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DECLINED TO GIVE ORDER FOR INDICTMENT OF PILOT MACKEY

Mr. Justice Russel Yesterday Dismissed Crown Prosecutor's Application and Discharged Grand Jurymen
Commander Wyatt To Be Tried on Wednesday Next.

At the criminal trial sittings of Supreme Court yesterday Mr. Justice Russell declined to grant a motion of Crown Prosecutor Cluney for an order to prefer an indictment against Pilot Frank Mackey on a charge of manslaughter in connection with the Dec. 6th explosion and the Mackey case has thus apparently become a finality, the Grand Jury having been discharged for the term. The Commander Wyatt case is to come on for trial on Wednesday next.

Could Go Before Jury.

When the court opened yesterday, in answer to a question of Crown Prosecutor Cluney, as to whether his lordship was ready to give judgement in the Pilot Mackey matter Mr. Justice Russell said that he would negative the motion of Mr. O'Hearn, K.C., for the present and under existing conditions the matter could go before the Grand Jury and have situation such that leave to appeal on a motion to quash would be open.
Mr. Cluney said he was moving under right given by statute for an order for leave to prefer an indictment.
Mr O'Hearn - "It is understood the Attorney General has not consented."
Mr. Cluney - "I am applying for an order to allow me as Crown Officer to prefer an indictment."

Must Now Refuse.

His lordship Mr. Justice Russell addressing the Grand Jury said he had come prepared to charge the Grand Jury in the case but he now found himself called upon instead to give reasons for refusing the order asked for on Thursday last. he referred to the fact that this case had already come before him on a writ of habeas corpus under which he had discharged the prisoner because in his opinion there was no evidence of criminal negligence to justify his retention under the magistrate's commitment. At the same time he had intimated that nothing he could do would interfere with the power of the Attorney-General to prefer an indictment if, in his opinion, the interests of justice called for such a proceeding. Instead of adopting this very plain and simple course the Crown Officer had seen fit to apply to the Supreme Court in banco to set aside the order for the release of the prisoner. The application so made was absolutely without precedent in such as case. If it had been acceded to, it would have practically nullified the benign provisions of the Habeas Corpus Act.
It was well known that it had been the practice until quite recently in this province for a prisoner to go from one judge to another after successive refusals to release him, until he found a judge who considered him entitled to his freedom By a recent amendment, that course was no longer open to him. But if the judge first applied to refused to release him, he could appeal to the full court and secure his release if in the opinion of the court he was entitled to such relief. If the judge first applied to saw fit to release him, there was no appeal from such a decision. in favor of the liberty of the subject the order of the judge releasing the prisoner had been made a finality. The application to the Court in banco in this case was, therefore, an attempt by a side wind to secure a review by the full court of a decision in the prisoner's favor from which it had been purposely designed that there should be no appeal allowed. He was not surprised that the court had refused the application. His only surprise was that it should ever have been suggested to the Crown Officer to make such an application

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HALIFAX DISASTER RECORD OFFICE
ARCHIBALD MACMECHAN, F.R.S.C.
DIRECTOR
HALIFAX, N.S.
April 18, 1918.

JOURNAL

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PUBLIC ARCHIVES OF NOVA SCOTIA
HALIFAX

MG 1 volume 2124 number 102