“UNCONSCIOUS BIAS.”

Otago Witness, Issue 3772, 29 June 1926, Page 24

“UNCONSCIOUS BIAS.”

POSITION OF MAGISTRATE. ASKED TO VACATE BENCH. AUCKLAND, June 25. One of the greatest sensations caused in a Police Court occurred to-day, when Mr R. A. Singer, who was appearing for a woman charged with assaulting John Henry Hannan, asked Mr J. W. Poynton. S.M., to vacate the bench and let one of the other three Auckland magistrates take the case. “There are two applications I desire to make, and the first I make with the utmost reluctancy,” said Mr Singer, in opening. “Anyone who knows me knows that I am the last person practising in Auckland who would in any respect desire to try to cast slur upon the bench. I feel that I would not be doing my duty to my client if I did not make this request. I ask your Worship seriously and earnestly, not to hear this charge. Perhaps I might say that in consequence of a few remarks passed by your Worship on this matter —trivial, no doubt —it seems that your Worship has some leaning —I will not say to what side.” The Magistrate: I have no leaning towards anyone. I simply told you before that the case would not be taken before 12 o’clock. Continuing, Mr Singer said that he appealed to the magistrate not to take the case. If reasons were wanted counsel would be reluctantly compelled to give them in the open court. The Bench: You had better give them. l f you have any charge to make, make it. Mr Singer: I have no charge. The Bench: If you are guessing, I will be biased. Make it. Mr Singer: I have not said so. I have the feeling that in your judicial position you may be what might be called biased. The Bench: If I am biased before a case is heard, I am unfit to be a magistrate. Mr Singer: I refute that. What I mean is that every person, however judicial, must necessarily be a mere human being, not an automaton, and will be influenced by friendships and associations. Mr Poynton was about to make some reference to the allegations that had been made about Sir Robert Stout, when Mr Singer interrupted by saying that if the bench got on to the subject of Sir Robert, counsel would keep him there all day. Referring to another former judge, counsel said New Zealand had suffered from one of the most unjust judges, with the possible exception of Jeffreys, that ever sat upon an English bench, so much so that the majority of the members of the Bar ol Auckland not only assented to a / request, but signed their names to a petition saying that the judge was a menace to the administration of justice. “I am informed that your Worship is a personal friend of the informant,” continued Mr Singer. The Bench: I am. It will come to this, that a magistrate will not be able to have friends, and will be locked up in a monastery, and led forth when he is wanted. Mr Singer drew the magistrate’s attention to the fact that the members of the Supreme Court Bench had not taken cases when they had, for instance been shareholders in concerns whose cases were to be heard. “I do not know',” said Mr Singer, “whether your Worship knows that you may be unconsciously biased.” The Bench: I do not know of any case where a magistrate or a judge has been asked not to take a case because he is a friend of the litigants. I do not know whether you are suggesting that I have been bribed.

Mr Singer (hurriedly): I don’t think for one moment that Mr Hannan would be so generous as to offer a bribe. — (Laughter.) Counsel said that he regretted that he had to bring the matter up before the public press and the Bar, but he felt he was doing his duty to his client. Counsel again earnestly asked the magistrate not to hear the case as he was a personal friend of the informant. There are four magistrates in this court, three of whom he should say did not know Hannan personally. He would suggest that another magistrate should hear the charge now pending, was absurd. The Bench. I regret that I cannot agree. The Magistrate said it was absurd to say that a man could select his own magistrates and judges. If a case involved money transactions it would be different, but to say that because he was just friendly with Hannan he should not hear the case was absurd. Mr Singer said that he did not suggest that the magistrate was biased, but there was a reasonable danger that he might be unconsciously biased. He was not suggesting that Hannan had contributed eighteenpence to his Worship. The Bench challenged counsel to give him one single instance where a magistrate had not taken a case for the reasons put forward. Mr Singer: I cannot offhand. Your Worship cares nothing for the traditions. The Bench (excitedly): No, I dont. I Mr Singer: Then I do not wish to argue further with you—you have condemned yourself out of your own mouth. In his next remarks the magistrate referred to Mr Singer’s remarks as impertirent. Counsel said it was the first suggestion of that which had been made. His Worship: You have mentioned it at the first. Mr Singer asked if it wore suggested that because Mr Poynton did not sit on the bench Hannon would not get justice? Hannan (interjecting): I don’t get it. Mr Singer: You do not deserve it. Counsel said that Hannan would get such justice aa he . deserved, and the bench remarked that it was a great danger that litigants should select their own judges. After further discussion Mr Singer said that he was sure the bench would withdraw the suggestion of impertinence. The Bench said that ho had always found counsel a model pleader. Mr J. J. Sullivan, who appeared for Hannan against Margaret Denyer, the defendant, said that he was extremely pleased that the matter had been brought up. Counsel said he had suffered persecution m the court, not in the room in which he stood, but by another magistrate. Mr Singer said that counsel had no right to refer to personal matters, and the benoh agreed.

Mr Sullivan, on behalf of Hannan, said that he would relieve his Worship of the case if he did not want to take it. The Bench said that he did not want to take any case, but instructed that the action proceed. Evidence was then heard, and he convicted defendant of assaulting Hannan, and, at the request of Mr Singer, made the fine £5 Is, to allow of an appeal.