HABEAS CORPUS ACTON

Hawke's Bay Herald-Tribune, Issue 180, 17 August 1937, Page 3

HABEAS CORPUS ACTON

-Press Association.)

Release of Prisoher Sought By Counsel MGISTRATE'S SENTENCE

(By Telejrranh-

]NVERCARGIIi?Last Nighf. In. tlie Supreino Courfc to-day/Mr.^ G.~ •J. Reed applxed to Mr.' JiLsticefKeixnedy for a, writ of habeas corpus f or . tlio Irelease of Eric Clarence Taylor, gafage proprietor, of Invercargill, who was •convicted by Mr. W. H. Freeman, S.M., on Wednesday and sentenced to 14 'days' imprisonment on a, charge pfjnegligcntly driving a car. ] • The grounds of the application were: j(l) That the ' warrant - nnder t which j jTaylor is dctained . is • made mthout •jurisdiction; (2)' "that . the Magistrato improperly took judicial notice of f acts * meither given in c vid en c e ; nord)f rwkieh |by law ho was entitl'ed tr fakeTjudicial Inotice; (3) that a' listfof previous conjvictions was improperly .hand'edfto' the (Magistrate previous to his having iintimated whether ho intended,to conivict or discharge prisoner*j7(4) that the I'proccedings were^ whoily'irregular. N. j In his affidavit^William.Hehry^Ereeiinan, S.M./ said' that he had read the iafddavit . of Taylor. and the contents Jwere substantially correct s subject to jthc qualification that the list of convictions xeferred to was handed to him (Hftcr he had' asked Taylor • qucstions ielating.To his previous convictions in Invercargill and Dunedin, On .the evidence, ho considered the charge ' had jbeen proved and he' accordingly conjvicted defendant and sentenCed him to jl-t days' imprisonment. . Mr. Beed . said there .was 110 Idispute ' j»s to the facts and he now applied ito Ithe Supreme Courf for a wrif of habeas. icorpus on the grounds .that the Magisjtrate took judicial notice of facts in Irespect of which was not in a posiition to take judicial jiotice* His Honour: Do you suggesf- thejMagistrate had no right to - ask - y opi; jclient, when he was in the "box,- quesjtions regarding his previous convic-i jtions? . " Counsel replied that he admitted the iMagistrate was entitled to ask "any question. "But proceeding from that, ;do the facts in this case show that the 'Magistrate in asking the questions eo • jprejudged the case as to prohibit his •acting judicially iti "this" part'icular ;matter ? ' > said MyKeed. ' Mr. Eeed: The Magistrate apparently jhad in mind a newspaper report of the. jcase in Dunedin.' TJp to that timo no jevidence had been given in the Court jof any such case, so by. implication the jMagistrate must have had the Dunedin jcase in mind. His Honour: Do you say the same ■about tho previous • convictions in the Magistrate's own Court? If that is so, Magistrates who have heard cases are disqualified from hearing othei; cases ■;concerning those persons with whom ■they have prcviously dealt in their ■"Couxts. Counsel: It would be absurdfor me to jjcontend that, your Honour. -It- is a. • question of faet in each case. . Mr. H. J. Macalister, in putting the jcase for the Cro.wn, said that, -though ■accused told of his previous convictions jin answer to questions by the Magisjtrate, they were questions which the 'Magistrate could properly ask. The jfacfc that tho list of previous convicjtions was handed in did not affect the jposition. -"Counsel for the accused now alleges as his sole grounds that the • tfact that the Magistrate asked certain -ques'tions show? his mind was biased, jbut I submit that the facts do not even jbegin to prove bias/' said Mr. Macialister. "It is clear .that, at the timo jthe Magistrate began asking.. questions, !he had- told accused he did not believe bis evidenee. He then. asked accused jabout his previous convictions in his jown Court and in Dunedin. That was ia perfectly proper suggestion. That jbecause tho Magistrate knew of prison-jer-'s previous convictions ho showed bias |is a most amazing contention. Eegard|ing the prisoner's conviction at Dunjedin, we must presume that the Magis--trate, like everyone else, reads the ■newspapers, but he asked accused about -it. There is not the slightest evidenee 'of bias. If this were established it ;would be improper for the Magistrate , ,to try any person more than once. The i jproceedings were regular and there was ino escessive jurisdiction. ' ' • His Honour said he would take trme jto .consider his- decision^