SUPREME COURT

Press, Volume XCIII, Issue 28001, 22 June 1956, Page 9

SUPREME COURT

MAINTENANCE APPEAL SUCCEEDS An appeal by Thomas John Downes, a traffic assistant employed by the Railways Department, against the refusal of a Magistrate to cancel or vary a maintenance order, was allowed byMr Justice Adams in the Supreme Court yesterday. He reduced the weekly payments from £4 a week to £ Do 5 «nes conducted his ° w ” ca J®’ the Crown Solicitor Mr A. W. Blown) appeared for the respondent. Downes outlined the grounds of h s appeal, and then went into the w ness box to give evidence He that the original maintenance order, made in 1949. was for £2 a week, but on May 30. 1955, it was varied to ±4 a week—£3 for his wife and £1 for his child. On the present application his wages were £ll a week. His application for the order to be cancelled or varied was heard by the Magistrate on November 7, 1955, and refused. His wife was granted a decree absolute in divorce in October. 1953 Downes said he was paying 35s a week for a room, and in addition had iQ pay for meals, washing and general expenses. It was impossible to pay £4 a week from a wage of £ll. Downes said his present wage was 5s 8d an hour for a 40-hour week. He had been working overtime in tne summer months, but had hardly any in the winter months because of reduced rail traffic. It was impossible for him to pay £4 a week maintenance without the overtime. Downes called his former wife Noreen Ethel Downes, as a witness She said she came under subpoena Questioned by Downes, she gave details of her casual employment in Tv maru, and said she had more thar £5OO in the Post Office Savings Bank Mr Brown said he would call n< evidence. Downes had called it all The appeal was against a decisior made bv Mr L. N. Ritchie. S.M., or November 7. 1955. On May 30, 1955 the same Magistrate heard a complain on behalf of Mrs Downes for an in crease in the amount of maintenance The Magistrate increased the main en ance to £4 a week. Downes appnec for a variation of that order on No

vember 7, 1955, and the Magistrate dismissed his complaint, holding that the circumstances had not so changed that the order should be varied Downes was now appealing against that decision. Mr Brown submitted that the Magistrate was justified io dismissing the complaint, though he conceded that Downes’s earnings in May, 1955, were greater than they were in November. 1955

His Honour said he had come to the conclusion that Downes had made out a case. The order would be altered to make the total weekly payments £3 ss—£l 5s for the child and £2 a week for Mrs Downes. The order would take effect from November 7, 1955. It seemed that the arrears of mainenance might exceed £4OO. said his Honour. Downes had given an explanation, but it was doubtful if that accounted in full for the arrears. It would not be right to leave Downes with such a heavy burden of debt arising from the order. His Honour remitted all arrears accrued up to November 7, 1955. except for £5O. Downes would have to pay this £5O and any more recent arrears less credit for arrears paid and payments in excess of £3 5s a week since November 7, l. r 55. The order now made was subject to variation in the Magistrate’s Court at any time, having regard to any change in the circumstances since November 7. 1955. said his Honour.

SECOND APPEAL ON SENTENCE

DECISION RESERVED

Decision was reserved by Mr Justice Adams in the Supreme Court yesterday on a second appeal by Alan Farquhar Young, aged 35, against the seritence of 18 months’ imprisonment imposed in the Dunedin Magistrate’s Court on three charges of breaking and entering shops in Palmerston.

His Honour heard a similar appeal by Young on May 14 and dismissed it. Yesterday he reserved his decision on the appeal and on the question of his jurisdiction to deal with this second appeal. Mr R. W. Edgley appeared to Young, and the Crown Prosecutor (M A. W. Brown) for the Crown.

Young admittedly had a bad recorc with convictions dating from Octobei 1936. said Mr Edgley. Most of the con victions were for dishonesty. It wasignificant that Young had been com mitted to the care of the Child Wei fare Department and to Borstal: he had been fined, imprisoned, and given reformative detention, but he had never once been given the advantages of probation. Before the present offences it had been 12 years since Young had been convicted of dishonesty.

Mr Edgley submitted that, in sentencing Young, the Magistrate in Dunedin felt he was beyond redemption and had to be put away for the benefit of society. But Young was capable of something better. The Court would be taking a risk, but it could admit him to probation on strict terms. He had a wife and three young children and he might well be worth another chance to rehabilitate himself.

Counsel submitted that the Magistrate was unduly influenced by Young’s record of crime which began when he was 15. He had not been able to find clear authority that t’-e Court had jurisdiction to deal with this second appeal.

Mr Brown submitted that the Court had no jurisdiction to deal with a second appeal. The appeal had been dealt with by his Honour in May on its merits and was dismissed. It could not be reopened. His Honour said he had thought it proper to hear this appeal because Young was not represented by counsel on the previous occasion and might be suffering a sense of injustice. If he felt his dismissal of the earlier appeal was wrong he could represent his views in the proper quarter and that might be effective.

His Honour said he would reserve his judgment.