UPLAND ROAD CASE

Dominion, Volume 11, Issue 240, 28 June 1918, Page 7

UPLAND ROAD CASE

. $ MOTION TO QUASH CONVICTION CASE DISMISSED In the Supremo Court in . Chamber* Into yesterday nl'teiToon, His Honour Mr. Justice Stringer heard two motion.-, filed on -behalf of Winifred Olson, who was conviete.l ami sentenced to twelve months' reformat ive treatment. A week ago Mr. Justice llosking granieu a rulo nisi, and Mr. Jl. I-'. O'Leary, who appeared lor Olsen, asked Unit liiis be dismissed, and then moved to have the conviction quashed, and also for a writ of habeas corpus. Mr. I'. S. J\. Maeassey, of tho Crown .Law Office, appear, ed to oppose the motions.

! Mr. O'Learv, in opening his case, said the grounds of the application were that Winifred Olsen was charged with one offence and convicted on another. She was charged with assisting in the management; of a house of ill-lame, and was convicted of the oiftneo of residing in a house of ill-fame, and was scntencea to twelve months' reformative treatment. Sho was not charged with residing in a house of ill-fame, and was not asked to plead on that charge. On principle and on authority an accused could not be charged witii one offence, and convicted of another. The accused had no opportunity of defending herself on the charge on which she was convicted. His Honour: -An affidavit filed showed that the Magistrate amended tho conviction. Mr. O'Learv: Has vour Honour read the affidavit of the Clerk of the Court? His flonour asked if counsel questioned the right of the Magistrate to iiio an amended conviction. Mr. o'l.eary: Yns, I do. lam prepared to learn of a case to the contrary. Continuing, counsel quoted the written judgment of Hie Magistrate and remarked that the Magistrate had -evi-' dentlv found Olsen guilty of residing in a'house of ill-fame and taking' part in its management, and to rectify this he had tiled an amended conviction. The court orderly, it was stated in an affidavit, entered up the original conviction of "assisting in a house of illfume." An hour later the MagUtrato (Mr. S. K. M'Carthy) consulted the book and altered the conviction to one of-"residing in a house of ill-fame," and to this ho appended his initials. The Magistrate had odiously altered the conviction recorded in the book to conform with his written judgment. Mr. Macassey: Tho judgment shows plainly enough that she was convicted on i-l.'o original charge. Mr. O'Learv: It is not clear on what charge she was convicted. His Honour: If unu information is laid and the evidence shows that another should be laid, then the accused should have another opportunity of answering the other charge if il is laid. Mr. O'Leary: On the iirst conviction filed, without anything further, I am entitled to succeed on this motion. My friend' has to show that the Magistrate has the power to filo an amended conviction. In replying, Mr. Macassey said the judgment'pronounced in open Court was the actual'conviction. It could not be altered after the end of the sittings of tho Court. Secondly, the judgment must be strictly construed according to its wording, and could not be construed according to inferences or intendments. Thirdly, the entry in the record book and the conviction when drawn up must agree with the judgment pronounced, .fourthly, the judgment pronounced is a conviction of Olsen on tho charge laid, namely, of assisting in the management of a iiouso of ill-lame. . fifthly, if it is not a conviction on the charge as laid it is a conviction of Olsen for two offences—first, of residing in a house of lU'-iame, and, secondly, in assisting in the management of tlio house, and the conviction could be amended by striking out tho olfenco of residing.

Air. Macassey quoted several cases in support of his contention. Continuing, he said that tho Magistrate opened his judgment; with a specific and definite charge that Olsen hud assisted in the management of the house. It was plain that the conviction was based on his opening remarks and his general judgment. The subsequent action of the Magistrate could not be held to prejudice that fact.

His Honour: He can filo an. amended conviction to carry out his original judgment, ton say that by analogy you can substitute a (rue conviction lor another conviction.

'Mr. Macussey: I say the Court here can amend Ihe judgment. Mr. O'Leary said the only matter he hud to meet was whether the Magistrate had power to substitute his second conviction for iiis first. If he could do this, then T.liat was tho end of the mutter, lie quoted tho Act relating to the procedure in such cases, showing I hat a Magistrate had power to correct an omission or rectify a uiistako in a _ conviction. ' The least that might' have been given in (he present case was an affidavit showing that euch omission or mistake had takon (place. Ho contended Unit on the affidavits filed there was neither an omission nor a mistake. Ho was surprised at the Crown substituting a conviction in this case, and at the Magistrate signing an ainonded conviction. The Magistrate in his own handwriting deliberately recorded tho amended conviction, and if this were to bo allowed what would be tho safety in recording a conviction? His Honour: I do not think you should make that suggestion. Mr. .O'Leary: I withdraw anything I have said winch may be. improper. All I. submit is that wo should havo some evidence of a mistake having been made. Mr. Macussey. The mistake is.apparent on the fage of the judgment. His Honour said that where a Magistrate had given judgment right at the conclusion of n case without writing it out, and had there been a mistake in convicting the accused ho would bo right iii correcting the mistake, Mr. O'Leary: But that would be a pure mistake. In tho present case tho judgment does not agree with the conviction. His Honour: With all due deference 1 consider the judgment does agree with the conviction. Tho Magistrate filed an amended conviction, and I must hold that he was correcting an error he made. Mr. O'Leary: We should have some evidence of tho mistake. His Honour: 1" assume without hesitation that tho Magistrate made an error and corrected it accordingly. Mr. O'Leary submitted that the Magistrate thought Ihcre was not sufficient evidence to convict Olsen of assisting in the management of the house, and so found her guilty of residing therein. The Court's Decision, His Honour said that on first appearances it seemed that an invalid conviction hud been made- against the woman inasmuch as sho was convicted ut' an oli'ence with which she was not charged, and that, of course, would be contrary to the elementary principles ut' law. The case now, however, had a different aspect. It appeared from the affidavits filed that 'the Magistrate had sufficient evidunce before him to justify him in his opinion and find the woman guilty of both residing on the premises and assisting in thu management. Tho written judgment was clear on the point. It would have made no difference in the punishment as to which conviction had teen recorded. When the Magistrate realised that a mistake had been mado he saw tV its 'alteration in the Court book. There was no doubt, lie considered ho had sufficient material before him to warrant this alteration: A Magistrate was entitled to make such an alteration if he had sufficient grounds for it. The Magistrate must be assumed to have these grounds. Without the least hesitation he would dismiss both motions. The general appeal would not be prejudiced in tho least by the dismissal of the motions. In view of Hie fact that tho original conviction was an incorrect one, ho would make no order for costs. Both motions were accordingly dismissed.