The Press TUESDAY, JUNE 28, 1966. The John Harrison Fund

Press, Volume CVI, Issue 31097, 28 June 1966, Page 16

The Press TUESDAY, JUNE 28, 1966. The John Harrison Fund

Last week four young men needed help on Mount Rolleston and, although unavailing, it was forthcoming. No special plea was needed to bring mountaineers to their aid from near and far; and while hope of rescue remained they spared no effort, even as the hazards of the attempt grew. Mr John Harrison, who died under an avalanche, was among the rescuers because he knew that his abilities as a climber might improve the chances of rescue. Like his many colleagues, he accepted a challenge as a duty to do his best to save the men who shared his sense of adventure though perhaps neither his knowledge of nor skill in mountaineering. The tragic outcome leaves his mountaineering friends, and, surely, the rest of the community, with another kind of challenge—a call to do something for his family that he cannot now do himself. This is, indeed, a community duty; for Mr Harrison was one of its voluntary agents, attempting a task on its behalf that was within the capability of only a few. Had the rescue mission been successful and had John Harrison not perished, the community would yet have owed the rescuers a debt. Now, in spite of failure, the debt is much greater. The John Harrison Memorial Fund, generously supported as it is likely to be, will only partly discharge that debt The gift from a North Island Rotary club already shows how the duty has been accepted as a national responsibility to repair as much as possible a private loss incurred among men who were the executors of public conscience. Help is again needed: and again it should be forthcoming, for the Mount Rolleston tragedy is not ended. Bill For Less Justice The law in New Zealand and in England ensures that a person shall be tried only once on a criminal charge and, on conviction, shall be sentenced only once unless, of his own choice, he appeals to a higher court. An amendment to the Crimes Act introduced to Parliament recently proposes that if the Crown is not satisfied with the sentence imposed by a judge it may appeal against his decision. This is bad in principle; and the apparent reason for the change is bad: public protests over particular sentences. The amendment would permit social and political pressure to be brought on the Court of Appeal to increase sentences which public opinion might consider inadequate. Judges consider all the available information about the offence and the offender. They impose sentences with due regard to punishment, reformation, deterrent effect, and the protection of the public. They are not the agents of community reprisal. The community may form and change its attitudes to crime; but it is not fully informed on any particular offence or on the character or the extent of the guilt of an offender. Public opinion on the seriousness of crimes is properly expressed in Parliament, which fixes maximum sentences. Parliament may change the maximum sentences; and Parliament, prosecutors, the police, and the public all have means of urging that, in general, a more serious or a more lenient view should be taken of certain classes of crimes. After a sentence has been imposed it is wrong for the State to interfere. A judge’s prime concern is to see that justice is done; and it is a principle of justice that an accused person has the benefit of any reasonable doubt. If a judge is in doubt about the severity of a sentence he is likely to err on the side of leniency—and of fairness to the accused. Attempts by the Crown to seek an additional penalty to appease a dissatisfied community would express a lack of confidence in the judiciary which the Crown itself has appointed.

The question, briefly debated in Parliament, of whether the Attorney-General or the Solicitor-General should appeal is an unimportant aside to the fundamental principle of obtaining justice for the offender. If the right of appeal were vested in the Attorney-General it would, by virtue of the Acts Interpretation Act, be equally vested in the SolicitorGeneral. If it were vested in the Solicitor-General—as proposed in the amending bill—he would act on the instruction of the Attorney-General or, through him, on the motion of the Executive Council and Parliament. The bill further proposes that unheard appeals by the Crown shall lapse upon the completion of an original sentence of imprisonment. This would mean that, providing an appeal had been lodged, the prisoner would be in jeopardy of having his sentence extended at any time until his release. The Minister of Justice (Mr Hanan) has himself expressed misgivings about the effect on prisoners of the indeterminate sentence of preventive detention. The amendment is open to the further objection that the defendant must, at his own cost, defend appeals by the Crown, even unsuccessful appeals for the extension of his sentence. No exception is made to the nile that the Court of Appeal shall not award costs except in appeals on matters arising before trial. The bill contains two other sections which give cause for concern. There has been no widespread demand for judges to have the right to comment op the failure of an accused person to give sworn evidence, as the bill proposes. An accused person should be entitled to remain silent if he so elects. The prosecution is required to prove his guilt. The defendant is not required to prove his innocence. The bill interferes with the burden of proof in that it permits a judge to draw adverse attention to the fact that a defendant has not given sworn and crossexamined evidence on his behaviour. Many good reasons other than the risk of betraying guilt may influence an accused person against exposing himself to cross-examination. The bill prescribes a written warning that adverse comment may be made on failure to give evidence. This would be supplied to the accused who is not represented by counsel. It amounts to a threat which might induce the innocent defendant to make an unwise appearance in the witness box. The criminal familiar with court proceedings and adept at dealing with cross-examination might convince a jury that his guilt is open to doubt An innocent person, confused by cross-examination, might leave doubt about the innocence which he is not, in any event, required to prove. The bill also proposes the removal of the right of the accused to make an unsworn statement to the court. Such statements are rare and, because their importance is patently less than that of sworn evidence, they may seldom be of much value to the defendant. It is, nevertheless, wrong to withdraw from the accused the right to speak on his own behalf. He is the person on trial; and if he believes that he can best defend himself by making a statement, without fear of cross-examination or perjury but without the weight of the oath, he should not be silenced..