HABEAS CORPUS.

Auckland Star, Volume LXVI, Issue 299, 18 December 1935, Page 8

HABEAS CORPUS.

APPLICATION FAILS.

COURT PROCEDURE UPHELD. PROBATION BREACH SEQUEL. Holding that the legal procedure by which Phillip Donald Martinovich was sentenced, to two years' reformative detention on May 28 last was correct, Mr. Justice Fair and Mr. Justice Callan, in a reserved judgment delivered this morning, refused the application for a writ of habeas corpus wlich was made on the prisoner's behalf by Air.' Hall Skelton. Last May at the Supremo Court Martinovich was admitted to two years' probation on a charge of fraud, and a few days later he was convicted at the Police Court on a charge of stealing a suit length valued at 25/. He was remanded and later appeared again at the Supreme Court, where Mr. Justice Reed imposed the sentence of reformative detention on the original charge of fraud. Mr. Hall Skelton challenged this procedure, contending that no person could be committed to prison, in pursuance of section 14 of the Offenders' Probation Act, 1920. unless he had been first convicted of a breach of his pror bationary license under section 13 of the Act. "Admittedly," read the judgment, "the • prisoner had not been so convicted prior to sentence and it was argued that the warrant of commitment and the sentence imposed were invalid for that reason. Section 13 of the Act provides that a person released on probation who commits a breach of his probationary conditions is liable to imprisonment for three months, or a fine of £10. Section 14 provides for a person committing a breach of his probationary license being brought before the Court a«ain and sentenced in respect of the original charge. Section 14 also contains a provision that the evidence of the probation officer shall bo heard." Their Honors held that Mr. Skelton's contention was not tenable. Section 14 of the Act was in substantially the same terms as section 13 of the First Offenders' Probation Act of 1908, and his argument must be founded on the contention that section 13 of the present Act, to which there was no corresponding section in the 190S Act, effected a change in the meaning of the language employed in section 14. "We see no sufficient reason for accepting this view, and in our opinion the provisions of the Offenders' Probation Act, 1920, and the terms of section 14 itself, are against such a construction." Their Honors further held that section 14 authorised the judge to impose a sentence in respect of the original offence for which Martinovich .was released on probation, and not only in rcspeet of the breach of probation, which counsel had contended. Dealing with the contention that there was no power to substitute a fresh warrant of committal after proceedings had been taken for a writ of habeas corpus, which was done in prisoner's case, their Honors held that it seemed clear that the judge imposed the sentence in respect of the offence for which the prisoner was originally released on probation. The second warrant was not therefore an alteration of the judgment or sentence of the Court, or a warrant in respect of an offence other than that which was considered when the sentence was passed. It was issued in substitution for a warrant of commitment that was erroneous in form. Authority existed to amend a warrant which did not express the true intention of the Court, even after proceedings for habeas corpus had been commenced. Mr. Hubble appeared for the Crown in opposition to the application.