New Trial In Case Against M.O.W. Employees

Press, Volume C, Issue 29514, 16 May 1961, Page 23

New Trial In Case Against M.O.W. Employees

(New Zealand Press Association)

WELLINGTON, May 15. In a reserved judgment delivered this morning, the Court of Appeal ordered a new trial in the ease between the Queen and Claude Lanham, of Wellington, a grader driver, and John Edward Gilmore, of Wellington, an overseer. It quashed certain of the convictions in the case between the Queen and John Edward Gilmore, and reduced the appellant's sentence. In a Supreme Court trial, the two appellants were charged with 10 counts of procuring a thing capable of being stolen, namely, sums of money, to be paid to F. and J. Bognuda, Ltd., by the New Zealand Government. It was alleged that both appellants had falsified dockets which represented that certain machines, paid for on an hourly basis, had worked for more hours than, in fact, they had. The appellants were convicted on six counts each, the jury making a strong recommendation for mercy for Lanham. Lanham was fined £25 on each of three charges, and was convicted and discharged on the remaining three. Gilmore was sentenced to a total of six months’ imprisonment. In a second trial, the appellant Gilmore was jointly charged with another operator on 32 similar counts. The operator was acquitted on all counts, but Gilmore was convicted on 30. Gilmore was then sentenced to a further six months’ imprisonment. Further Evidence In the Court of Appeal, the appellants asked for an order that further evidence be adduced in the Court of Appeal upon the ground that a witness in the first trial had, in a later “Ministry of Works” trial, materially contradicted his earlier evidence. The Crown Prosecutor, Mr W. R. Birks, sought leave of the Court of Appeal to amend the convictions in the second trial. In delivering the judgment of the Court of Appeal. Mr Justice Cleary said that counsel for Gilmore's point was that if it were known to Gilmore's superior officer that a substitution had taken nlace. then it gave colour to Gilmore’s claim that he had no intention to defraud fn adopting a similar procedure on other occasions. Gilmore’s defence had been that his reason for certifying false documents was in order to compensate F. and J. Bognuda. Ltd., for the use of certain other machines belonging to that firm which Gilmore said he had used, although he had not obtained authority from his depart-

mental superiors for their use. "It is sufficient that when the witness appears to have admitted knowledge of irregularities when giving evidence in the Gilmore-Ben-nitt trial, he has gone much further than in his evidence in the Gilmore-Lanham trial,” the judgment continued. New Trial “In England, where a new trial cannot be ordered, it may became necessary for the Court itself to hear the witness, but we have the power to order a new trial and we think that, in the exceptional circumstances of this case, enough has been shown to warrant us in following that course, without ourselves first hearing the witness concerned—for this would involve further delay in disposing of an appeal in which the hearing has already been protracted,” the judgment said. “It seems to follow, in view of the nature of the defence advanced by Gilmore and Lanham respectively. that the new trial should be of both appellants. “There still remains for consideration the appeal by Gilmore in respect of his convictions in the second trial. This rests solely on a point of law, and the alleged inconsistencies in the witnesses’ evidence complained of in the earlier appeals had no relevance to this trial. "It is quite clear from the evidence that what the Government delivered to F and J. Bognuda, Ltd., was a series of cheques, and not the sums of money referred to in the counts. It appears to us that the amendment sought by the Crown is one which might be properly made in order to make the indictment conformable with the proof, and the only ques-

tion is whether .the appellant has been misled or prejudiced in his defence at his trial. Evidence Reviewed "We have reviewed the evidence, and are unable to see that the variance between the counts and the proof occasioned any prejudice to the appellant. It may be that the appellant was deprived of the opportunity of contending that he could not, under different counts, be convicted of procuring the same cheque to be delivered. This being so, we think the proper course to take is to amend those counts on which the appellant has been convicted where separate cheoues were shown to have been delivered, but to q’uash the convictions on , those counts where no separate cheques were shown to have been delivered,” said the judgment.

All but seven of the counts were quashed accordingly, and verdicts of acquittal directed to be entered. The quashing of one of the counts resulted in a reduction of Gilmore’s total sentence from six months' to four months’ imprisonment. “The convictions of Gilmore and Lanham on the counts in the indictment on which they were jointly tried are quashed, and we order a new trial of both appellants. In view of what we have said, the Crown will no doubt apply to the Supreme Court to have the counts in this indictment amended., in the same way as we have amended the counts in the Gilmore-Waterson indictment,” the Court of Appeal’s judgment said. Counsel at Hearing Counsel who appeared at the hearing were Mr W. R. Birks, for the Crown; Mr M. O’Brien, for Gilmore; and Mr L. G. Ro=e, for Lanham. The Court of Appeal, which heard and allowed these appeals, comprised the president, Mr Justice K. M. Gresson, Mr Justice North, and Mr Justice Cleary.