ARREST ON MONTEREY

Wanganui Chronicle, Volume 83, Issue 257, 31 October 1939, Page 8

ARREST ON MONTEREY

CUSTODY OF A CHILD

CASE NOT PROCEEDED WITH

[ Per Press Association.] AUCKLAND, Oct. 30. Following an announcement by the police that they did not intend to proceed with the case, a young married woman from Melbourne, Alison Claic Whitaker, aged 31, who was arrested on the Monterey on October 16 when the ship arrived from Australia, was discharged when she appeared on remand before Mr. Orr Walker, S.M., in the Police Court this afternoon. She was charged with unlawfully taking an unmarried girl under 16 out or possession and against the will of her parent and guardian and the person having lawful care and charge of her. Detective-Sergeant McHugh represented the police, and Mr. A. H. Johnstone, K.C., and Mr. T. Henry, appeared for accused. Senior-Detcciive A. Wightman, of Melbourne, gave evidence that he had received cabled insti uctions from the Commissioner of Police in Melbourne stating that no further action was to be taken in the matter. On reading the cablegram produced, the magistrate said it informed tht Court that informant did not intend to offer evidence. Detective-Sergeant. McHugh: In the face of that i do not intend to call evidence and do not intend to proceed further. Mr. Johnstone submitted that in the circumstances the magistrate should discharge accused absolutely and not merely dismiss the case against her at this stage tor want of prosecution. “The facts show that the application for the return of accused was not made in good faith and in the interests of .justice,” said Mr. Johnstone, The information before the Court showed that the prosecution was a private prosecution commenced in Melbourne' by accused’s husband. Prom that it could be inferred that the police did not regard the case as a police case. Informant and accused had two children, a boy and a girl, Mr. Johnstone continued. The marriage was unhappy and hut April the husband and wife decided to part. There was no reason to believe that the wife; or husband for that matter, were other than fond of the children. Accused had decided to go to California to live with her sister and thought the boy could well be cared for in Melbourne by her husband. On the other hand, she considered the girl required her own supervision and care and decided to take her with her. “She may have exceeded her rights in doing so, but after al! she was the mother of the child and felt it her duty to look after her," Mr. Johnstone added. U*e of Warrant Attacked. Accused obtained a passage for herself and her daughter in me Monterey, which arrived at Auckland on October >5. Shortly after her arrival .-i.e was aire.-ted on a provisional ■.wii rant and iiau since appeared in me Court tiiice times on wairant ana hau been remanded each time, ibis was not a criminal case and the Court was not interested in the custody of the child. Mr. Joh.istone said the only reasc-n for a warrant was to further the end oi criminal justice, but it was now perfectly plain that this warrant was not sought for this purpose at ail, out with the object of detaining accused m Auckland long enough to enable the husband to recover the child. ‘ We say that ad - , isedly, because she was tola on arrival by someone in au.hor.ty—not the police—that she was free to go on as long as she left I. "However, she deciaeu nut to do that and remained in Auckland. Last Wednesday the husband arrived in Auckland | and left the next day with the child.” Counsel continued that his object was fulfilled anti all his interest in the prosecution ceased. "The very next day v.v received a letter from his solicitor offering to help the mother in every way possible,” Mr. Johnstone added. "Then we received a cablegram frem Melbourne asking if wc would consent to withdrawal of the procc-dings. In our submission there nas been a grave abuse of the procedure provider! under the Fugitive Offenders Act of 1861. We are certain that if Your Worship had known the full facts the provisional warrant would not have been issued.” Mr. Johnstone contended that Llk prosecution must have known that no jury would have convicted accused, ihe p. ( iiccutmn was not made in good faith and it was asked that accused be discharged absolute I y. In referring to Mr. Johnstone’s kd micni that accused had been told she could proceed freely if she left the child. D clecthe-Scrg ’ant McHugh stressed that no representative of the New Zealand or Australian police had been responsible tor this. The magistrate said that in view of the circumstances, he would not make an order sending accused back to Australia. The husband’s object was not to punish his wife but to obtain custody of the child, which he would have lost absolutely if she had gone to America. On the other hand, it was a question what else the husband could have done to get the child if he had not taken this step. The magistrate in Melbourne would not have issued th * original warrant if it had not been for that. Again, having regard to the circumstances. Mi. Orr Walker said, he would not have issued the extradition order. In any case, he now proposed to discharge accused from the proceedings. "I gather she proposes to return to Melbourne.” the magistrate said. Mr. Johnstone: She is returning today. The magistrate: And steps will be taken to tnrash out the matter there? Mr. Johnstone: Yes. She is as fond of the child as she ever was.