S.M. Wants To Be Heard In Appeal Case

Chronicle (Levin), 25 May 1949, Page 7

S.M. Wants To Be Heard In Appeal Case

-v AUCKLAND, May 24. An unusual case in which submissions were heard in the Supreme Court on behalf of a sentencing Magistrate, waa taken" before Mr. Justice Finlay when an appeal brought by Walter Preston, aged 65, agent (Mr. A. H. Johnstone, K.C., and Mr. B. Hart) was reopened. Preston had previously appealed against a sentence- of six weeks' inb Jirisonment imposed by Mr. J. H. Lux* ford, S.M., for bookmaking. . ; Mr. A. Moody represented the Magistrate and Mr. G. S. R. Meredith appeared for the Crown. Giving a summary of the appeal case, bis Honour said he understood -Mr. Johnstone had based his appeal in part on the submission that the Magistrate

imposed sentence on a wrong principle and in support of this submission had read'a newspaper report of what the Magistrate said at the original hearing. This had not been questioned by the Cfown and had been accepted as a correct statement. Immediately after the hearing of the appeal, his Honour said, he received a memorandum from the Magistrate in which the Magistrate emphasised his right to be heard under section 330 of the Justices of the Peace Act and dravving attention to the fact that he had not been notified of the appeal. His Honour added that it , was an immemorial praetice not to advise Magistrates. The Magistrate also said in his memorandum that in view of the fact that appellant 's counsel 's submission amounted to an allegation of impropcr judicial conduct on his part, he would ask for the appeal to be re-heard. After quoting legal authorities, his Honour said there was the objeetion of the Court in hearing Judges or Magistrates in support of their sentences and be thought it wrong for the Magistrate. to appear. He considered the Magistrate was on delicate grounds and although the canons of the law must be observed, it was the first time he had. ever heard of a Magistrate wanting 1o be heard in support of his own sentence. Mr. Johnstone said the Magistrate had taken the wrong view of his attitude toward him. He had not suggested and would not, that. the Magistrate was not impartial but he was not infallible. His Honour agreed that there was no

euggestion of Jack -' of -. impartiality in coupsel's subipiissions. For the Magis.trate, Mr. Moody said j the Magistrate felt that s'Ome attaek had been made '6n him. He agreed that it would be presump'tuous for a Magistrate to appear in support of a sentence but possibly the reports of the j case publi.shed in the Press had given i rise to the present position. Counsel handed in a report to the Court ' which the Magistrate said he had not been influenced by the referendum or public clamour or any finaneial circum- 1 sstances when sentencing Preston to . prison. His Honour: What the Magistrate now says is: 'Yes, I said all that (newspaper report) but although I said it, 1 was not influenped by it.' What does that mean exactly? Mr. Moody: The Magistrate probably.eleborated instead of sentencing him to imprisonment straight out. AU tliQugh. lie.mentioned' accused 's age and the referendum, he was not influenced by it. Mr.; Johnstone said there was no serious challenge against the case presented to his Honour and the Crown had not taken exception to the reading of the Magistrate 's statement in the Press. "Whatever a judicial officer says to an accused in sentencing him, is to teli accused why the sentence is being ira posed, " said his Honour. "The Magis trate now says what he said before but says he was not influenced by it. " He reserved his decision in the appeal.