Case Reheard After Direction By Judge

Press, Volume XCIX, Issue 29192, 30 April 1960, Page 14

Case Reheard After Direction By Judge

(New Zealand Press Association)

WELLINGTON, April 29. A situation in which two Wellington magistrates were stated to have refused to deal with a case remitted to the Magistrate’s Court by the Chief Justice (Sir Harold Barrowclough) was described as Gilbertian by counsel in the Supreme Court today. The case was an appeal, on the grounds that the sentence was \ excessive, by Tamati Horomene Keremea Potini, aged 25, a soldier, against a sentence of six weeks’ imprisonment for assault and wilful damage. Last month, his Honour said, submissions had been made which, if they had a factual basis, tended to show that the sentencing magistrate was not in full possession of the facts. The case was remitted back to the Magistrate’s Court for rehearing on sentence. Mr R. Stacey, for Potini, said his client was originally sentenced by a magistrate who had since retired and was no longer living in Wellington. Mr M. B. Scully, S.M., and Mr W. H. Carson, S.M., said they could not themselves deal with the matter unless there was a complete rehearing. For the Crown, Mr W. R. Birks submitted a magistrate had jurisdiction to deal with the matter. His Honour suggested a further approach be made to the Magistrate’s Court.

When Potini appeared before Mr Carson in the Magistrate’s Court later, the Magistrate granted a rehearing of the case after hearing legal argument from Messrs Birks and Stacey. Mr Birks submitted that the act under which the Supreme Court’s ruling was made automatically meant rehearing the case. He said the plea of guilty made on

the first hearing would not be changed, and that the question of sentence only would be under review.

Mr Carson: It doesn’t specifically state that. They should make matters clear-cut, as we do. Mr Stacey submitted Mr Birks had presented a valid argument. ‘‘l am sure Mr Birks might—and if he does not, I may be forced to—issue a writ of mandamus, requiring your Worship to exercise jurisdiction in the matter,” said Mr Stacey. After rehearing the case, the Magistrate said: ‘‘A higher Court has taken the view that some other penalty should be imposed. They have considered the seven days spent by Potini in gaol and have apparently considered the terms of imprisonment imposed in the circumstances excessive.” He fined Potini £lO, costs £1 10s. on the assault charge, and £1 10s costs, £5 restitution, on the wilful damage charge.