OSTLER CASE

Waikato Times, Volume 128, Issue 21373, 18 March 1941, Page 6

OSTLER CASE

JUDGMENT RESERVED APPELLANT’S CONTENTIONS QUESTION OF PENALTY (By Telegraph.—Press Association) WELLINGTON, Tuesday The appeals of Harold Alexander Ostler and Travels Burnell Chris- ’ topher Christie, from the convictions recorded against them at Christchurch r on February 13, of attempt- . ing to publish a subversive state- ! ment, and the sentences of 12 months’ i hard labour imposed by Mr Justice j Northcroft on each of them were j resumed in the Court of Appeal to- ■ day. The court consists of the Chief I Justice, Sir Michael Myers, and Justices Smith, Johnston and Fair. Mr C. Taylor, the Crown Solicitor, is appearing for the Crown and the prisoners are appearing for themselves. Ostler, in addressing the Court, in . reply to the Crown, contended that the Crown's case rested entirely on ; Section 394 of the Crimes Act, which j provides that where a complete com- ; mission of a crime charged, is not | proved, but evidence establishes an ! attempt to commit that crime, accused ! may be convicted on such an attempt j and punished accordingly. That argu- ; ment, however, he submitted, over--1 looked the fact that the Regulations I under which he was charged distin- , guished between commission and at- ! tempt as separate and substantive ; offences and the Crown at the trial ! at Christchurch treated them as separate offences and laid separate ; charges.

Enormity of Offences Ostler was dealing again with the question of penalty when the Chief Justice said, “ You are an educated young man. Assuming for the moment you fail on these legal points that the | Court has to consider, can you not j even now see the enormity of these I offences against these regulations ? Ostler: “ I’m afraid that that is a ! question which I find difficult to | answer on the spur of the moment. Sir Michael: Very well. I When Ostler finished his address Christie was asked by the Court whether he wished to add anything. He replied that he did not. ; The Chief Justice then said that I the prisoners would be required in I Court tomorrow or the following day. • In view of the statements made yesterday by Ostler he, with the concurrence oi the other member of the Court, had communicated with Mr Justice Northcroft, who would let them know what he had to say about the misdirections which Ostler alleged had been given to the jury at the trial. If Mr Justice Northcroft’s answer rendered it necessary, the Crown ; Solicitor and the prisoners would be sent for. In the meantime judgment would be reserved and prisoners j would remain in Wellington. The cases would be disposed of in the present week.

YESTERDAY’S PROCEEDINGS Christie said that the Public Safely Emergency Regulations, 1940, under wnicn they nad been prosecuted, expressly provided by regulations 3 tnat no prosecution lor an offence under those regulations can be commenced without the consent of the Attorney-General being obtained. They were arrested, he said, and charged with publishing a subversive statement and on tnat charge alone were committed for trial. Referring to the appeals against the sentences imposed, on tnem, Ostler submitted tnat in a country such as New Zealand, fighting for the principles of democracy, the publication of any opinion, however incorrect it may be thought to be, ought not to be punisnable. He asserted that Christie and he should not have been punished as ordinary criminals, but merely prevented from doing or continuing to do what they believe to be rigilt but wnich the regulations said was illegal. That could have been done by admitting them to probation on certain terms. “We submit,” Ostler said, “that honesty and sincerity oi purpose should be taken into account in fixing the penalty, and if that is done the sentence imposed must be considered excessive.” As to the prisoners’ appeal against the sentence, Mr Tayior said the public interest demanded that people who attempted to publish views suph as those in the People’s Voice should be put within the limits of the law in places where they could not publish them. Sir Michael Myers: If you carry that to its logical conclusion, the regulations should provide that anyone guilty of publishing a subversive statement should be imprisoned for the duration of the war. Treasonable Activities The prisoners, continued Mr Taylor, had urged that as they were in earnest and conscientious they should receive lenient treatment, but the fact that they were conscientious and determined in their views would lead to the belief that they were more j likely for that reason to spread their ■ views. He contended that probation was out of the question. Sir Michael Myers: Would you say that subversion or an attempt at subversive activities was assisting Flis Majesty’s enemies in the war in any manner? Mr Taylor: Yes, most certainly. Sir Michael Myers: Then that is 1 treason. I asked you that because I I think that the public should know i the real nature of these acts, which, j in the regulations, are called sub- j version. Some cases, I do not say 1 these cases, may go dangerously near J treason. j The Court adjourned until to- j morrow.