ASTOUNDING DECISION OF MAGISTRATE

NZ Truth, Issue 1181, 19 July 1928, Page 3

ASTOUNDING DECISION OF MAGISTRATE

Ex-Solicitor, Serving Gaol Sentence, Denied Opportunity of Giving Evidence

HUSBAND THE VICTIM OF GLARING INJUSTICE

(From "N.Z. Truth's" Special Auckland Representative.)

"Let justice be done though the heavens should fall." The heavens did not fall upon Magistrate W. Meldrum, of Hokitika, but there fell upon him instead the caustic lash of a learned Judge's tongue: "In my Judgment the order made by the magistrate is, m the words of Lord Chief Justice Thesiger, 'contrary to the general law of the land . . . and also so vicious % as to violate the fundamental principles of justice.'"

MAGISTRATE MELDRUM considered justice had been done when, on the ex-parte statement of a wife, Mary Ellen Woodley, he granted her separation from her husband, guardianship of her children and maintenance, without hearing any evidence from the husband, John Charles Woodley, ex-solicitor, serving a term of imprisonment m Mount Eden gaol; andi m addition, denying him the right of a re-hearing. . The matter came before Judge MacGregor on an appeal against the magistrate's judgment, the wife and S.M. Meldrum being cited as defendants. As an example of justice, dispensed from a magisterial bench, the facts placed before his honor must surely come within the category of the extraordinary, Mary Ellen Woodley sought separation and maintenance from her husband on the grounds of persistent cruelty and his failure adequately to maintain her. At the time of the application, John Charles Woodley, who was then, and still is, serving a term of imprisonment for embezzlement of trust funds as a solicitor of Auckland, endeavored to obtain permission to go to Hokitika and defend the action. Request Refused When the visiting justice, Magistrate McKean, visited the prison, Woodley sought his advice m the matter. , The Prisons Department found it impracticable to allow the prisoner to proceed to Hokitika and it was tnerefore suggested by Magistrate McKean that, Woodley instruct his counsel to upply for an adjournment, so that his evidence, and the evidence of others, could be taken m Auckland. This was accordingly done, but to the surprise of prisoner's counsel, Lawyer Marshall White, the adjournment was refused. ' Woodley's counsel then received written advice from the clei'k of the Magistrate's Court at Hokitika that an order had been made granting Mary Woodley separation, guardianship and maintenance. He promptly replied expressing" 1 his surprise at the magistrate's action m ignoring the application made by Woodley to have his evidence taken m Auckland, stating that he had never heard oi; a^ similar refusal before. It was pointed out that Woodley had been unabl© -to attend the court because he was a prisoner at Mount Eden, but it had been fully expected that his application would be granted. Lawyer White mentioned the circumstances of Magistrates MeKean's visit to Mount Eden and the advice given to Woodley, which l!lllllllllll!!l!llllllil!illllllll!lllllllll!lllll!l!l!lllllll!ll!lllllll!lllllillllllll!lllllllllll!ll

had been subsequently confirmed by the visiting justice. This letter contained an application for a re-hearing of the proceedings. ', It was suggested that perhaps the magistrate, m dealing with the case, had overlooked the husband's application that his evidence be : taken m Auckland. Lawyer White followed up this communication with another, enclosing a letter from Magistrate McKean which he asked should be placed before Magistrate Meldrum. The following extract from Magistrate McKean's letter to Lawyer White makes clear the advice he gave Woodley: "I told Woodley that he should instruct you to make the necessary application to have his evidence taken at Auckland. "He seemed to think the application might not be granted, but I assured him that no magistrate would, under the circumstances, hear the proceedings without giving him an opportunity of being heard." The letter continues: "It may be that a magistrate has discretionary powers In dealing with an application under the Destitute Persons Act, but it certainly did not occur to me that any magistrate would refuse an application made by anyone m Woodley's position. ' • "I pointed out to Woodley that there could be no possible urgency for either separation or guardianship, and that a maintenance order could not have immediate effect. "I trust the fact that Woodley was relying upon an assurance given by me will he sufficient to enable you to obtain a re-hearing. ..." Subsequent events proved that the assurance of which Magistrate McKean

of thus being heard, however, he chose to act on . the ex-parte statements of Mrs. Woodley and her witnesses alone. "He effectively prevented plaintiff from being heard on a matter which vitally affected, not only his pocket; but the future life of himself and his family. "How stands the law on this subject?" asked his honor. "It is clear that a man cannot incur the loss of liberty or property for an offence, by judicial proceedings, until he has had a fair opportunity of answering the charges against him, unless, Indeed, the legislature has expressedly or impliedly given authority to act without that necessary preliminary. "It is laid down by Lord Hewart, C.J., that 'a long line of cases shows that it is not merely of some importance, but it is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' v "In the present proceedings, accordingly, the broad question to be determined is: Did Woodley have a fair opportunity of answering the charges against him — did he have justice done to him? "In my judgment, and from the affidavit'filed, it appears to me that WoodAppeal Allowed ley was unjustly treated, In that he did not have an opportunity of answering the charges against him." Quoting the Destitute Persons Act, his honor continued: "'A magistrate hearing the complaint, on being satisfied of. the truth thereof, may, if he thinks fit, having regard to all the circumstances of the case, make an order against the husband m term's of the Statute. 1 "It Is difficult to see how the magistrate can be satisfied of the truth of such a complaint until he has heard the evidence of the husband and his witnesses, if any. "It is equally difficult to imagine how any magistrate can have regard to all the circumstances of the case, unless, and until, he has had before him the version of these circumstances according to the husband, as well as that given by the wife." Judge MacGregor concluded with the words of Lord Chief Justice Thesiger already quoted, adding: "It seems to me, accordingly, that the defendant must be prohibited from acting, or taking any' further steps, upon the order m question." The appeal was allowed with costs against both defendants. illllllllllllllllllllllllllllllllllllllllllllllUllilllllllllllUllllllllllllllllllllllllllllllUlllllll