BENCH AND BAR

Timaru Herald, Volume CXXXVIII, Issue 19944, 31 October 1934, Page 12

BENCH AND BAR

A COLLECTION OF STORIES BARRISTER’S NOTEBOOK There was a certain counsel, long since gathered to his fathers, who thought he could defend his clients better when he was three sheets in the wind —not drunk, but as the policeman says, "Under the influence of drink." One day he was briefed to defend one Jones, and by lunch-time had become so muzzy that he went to sleep in the robing room. Waking up, he perceived his brief and had just enough sense left to know that he could not conduct the case that day. So he rolled into Court, interrupted whoever was speaking, and applied for the case not to be heard that afternoon, "as I have not yet been able to master my instructions." The judge, very politely, acceded to the request. Back to the robing room went learned counsel, and once more slept, once more woke up, and once more went into Court and applied that the case of R. v. Jones should not be taken that day. Third Time of Asking. A little more emphatically the judge said: "Very well —the case shall not be heard to-day.” “Thank you, my lord.” And once again he returned to the robing room, again went to sleep, again woke up and saw the nightmare brief of R. v. Jones, and, having no memory of anything at all, again butted in with his application to the judge. This time his lordship replied rather snappily: “The case will not be heard to-day. I have already told you that twice before." Learned counsel drew himself up to his full height, and replied with great impressiveness: “Indeed! But then your lordship spoke sho indishtinshctly,” and retired with a low and dignified bow, and the honours of war. Cross-examination, the deadliest weapon of the advocate, has altered in character a great deal within the last thirty or forty years. The style adopted by advocates of a century or more ago started to become unfashionable in about the 1860’s. You cannot Imagine any barrister being allowed to crossexamine an informer as the great Erskine once did, prefacing every question with: "Pray, Mr Spy, tell me ”

Even the severity of the Charles Russell style has rather gone out. That eminent advocate once terrified a witness so much that the poor fellow dropped dead In \the box; though it is fair to Russell to say that the man was undoubtedly a descendant of Ananias. Sir Edward Marshall Hall was a very determined advocate, whom no judge could ever suppress, and I am convinced he often picked a quarrel with the Bench so as to make the jury believe he was being unfairly treated and his client no. being given a fair trial. But he was really very cool and calculating. In one case—a murder trial—the crucial point had arrived; the prosecution had put into the box a witness who was expected to destroy the case for the defence. Just as he had uttered the first damaging piece of evidence, Marshall Hall suddenly broke in: “My lord, there is a most uncomfortable draught from that window —may it be closed?” What could the courteous judge do but say: "Certainly, Sir Edward,” and order an attendant to shut the window; and by the time that was done, with the usual confusion, the effect of the witness’s testimony was whittled away to nothing. "Most Improper M’Lord.” I remember a judge who threatened to commit the Almighty to prison. It was at the Leeds Assizes, and Samuel Danks Waddy, a master of emotional rhetoric, was speaking for the woman in a breach of promise action. Just as he completed a sentence denouncing the heartless conduct of the defendant, a storm broke, and a terrific peal of thunder burst over the building. The judge was Mr Justice Field, who was very deaf, and he looked up at the gallery, shook an admonitory finger, and. said, sternly: "I know who made that noise! If he does it again I shall commit him to prison.” And Waddy’s observation, “Most improper m’lord,” I always thought to be one of the brightest examples of the equivoke. Field was a very good and very patient judge. All judges were not. Mr Justice Ridley, for instance, used sometimes to make up his mind after having heard only part of one side of the case, and forthwith proceed to harass counsel on the other side. Once Mr Waugh (after K.C. and leader of circuit) was defending a prisoner before the learned judge, and long before any defence could be advanced, Ridley J. decided in his own mind the prisoner was guilty, and that any further time spent on the case would be wasted. So he called out: “Mr Waugh, what is your defence?” Waugh proceeded to explain, when the judge interrupted him with, “I don’t want all that rigmarole! Tell me in two words.” “Certainly,” replied Waugh. “Our defence is ‘Not Guilty.’ ” Some judges are slow and deliberate; others so rapid in their mental processes that they get a long way ahead of the case, and decide, as it were, by leaps and bounds. The late Mr Justice Wright was -uch a one, and It is said that one day, about two o’clock, Lord Justice Bowen discovered him lunching at the Athenaeum Club. "Hello, Wright! What are you doing here at this time of the day?” he demanded. “Oh! I’ve finished my list—tried four cases this morning.” “Don’t you think,” Bowen suggested, “that you’d better go back and hear the other side?” It was Bowen who, when the judges were composing an address to Q :een Victoria, and one of them submitted a draft beginning “Conscious as we are of our defects,” suggested as an amendment “Conscious as we are of one another’s defects.” His subtle witticisms gained much in point because he always looked so very tired, and spoke as if he were really too exhausted to talk at all. The finest defender I ever knew was the late Charles Mellor. How many murderers he defended I really do not know. I do know that he had defended a hundred long before he retired. Dozens of criminals, great and small, owed their liberty to him; but you can no more describe how he did it than you can describe how Kreisler plays the violin. A fine presence and a beautiful voice may have contributed to his success; but he was not a great cross-examiner, and when he addressed the jury he only finished about one sentence in every three. At any rate, he was not long-winded, for he ri.rely spoke for more than twenty minutes. Yet his success was phenomenal. When I was very young I asked him how he did it; and he replied: “When you are defending, don’t worry about the fools, because nine times out of ten they are against you.” I well recollect his defence of a

woman bankrupt who was accused of having fraudulently spirited away her furniture to a remote cottage, so as to keep it out of the hands of her creditors. The first line of defence was trmt she hadn t removed the good* all. The second line was that had removed them because she had (riven a U , of . salp on them. The third ltoe wm that she was protecting her children— I „ do w°, t , quite know how. And last of all, Mellor picked up a huge volume from the table and held it up before the jury, exclaiming: “Everybody is supposed to know the law. This is the Bankruptcy law, which this lady is supposed to know! ” and he dropped it on the table with a thud. After the woman's acquittal I pointed out that these defences were, to say !i^u e M t ’o SOmewhat “consistent, to which Mellor replied that there were ™ “ en °h the jury, and some might like one defence and some another. Lord Atkin once told MeUor that he was a danger to the community. One of my own early cases was the defence of a man charged with stealing a pair of boots. The man was acquitted, and I dare say I showed my joy at my success, for Frank Lockwood said to me: “So you think it was your cleverness that did it Now I once defended a fellow at Pontefract Sessions, and got him off. After the case was over I told the man to let this be a warning to him. ‘I don't suppose,’ said I, ‘that I would get you ofi again.’ He replied: ‘No, Mister Lockwood, I don’t think you could; but the foreman of the jury was mv brother-in-law.’ ” I felt duly chastened in spirit. My friend, Roland Burrows, has a theory that all great advocates have pleasing voices. There is a good deal in this theory. When one remembers the great Charles RusseU, Edward Clarke, Frank Lockwood, and other successful men of the forum, they all had most pleasing voices. So. to name a few still living and working in one way and another, have Jowett, Hastings, Birkett, and Stuart Bevan. I would be ready to admit that the barristers of old were not, during their leisure hours, always teetotalers. How they contrived to conduct their cases so well, and to argue law so acutely after their carouses the night before, I do not know.