Supreme Court Application For Rehearing Of Driving Charge

Press, Volume CI, Issue 29800, 17 April 1962, Page 11

Supreme Court Application For Rehearing Of Driving Charge

It would be a failure of justice if David James McClure’s appeal proceeded before he had an opportunity to test the observations made by witnesses in the Magistrate's Court. Mr P. G. S. Penlington said to Mr Justice Richmond in the Supreme Court yesterday. McClure's application for a rehearing of a charge of dangerous driving on which he was convicted by Mr Stewart Hardy, S.M., was made in ■conjunction with his ap<peal against the conviction. Mr A. Hearn, for the Christchurch City Council, said that the council wished to be neutral on the application. There were unfortunate aspects in the way in which the case had been dealt with in the Magistrate’s Court. Mr Penlington said that McClure had not been represented by counsel at the lower Court hearing. He had been fined £25 and his licence cancelled. He had been forbidden to obtain another licence for two years. Mr Penlington submitted that the notes of the hearing were defective. No reasons had been given by the Magistrate for his decision, and there had been no proper pronouncement on the question of credibility of witnesses. which was an issue. “There was conflict of evidence. and credibility was involved.” said Mr Penlington. ‘‘The very short oral decision gave no guide on the conflict of evidence or on credibil-

ity,” he said. ”1 submit it is a proper case for the rehearing of evidence. “It would be a failure of justice to determine the appeal when the appellant had neither the advantage of counsel nor the benefit of cross-examination of the respondent's witnesses. His case was not adequately or properly put to the Magistrate.” His Honour said he could not help feeling that it might be more satisfactory for him to order a rehearing of the case in the lower Court. He reserved his decision on th* application until this morning. Licensing Act Appeal His Honour reserved judgment on an appeal by Kenneth Reuben Brown <Mr M G. L. Loughnan) against two convictions under the Licensing Act for dealing unlawfully in liquor at the Druids' Hall on August 3, 1961, and for allowing the hall to be used as a resort for the consumption of liquor. Mr Loughnan submitted that “dealing” meant disposing of the liquor in return for payment, but that there had been no evidence that any money had changed hands. The word “resort” in the second charge involved some habit or frequency, he said, and no habit had been established in this case. Mr Loughnan submitted that drinking was ancillary to the main object of gambling at the hall, and for that reason the hall could- not be

said to have been used as a resort for drinking liquor. Mr N. W. Williamson, for the Crown, said the police had not themselves said that liquor was for sale in the hall, but only repeated what Brown had told them. He said the evidence had disclosed that there were reasonable grounds for the police to believe that liquor was there for the purposes of sale.

On the second charge. Mr Williamson said the authorities quoted did not exclude the Magistrate in the lower Court from holding that on the evidence of the circumstances it was a place of resort. Appeals Dismissed An appeal by Colin Armstrong Gribble, aged 31 (Mr G. T. Mahon), against an aggregate sentence of four years’ gaol on charges of shopbreaking, receiving, theft, forgery, and false pretences was dismissed.

His Honour said that one of the first group of crimes committed in Auckland was very serious—breaking into a shop—and there were two serious charges of receiving. Gribble then disappeared, and then perpetrated an even worse series of crimes, including the theft of a very valuable stamp album valued at £1938 which he endeavoured to dispose of in Sydney. There -was also a very cunning and deliberate series of crimes to do with a car.

His Honour warned Gribble that if he kept on in the same manner he might be sentenced to preventive detention.

His Honour dismissed an appeal by Brian Lloyd Jones (Mr R. L. Moore) against a sentence of 18 months’ gaol for breaking and entering and unlawful conversion of a car. Mr Moore submitted that Jones was, in the words of the probation officer, “more of a nuisance than an active criminal.” He had been a hanger-on of a more experienced' criminal who was on a spree of burglary and car conversions extending from one end of the South Island to the other.

For the Crown, Mr Williamson said that Jones’s offences had been committed in the course of the type of tour of crime which appeared to be all too prevalent today. The sentences were not excessive. His Honour told Jones that if he thought the country and the courts would continue to extend leniency indefinitely for that type of anti-social behaviour he was making a serious mistake. “You have been heading for trouble for a number of years, and now you’ve got it,” he said. His Honour dismissed an appeal by Trevor Walsh, aged 18, against a sentence of Borstal training for shopbreaking. Walsh was not represented by counsel.