Witnesses Must Be Made To Speak Up And Depositions Must Be Taken In All Cases

NZ Truth, Issue 1063, 8 April 1926, Page 1

Witnesses Must Be Made To Speak Up And Depositions Must Be Taken In All Cases

EVILS THAT HAVE CREPT INTO OUR SYSTEM OF JUSTICE

The Law is m danger of losing its dignity m New Zealand and the first principles of Justice are m danger of being violated and abused; .- ■ ■ V ■ .-■•'■ „- '■ " ' ■ • . ■. . . ' ■ ■ \ ■■■ :■'■ * ■ • . • . :'' '' ■ '■•. •. .- As yet, however, these l evils are not very serious, but they are creeping into the administration of Justice throughout the Dominion, and unless they are checked m the immediate future they' may become a very deadly menace. ■

The remedies are simple. Witnesses must be made to speak uj) andmust not- be allowed to niuirLble and mutter; daily lists of court fixtures must be advertised and exhibited; depositions must be taken m all cases, no matter how trivial, and special private, hearings must be granted to no one unless they fall into a category f or which provision is made by. legislation,

»— — '_ /^- j -> v " —iHERE .would bel S~* littler humanity m ■jj r H\^ our , courts and ■ 8' \\ justice seldom |s|r_. ' n \V ' tempered by WtfiStßim*^ ja V mercy were it not for 'the' fact " that ftfjk f| 111 w common sense and y&liJ \\\ir I. ' discretion are just SpHi la €9 H as essential a part of the make r up of !«^|§======«si~; the presid i-n'-g "^^^s* 1^- i —' judge or . mag'is--1 . trate as know--1 ledge of law. There is .-a. ..limit, howeyer, to' the extent to which either may apply disci etionary powers. " ' Where; for instance, a magistrate makes it . a practice to permit witnesses, day after day, to enter the witness-box... and. mutter and murmur unintelligibly, it does not necessarily follow that .becausV the Bench has' heard every word it is not necessary f cv public or press to do so. I Though it is from the magistrate or judge or jury that the decision must come, the plaintiff and defendant, or ■me prisoner at the bar of justice, is paying counsel to plead forMiim,* and has the privilege^— or should have— of hrraring. every Word said. Wh.atVis i jthe;.Rqsit ! i l p;n,. ; in.-th'!B' majprity of bur magfstra'te's courts to-day? ■ . For. < ; years past,' liberties have. takenVwitli court^ prpcedure, ■v'Uniir at the present time' a day -j-spent m the courts : .conyinces the : rndst easy-going and tolerant in-. / dividual that; if the . haphazard , mot hods' of conducting: them cori"tinues the farce will develop into • an .evil. .: • /' Take the average day m a magistrate's court. .-•':'■■' Principals and; witnessed "m various cyses arrive at ; the. court' according to the time they are advised to do so^by their counsel. . If they have >no : counsel, they prob^ ably arrive, about 9i30 a.m. an,d hang round until the court opens. Sometimes the day's work "starts at 10 a.m, sometimes later. ; Punctuality may be a virtue, but many magistra,tes do not possess it to any degree^ . , Mumbled Mutterings No list of the cases to be heard is posted up a.t' either magistrate's *or supreme, court., ' . ' . '. It is, therefore, impossible, for those whose, business ,* has brought them there or those who have been compelled to come to gain any idea of the time their cases are likely to come up for. hearing, save by inquiry from sundry officials. ■. ■ ',; That there is such 'a daily list m existence may cotuie as a surprise to many people. ■.. >} The magistrate has one m his possession, but hone is furnished for the public. That it .should be ■ ; - prominently'displaved at the courts •■■'■ goes without^ saying, y : , V The business of the day commences wl:en the magistrate sees fit-to arrive on the job. ' Drunk's 'and minor offenders come first,', and it is here that the police constabe comes under notice. s > Stepping to the witness-box, he i'mutters, mumbles, ; and otherwise .does his best to prevent anybody V at all hearing hijn, even though i his back is turned ...to the. court- , room, and he is to all intents and •: purposes./ taking the magistrate ■ > alone into his confidence. ) /Whether the magistrate ever hears the string of uniformed witnesses each morning as they gurgle ' a string of v/crds rapidly and then self-consciously retire, "Truth" does not know. The fact remains that the drunk, or the person charged with any one pf a

score or so of offences that come under the category of minor offences, is just as much entitled to hear what any witness has to say against him as the man charged with murder. ; When the constable has ' finished mumbling his evidence the magistrate curtly asks the accused if he has any questions to ask of the witness. The man m the dock, not having heard a >yord of what the. witness has said, very naturally has, as a rule, no questions to ask. • So it goes on throughout 'the day^ one witness after another taking the magistrate into his or her confidence, ar.d excluding everybody . else ' m, the court. ' ■'■•'"•• ■ : Nor is the Bench alone m this attitude of encouraging a state .of affairs that is contrary to the constitution of court procedure and the ethics of justice. '"• . There appears to exist a tacit understanding between ' counsel an< S magistrate that on no account^ must a witness be ordered to speak m a voice tr-.at will be audible throughout the vhole of the courtroom. Rather than insist upon a witness df.fng so, it is a common thing to see e'theu. counsel concerned aipprijach- 'the witness-box, and stand close beside it while the witness either gives evidenpeir -chief or is cross-examined.;. :■■;' .•; : It. is rarely that a magistrate orders a witness to speak up, and ' iiiiiiiiiiiiiiitiiiiitiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii

much to the disgrace of the judic- • iary many witnesses m our supreme courts are permitted to indulge m this habit of whispering. . ' It is of pai-amount importance that every word spoken should be heard by st 11 : m court. ' Depositions Wanted v No matter how trivial the issue, .the litigants have an undeniable right to hear every word; . counsel on ' both sides cannot be. expected to satisfactorily discharge their duties unless the. witnesses are made to ; speak up; the undefended prisoner must be given every opportunity .of proving .himself innocent of the chai'ge brought against him, and the magistrate, by allowing .-.witnesses to mutter and mumble- takes a. grave risk that some vital;.' piece of evidence will not b'fe brought out and a miscarriage of justice will thus result. ■ : . V .'-'- . . \ Apart from this, there is the; public to be considered. They areHhere because the' law declares itself to be honest, to.be open to any scrutiny and free from intolerance arid unfairness. Such being the.' case, they" have. ' a perfect 1 right to know all that is transpiring. ■ ':";'■; ■„'■-. . ' , . , /. There is another important matter m. .which ; bur 'icburt procedure wants remedying! This is the failure of the magistrate to see that, depositions are. taken m . .allVciyiliCases..;,,.:-. . ',/.-. ! : .'.•■■• V. ■;:'.^ - '■ ■-. . ■■■.■■• V Certainly the : Vpractlce /of taking depositions, m.: .indictable cases is f strictly adhered tbv and. m: the i light of the -haphazard methods employed m Pthe'r directions it is somewhat reImarkable that this all-important liiitjw iiimiiiiiiim iiMimiiiiiJiiiiiiiniiiiimiiiiiiiiiiimiiiiiiiiiiiiimniiiiiiiiiniiiiiiiiimiiiiiiiit.

function has not been neglected. , In applications for separation or for maintenance the evidence is usually of such a conflicting nature as to warrant the services of a \depQsitipn ;clerk/if fof\ho other reason than that the magistrate should have 'an opportunity to peruse the statement of each witness as taken i verbatim". Almost invariably such cases end m the divorce court. : ' : A witness may have sworn one thing in'the lower court and may /. perjure himself or herself m the ', divorce proceedings. There is ho, one to question thei statement..except one or other of the parties to .the proceedings, and then it is a case of oath against oath. Again,? many. civil actions go to a higher court 1 from the magistrate's court, and where the evidence taken at the lower court would often be invaluable to counsel and to the doing .of justice. ' ■ _..... "What has been said m the lower court may, or may hot, find its way into the magistrate's notebook, but- it is safe to say that evidence given on oath is not recorded, verbatim, and what may not be of any moment to the, magistrate may^be of the uttermosc importance to v c6"unsel. -. • , Imptartance Realized Considerable time and trouble would be saved also when eases go fromv the lower to the higher court if dejppsi.tions^ were. taksrh■.-.••-,' ■•>■;*. v' rf.V-y: v :-: f '- rV**v\.--** y It would ".obviate the;.. necessity for lengthy Repetition :6f- evidence.' by witnesses jwho can' ill /afford .the; time' spent waiting about the court, und at the- same time do much towards curtailing legal costs and shortening proceedings. So much importance did the late Sir John Salmon attach to the taking of depositions that he engaged a; Hansard reporter on many occasions, contending that even i his spoken word was likely to be 1 misrepresented by counsel and twisted, to suit another aspect of [ . the matter. He on % 'more than one occasion stressed | the • .heed for x the taking of depositions and thek absolute import-^ ance qf .accuracy. ' These' times the deposition clerk m any court m New Zealand must find it extremely difficult to record.an accurate verbatim report of 'evidence'with the practice m vogue --o£.__permitting witnesses to murmur and whfsperHunrchecked. •," v J , But the most serious evil at present noticeable, m our judicial system concerns the practice of setting- down ca.ses for special hearing where tlua persons | concerned have sufficient social, and business standing to Obtain such a concession. , The \\ absence of public lists-makes it quite an easy matter for cases to be arranged at what may very truthfully be described as a private sitting before a magistrate or judge, even though the proceedings are heard m cither one or other of.the magistrate's courts.'^ j• . " N Quite obviously by arrangement, the magistrate or judge is induced to preside at either an exceptionally early hour m the\ morning or i late m the afternoon when' the precincts of the court"are deserted. This practice is unjust, and violates the very principles of justice. It is a s.tep towards the old star | chamber method of dispensing justice,' and even if such a practice was encouraged m the past by a member of ! the judiciary, who certainly should have known better, Inhere is no reasoriwhy it should continue. Happily there are not .a great number of these cases now, although once, they were more numerous. I Still the practice must be constantly discouraged, else our courts of justice are likely to earn themselves an unenviable reputation.