ATTEMPTED RAPE CHARGE

Press, Volume XCI, Issue 27563, 21 January 1955, Page 13

ATTEMPTED RAPE CHARGE

Court Exceeded Jurisdiction

FRESH INFORMATION LAID

Clarence Patrick McNair, aged 18 years and six months, a driver, was inadvertently given the choice of trial by jury or being dealt with by the Magistrate Xrhen he appeared in the Magistrate’s Court on Thursday of last week on a charge of attempted rape. It was a case which could be dealt with only bjf the Supreme Court. This was made plain by Mr Rex C. Abernethy, S.M., when the case was called yesterday, McNair having been remanded for sentence. When the case came before the Court, Mr J. B. Weir, counsel for McNair, said that rape and attempted rape could be dealt with only by the Supreme -Court. McNair appeared in the Magistrate’s Court on Thursday of last week, pleaded guilty to the charge and elected to be' dealt with by the Magistrate. He should not have been given that election. McNair was originally charged before two Justices of . the Peace with indecent assault. He indicated to the police that he intended to plead guilty to the charge. He was not asked to plead before the Justices but was remanded to Thursday of last week. He was not represented by counsel. Mr Weir said that his instructions were that when a solicitor was mentioned, McNair was told by the detective handling the case that a solicitor was not necessary and if he engaged one he would only be wasting his money. That remark was also made to McNair’s mother. Two minutes before the Court was due to sit on the Thursday the detective told McNair rather casually that the charge would be attempted rape. McNair asked if that was necessary and the detective said it was. McNair then said that if that was so he would just have to take it. “At the time the offence was committed, McNair was only 17. I submit that it is utterly improper for any police officer to say to any person, particularly a young person, that to employ a solicitor would be a waste of money,” said Mr Weir. “By the irregularity that has occurred McNair pleaded guilty and the plea is utterly nugatory. He would be completely without the opportunity of a fair trial in any Court in this country for not only the Christchurch newspapers but the national weekly, ‘Truth,’ published the account of the proceedings when his plea of guilty was taken. Had McNair been given the opportunity of being represented by counsel he might have pleaded otherwise. Now, if he goes to the Supreme Court, no jury can be considered to be ignorant of the alleged happening. I ask that the conviction be quashed and that McNair be allowed to go free.” Magistrate’s Comment “The point clearly is that this Court has no power to deal with him or to enter a conviction,” said the Magistrate. “It appears, that there was complete inadvertence in giving this man the right of trial. It should not have been given him. Only the depositions should have been taken before sending the case to the Supreme Court. v The Magistrate stood the matter over until later in the day. When the case was again before the Court, Detective-Sergeant G. C. Urquhart said he felt he could not let Mr Weir’s outburst go unchallenged. Mr Weir had made allegations against the police which would be refuted. Mr Weir’s instructions from his client were, to say the least, inaccurate and it seemed more or less a storm in a tea-cup. DetectiveSergeant Urquhart asked the Magistrate if he would hear the detective who was prepared to go into the witness box. He felt somewhat incensed at what had been said for a lot of it was inaccurate, and in fairness to the detective he should be heard. The Magistrate said he did not think he could go further into it. The Court could accept the statement that De-tective-Sergeant Urquhart denied the allegation. Mr Weir: I treated my friend with courtesy. I don’t think . . . “I will not allow the matter to go any further,” said the Magistrate. “The detective is entitled to deny it. “Through inadvertence- the election of summary jurisdiction was granted the accused,” said the Magistrate. “The attention of the Court has been drawn to the fact that the information was laid on a summary form which would be misleading to the Court, but it did not justify the error. It was inadvertent and led the Court to deal with the matter up to this point. It is clear that this Court has no jurisdiction in this case and, as no decision has been come to, the Court simply records that jurisdiction is declined.” Detective-Sergeant Urquhart then laid a fresh information against the accused. Mr Weir asked the Court to note his formal objection to the lodging of the information. The Magistrate said that Mr Weir could raise the matter when the case again came before the Court. The charge was read to McNair and he was remanded to January 26. He was allowed bail on his own recognisance of £lOO and one surety of £ 100 on condition that he reports daily to the police.