges' Unjust Jiidgmeihs.

A certain great London lawyer jour^ neyed' to fedinbargh to be .present at the trial, ort ft. serious ehargfe, of one of his richest clients. On his arrival at Modern Athens he hailed a cab and instructed the driver to take him to the Courts of Justice. The cabman looked inquiringly at his Lordship and probably divining that he was a stranger, replied, "The . Coorts o* Justice? There's nae aicli place, but I'll drive ye to the Law Cportsi".

Although the cannle cabman's reply held no intentionally covert meaning, and: merely illustrated thp difference m tho nomenclature of the two capital cities, we cannot but admit that the language of the layman was the more accurate. However, were we to set out to describe the same Institution as it exists In the Empire City of Wellington we are afraid that the Edinburgh terminology, m common with that of London.; would bo'seriously at sea. We are; led to this opinion because a careful reading of the evidence led m many cases m which convictions havo been secured m the Wellington Magistrate's Court during the past two or three weeks has made it appear that that institution is neither a Cyjrt of Justice nor ,a Court of Law.

We have already drawn oar readers' attention to certain scaring instances of what we considered , magisterial prejudice against workars on strike chained with certain offences arising out of the present condition of industrial unrest m the Dominion and more particularly m this city. ' The decisions m several ojises were so outrageously unfair and flagrant ihat had Uiey been given at a tliuo when public feeling was m a qonnal and more equable state than is possible under the present circumstances, we oelitve there ' would have been a public outcry agxJnKt Bxlo*l partial and prejudiced administration of the law that would, lmye shaken the Dominion's Justice Department to its very foundations.

We wish to-day to 1 , refer specially to iht- cause ot Charles Finch, who was arrested on tho cvcnJo^r of tho 13th ul.t. and tried and senwnctxl next day to one month's imprisonment, without tho option, on a chnrgo of, using insulting lAß#u*ce. The whole clrcumKtanccs of tho case are such, m our opinion, as to maku oao wonder whotlKU* or not Magistrate Riddell hum not rondcred hl^pwelf incapable of fulUUing his high and onerous duty, by allowing his mind to become so obsessed wKh anUiffgniHm to "tho Btrikora that it aoornu impossible for him to shape his vordtcta m accordance with the- evidence ledCharles finch, tia we liavo naid. waa arrested on tbo evonlng ' of tho 13th ult. Ho wtuj not familiar with court procedure, and was unnwitrc that tie could and should have had an opportunity of sceinj? a lawyer. , Ho wan trlod the next day and satuenced to on© month's Imprisonment without the option, lie had no ono to defend Mm. He bad hnd no opportunity 6t obtaining the services of independent witnei»os who had iwxsn the Inelotmta Immedtaudy preceding hi« arrt»t. On tho ctrcum«ttt»coß coming $0 tho lutowledKe of Mettsni. O'UegttW tinil Diciujon, an applicjition for a re«J>earinj; wn* filed by them, the main ground for which bclnjsr that new ovid«nc«\h«d bc«n -Jijjcovcrcd «mc« the date of >-»•« trial which Uefcndant'a counWl thotijfhl w*« sufficient m li*«»f \o bring about a rever«»l ut ihr vmilcu

V Thfl application wn» duly irnuiliMl by* Magistrate Rlddell and the ro-irtan took pktoe before Magistrate Evtuuu

We have no hesitation m expressing the candid opinion that so far as any serious effort at dispensing justice 'is concerned that 'second trial was nothing but a farce.*- The magistrate, Mr. Evans, evidently conscious of , the weakness of the case for the Crown, m his summing up went out of this way to inflict on the prisoner a long limping argument loaded | with the legal interpretation of several ! clauses m the Act under which the new trial was granted, m order to prove to the prisoner that although he, j tjie magistrate, admitted "the evidence for the. defence may be true as far as < it goes," he had no power to vary or reduce the sentence inflicted m the first trial. All the Act gave him was power to quash the sentence altogether. This, however, he did not do, although it appears to "Truth" jit was the one thing he, ought to , have , done** and of this we hope to be able to convince every fair-minded person "who may read these presents.

Writer is neither a lawyer, nor the son/lot a lawyer, but from'- a careful study of the evidence adduced for and. against .the \ accused we are 'forced to the unpleasant belief that there has not . been a more brazenly ..barpS faced miscarriage of justice for xr.any ■ years — the Lieut. Smith verdict notwithstanding— than .m th is cs se of Charles Finch.' In fact,* the whole cir- f cumstances surrounding tho trial and' conviction of this unfortunate roan are so outrageous and monstrous as to. constitute ;a very grave scandal indeed, and, m our .opinion, are such as would justify- the impeachment not only of Magistrate Riddell and his brother" magistrate, . but the wholo police, administration at the present "time. !' Before a re -hearing or new tr f .aJcan |be granted: the applicant for same has to satisfy the. Court on two points:— j (1) That the. now evidence to be I led was not m the possession of the partj^ applying and could not S by proper have been proi cured by him at the time of , the "first trial, and ' ; (2) It must appear' that the i newly-discovered evidence Is SUCH AS OUGHT to have led the Court to come to a different conclusion from that arrived at, and i IT IS NOT SUFFICIENT that such evidence MIGHT have led to a different conclusion. Here we have it distinctly laid down in' the case of itennedy y. Jones, as reported m the New Zealand Law Reports, that before a nevr trial can be granted the new evidence must not only be such as "MIGHT" haVe led to a different conclusion; it must be such as "OUGHT" to do so. To use tne» language of Mr. Justice Edwards m a ! recent case: , Tho new evidence brought forward must BE CONCLUSIVE IN ! FAVOR OF THE APPLICANT. i■-■■ ■■ ■ . Itseeins to '"Truth" that the upplfcutlon having been granted. Mr. Magis-, trate Riddell, who convicted Finch at his first trial, must have come to the conclusion that had the new evidence been led before him at the trial he would have acquitted <he accused, otherwise he could not hjv'e granted a re-hearing. .

The iQharge was laid against Pinch by two special constables, named re-, spectively Wellwood and Wilson. They said thai at the time the offence was committed they were riding m a tramcar while the accused Pinch v/as on the pavement. In their evidence one'' said Pinch was walking m the same direction as the car was travelling, while the' other declared Pinch and', two others, were standing on tho kerb facing the car as it passed. Both specials admitted they had been drinking. Wellwood could giva the names of only two hotels they had been In, while Wilson said he did not know how many drinks they had had, that they "might have been m. every .pub m Wellington:" And these wijre the ONLY WITNESSES FOR THE FRQSECUTION,

Finch denied. tho charge, and was supported m. his denial by a witness named kinder, who confessed that he and not Finch made use of the term complained of. In addition to this witness there were several other genUemen who saw the whole occurrence. The witriesses' were personally unknown to Finch, but on hearing: of his conviction at the first trial and thr.: steps were being taken to secure a rehearing on his behalf, they had voluntarily" come forward to give evidence on his behalf. This when lyd wa» m our opinion so conclusive, ho confirmatory and so perfectly corroborative of the other, that own if the witnesses for the prosecution had not been confined to the otllcerfi who arrested Finch, no unprejudiced and impartial magistrate could do. other than jyrant an acquittal. When m addition to this we have it on (heir own ndraiuslon that ..the urresUna: oflicers had been drinking less or more— probably more —all day, that their respective evidence instead uf being corroborative was conflicting and confusing on vital points, the magistrate's decision becomes all the more disgraceful, if not dastardly.

Thero m another point which, ai.though 1101 ' brought forward by defending counsel, is very important and ought not to be lost sight of. should any further action bo contemplatecrby thoso acting on behalf uf Finch- Thu two special constables declared inai they got off the car and went back to effect the arrear of Finch. Now such arrest even it Finch was tfuilty of the ohurjre recorded against him, waa aDaolutely illegal, and tho defendant waa perfectly justified m resisting the same. Constables have no legal right to- arrest anyone for using Insultinc lansuo«c. ThiH has been distinct!*' decided by Mr. Justice. Cooper In -in* case of turner v. Pateruon, where no declared that the mere use of Insulting or abusive language m a. public placn Is not suiliclent Jr. lu^if | O justify an arrest without warrant and he further decided that a mere use of insulting language doca not constitute a breach of tho peace. It | H ahw worthy of note that thfe Police Department iwilead of appwllng against tho Judgment of Mr. Justice Coopt-r, «o tar endorsed it M to dl«ml*.-» from tho force tho eoiwtablo who im?«ted tn« man under sinaiar circumstance* tt» these m the Finch case.

Wo admit that tho evidence brought forward on tho second tria) wm exceedingly f!iHCojic«rtlnjc to thow> who claim to Ik; on the slcl« of law and ordor. It alumc*! thnt the uci of iirrcMtinjr Finch was « pr«ve error, nnd that thin net had b<p«n the CAuac of whatever iiißrtrrfer ftUl)»6*|uenLly nron«'. l'urth^r. li $»UtCi»<l hl« Worship on the horn** of ft diletnniA, If he qunshml the »rnt*«nc« inflicted on the firm trial, it would bo token aa tantamount not only to

an admission, on his part, that he considered the special constables guilty of perjury, but that the accused Finch had good and substantial grounds (or proceeding against the Police Department (or damages for wrongful arrest, all of which could scarcely be considered na conducive to Mr. Magistrate Kvrub's advancement m a judicial rapacity. On the other hand, the confirming by Mr. Evans of the sentence passed upon Finch by Magistrate Riddell is equipollent to a declnralion that those citizens who canto forward to give evidence m the second uiul, wittingly and ' wilfully covumittcd perjury with the view and intention of defeating the ends of justice. Magistrate Evunu may adroitly n<^ gOLjate the dlinciilty by dtjclaring that those reputable citizens made a mistake., but that does not lesson tho seriousness of the implied misdemeanor.

The whole case is our that calls for the most tenacious and persevering effort being made In the interests of common justice nnd fair play to havo tho conviction Hot u«ide. The judgment, if it is Allowed to stand, brands not only Much, but * thoj,o half-dozen reputable citizens who evidence on his behalf, ns perjurers. Hut, this apart, ■•Truth" Is convinced that the \crdict is noL sustained by the record of tho evidence heard before the* Court, nnd thin fact must have been as palpable nnd plain to his Worship. Kvon after making due allowance for personal b!«« against tho striker, which, whether we admit it or not. has played so strong a part In the trials herein referred to, and for tho natural reluctnnco on the part of «m assistant Magistrate to set aiiide the judgment of his nominal senior, we consider Mr. Kvans could not but feel thot a doubt existed a* to whether Finch was tho guilty person, and, this heinK 8 t) i jje ought to hnvo diamlased the case. Instead, he hun thoujrht i fit to confirm a sentence which is so monstrously at variance- with Urn j evidence as to bring into bitter contempt and contumely tho law and tho administration of the Inw *« tho ! eyes of every fair-mlndod citizen, i For soinn time bnck the Wellington MagiMtrate's Court ha« boon notorious for it» lop-nided and loose decisions, but that m the cas* of Finch i*» *o extraordinarily ntrocio»»f» that even the Kerolc )Terdmitn. irr-rc the ful 1 faclß placed before him, would have no hesitation In pronouncing It nn Infnmmia mnladnilnLxtfrttion of judicial function.