LEGAL ESCAPE

Press, Volume LXXXI, Issue 24711, 31 October 1945, Page 8

LEGAL ESCAPE

♦ DEFAULTER HELD IN PRISON END OF WAR RAISED AS DEFENCE " The Press '. Special Service HAMILTON, October 30. The legality of the detention of military defaulters was questioned by John Bums Crichton, barrister and solicitor, of- Christchurch, when he was charged in the Supreme Court at Hamilton yesterday with being an incorrigible rogue in that he escaped from lawful custody. He raised the defence that under the National Service Regulations the "present war,"' for the duration of which he was detained, meant the war with Germany and Italy, and that his detention after May. 9 was illegal because the Finance Act defining the end of the war was not passed until July 26. His Honour Mr Justice Fair reserved the legal points involved, but pointed out that there was also the ■question of military obligations. The jury acquitted Crichton. but after he had been discharged he was again teken into custody. Mr Gillies prosecuted for the Crown, and accused, who conducted his own defence, pleaded not guilty. Mr Gillies said that accused was serving a term of detention for a breach of the National Emergency Regulations; . He was imprisoned at the Waikeria. Borstal Institution when, on July 24 last, he escaped. Accused left a note stating that as the war was over he was being illegally detained in prison and that he intended to surrender himself to the military authorities.

• James Alexender Rooney, principal warder at the institution, gave evidence that accused was reported missing at 4 p.m. on July 24. Witness' produced an order signed by Mr W. H. •Freeman, S.M., at Rbtorua, authorising accused's committal to prison on August 18, 1942. Accused's Defence Accused,' addressing the Court from the dock, contended that on July 24 the term for which he had been imprisoned'had legally expired.' Regulation 44A ,pf the National Emergency Regulations, 4941. made it clear that .the'war referred to concerned only Italy, and Germany. On July 26, 1945, two; days' after he left Waikeria, section 16 of the Finance Act, M 945, was passed, providing that the war should be deemed to be continuing until a .date fixing its termination should be proclaimed by the Governor-General. Accused said that by July 24, 1945. Italy had ceased to be a belligerent and that Britain had granted her diplomatic recognition. War ceased in Germany on May 9, 1945. On that date she had surrendered all her armed forces and the Government of the Reich was dissolved. Therefore, His Majesty's Government could not have been in a state of war with a country without a Government. It was different in the First World War, when an armistice existed for some time after hostilities ceased.-

His Honour said it was the duty of the Crown .to show that accused escaped at a time when a state of war with Germany existed. Everybody knew that hostilities ceased on May 9. Technically accused might have been entitled to escape. His contention seemed to be fight and that no offence had been committed. At the best, there was a grave doubt about the position and accused was entitled to be acquitted. When his Honour remarked that accused would remain in custody, Crichton asked whether he was not entitled tp be discharged. His Honour replied that it was for accused to ascertain his position with respect to the military authorities. On that he would not advise him.

Warning; to Warders His Honour said that he would not direct that accused should be discharged. A sequel occurred outside the courtroom when Crichton informed the warders that he*would not accompany them and-that they would arrest him at their peril. He contended that they had no right to take him into custody again. If they did he warned them that they might have to face an action for illegal imprisonment.

A direction was sought from his Honour, but he declined to give one. Crichton offered to give the warders his address and said he would report whenever he was required. The matter was referred to Wellington, and while a reply was being awaited Crichton remained near the police station, but not in custody. The Prisons Department decided late in the afternoon to take Crichton into custody.