COURT PROCEDURE.

Auckland Star, Volume LXVI, Issue 297, 16 December 1935, Page 8

COURT PROCEDURE.

MISTAKE CONTENDED. YOUNG MAN'S SENTENCE. BREACH OF PROBATION. The contention that a young man, Phillip Donald Martinovich, had been wrongly sentenced to two years' reformative detention for a breach of terms of probation was advanced by Mr. Hall Skelton at the Supreme Court this morning when he moved that a rule nisi for writ of habeas corpus be made absolute. Mr. Hubble appeared for the gaoler in opposition to the motion.

The circumstances were that on May 15 Martinovich was admitted at the Supreme Court to two years' probation on a charge of fraud. On May 21 he appeared at the Police Court on a charge of the theft of a suit length valued at 25/. On this charge ho was convicted and remanded for sentence until May 28. On May 27 lie was sentenced at the Supreme Court on the original charge of fraud to two years' reformative detention.

Mr. Skclton contended this morning that the warrant committing Martinovich to Mount Eden was invalid on four grounds, namely: — (1) That under section 13 of the Probations Act of 1920 he should first have been charged and convicted for a breach of his probation liccnse before scction 14, which gave power to sentence On the original charge, applied; (2) that the warrant of committal was defective, in that it expressly stated that the prisoner was convicted under section 181 of the Justices of the Peace Act for a breach of the terms of his probation when he was not actually tried for that; (3) that the warrant coukl not be amended by another which was subsequently issued at the Court; and (4) that the prisoner had the right of trial by jury for the breach, and the failure to so inform him was fatal to the conviction.

Mr. Skclton submitted that the question for the Court, which comprised Mr. Justice Fair and Mr. Justice Callan, was whether the procedure adopted could be justified. The prisoner was not tried for a breach of his probation order, and the warrant which said he was was defective. Mr. Justice Callan: You say that the fir£t warrant does not correctly recite the facts. Does it alter the matter, in your view, if the second warrant docs? Mr. Skelton: I say the second warrant does not attempt to do so. Mr. Justice Fair: In what respect do you say the second warrant is erroneous? Mr. Skelton: I can only go by the Court records. They show that prisoner was convicted for a breach of his probation liccnse and that he was sentenced on the original charge. Mr. Justice Callan: Is that not what the second warrant says? Mr. Skelton contended that the prisoner should have been brought either before a magistrate or the Supreme Court on the charge of breaking his probation order. Mr. Justice Callan replied that the prisoner had been brought before the lower Court for theft, had been convicted, and the circumstances had been abundantly proved to the Supreme Court. He could not follow what counsel thought was the matter with the procedure. (Proceeding.)