Trial Ends Dramatically With Accused’s Discharge

Press, Volume XCIX, Issue 29384, 10 December 1960, Page 12

Trial Ends Dramatically With Accused’s Discharge

(New Zealand Press Association) WELLINGTON, December 9. The case in which John Edward Gilmore, aged 59. an overseer, was facing 17 charges of forgery to daily time sheets during the construction of Wellington airport ended dramatically in the Supreme Court at Wellington today when the Chief Justice (Sir Harold Barrowclough) stopped the trial and discharged the prisoner. The Chief Justice, who was exercising his discretionary powers under section 42 of the Criminal Justice Act, took this action just as Mr M. J. O’Brien, representing Gilmore, was about to open the case for the defence. After his acquittal Gilmore walked in a dazed fashion from the Court. The case was in its second day, seven witnesses having been called for the Crown.

Before making his pronouncement. his Honour asked the jury to leave the Court for a brief period. He then asked the Crown Prosecutor (Mr W R. Birks) whether he had any further evidence which showed that more had been paid to F. and J. Bognuda, Ltd., than they had actually earned. He said he felt the onus was on the Crown to satisfy him that Bognuda had been overpaid. His Honour said that during the whole of the day’s proceedings he had been directing his mind to the question of whether he ought to exercise his discretionary powers under the act. “It is not my function to make a public finding of what I think of the man's guilt,” his Honour continued. “Nothing I am saying must be construed as my views on that question. I am concerned whether Gilmore should be required to submit himself to trial by jury any further than he has so far been submitted, and I have come to the conclusion that I should discharge the accused."

His Honour said that a Judge would not exercise his discretion except in special circumstances. He did not think Gilmore should have a conviction recorded against .him, but he was not justified in directing the jury that they ought to enter a verdict of not guilty. However, it seemed that if Gilmore was guilty, it was a very lenial offence and one in which he would not feel justified in imposing any penalty. Gilmore had given an explanation of his alteration of" certain documents, his Honour said.

If Gilmore had thought it proper to get authority from the Ministry of Works to use certain vehicles, it was clear he could have done so-

“Unfortunately, he did not. He adopted a method that is in my own view quite wrong. I am not saying it is criminal, but it may have been. That is for the jury to say. If he erred in that respect, he did nothing more than others who were in senior positions in the Ministry of Works,” said his Honour.

“Two senior engineers in the Court this morning said quite frankly that they, themselves, had altered relevant daily time dockets. There was not the slightest suggestion that either of them did anything that was dishonest. Again I say that I think what they did was wrong, but there was no suggestion from any quarter that it was dishonest.” His Honour said he was nol

suggesting that the prosecution was improperly brought before the Court. The manner in which it was brought revealed a great deal of impartial inquiry. As a result of this prosecution there had been revealed a practice which was most undesirable and had a great potential for evil, said his Honour. If others altered, he would even say falsified, records it was quite obvious there could be a gross misuse of

public funds and the possibilities for enrichment by the persons falsifying were very considerable indeed. If he thought there was any evidence that Gilmore had enriched himself he would not have exercised his discretion. He was sure the Ministry of Works, engineers, and other officials would realise the dangers inherent >n such a system and steps would be taken to. remedy the procedure. It was with a full sense of his responsibility, but with every confidence, that he had taken the right course and instructed Gilmore to be discharged. This was the same as an acquittal. His Honour emphasised that his action cast no reflection on the jury.