Supreme Court S.M.’s Brevity “Regrettable”: Rehearing Order

Press, Volume CI, Issue 29801, 18 April 1962, Page 12

Supreme Court S.M.’s Brevity “Regrettable”: Rehearing Order

It was regrettable that a visiting magistrate, Mr Stewart Hardy, S.M., did not elaborate sufficiently on his finding that the prosecution had established a case against David James McClure when he convicted him of dangerous driving, said Mr Justice Richmond in the Supreme Court yesterday “This failure has resulted in a lot more time being spent on this matter.” said his Honour, “and one regrettable feature is that members of the public will be called on to give evidence again. This is a matter I greatly regret.” His Honour ordered that the charge against McClure should be reheard in the Magistrate’s Court. McClure's counsel (Mr P. G. S. Penlington) had applied for a rehearing, in conjunction with McClure’s appeal against conviction.

For the prosecuting authority, the Christchurch City Council. Mr A. Hearn had said that the council adopted a neutral attitude because of

“unfortunate aspects" of the lower Court hearing. In his decision on the application. his Honour said the City Council’s attitude had had a considerable effect on his mind on the course to be adopted. His Honour said the case for the prosecution 'had rested on the evidence of three eye-witnesses and a traffic officer who had not seen the driving which was the subject of the charge, but who had interviewed McClure afterwards. Witnesses’ estimates of speed had varied between 40 miles an hour and 60 miles an hour. There had been a suggestion that McClure and a young man in another car bad been racing, but the nature of the road, the presence of intersections, pedestrians, and other traffic had been somewhat vague "McClure gave very short evidence.” said his Honour. “He simply denied that he did more than 30 miles an hour, and said he was testing his brakes for a warrant.”

The relevant part of the Magistrate’s judgment had been: "I am quite satisfied that the case has been established,” and he had convicted McClure “He gave no further explanation of the view he took of the case other than what I have cited.” said his Honour On the question of the City Council’s attitude, his Honour said he could only assume that the council felt it was a proper application to be granted He said that Mr Justice Turner had said in a judgment that the ordering of a rehearing was an exceptional course to take because appeals were usually taken on the written record.

“In many cases it may be quite apparent even from the briefest decisions just what findings a magistrate has made and which conflicting witnesses he has believed.” his Honour said. "In the present case I take the view that it is not clear from the decision what view the Magistrate took as to the speed proved against McClure, whether the vehicles were racing one another, or as to what circumstances created a danger—and. if so. whether to pedestrians or to other traffic. "This is a case in which the Court simply cannot make assumptions on which view’ the Magistrate took. the circumstances the proper course for me is to direct that the information be reheard in the Magistrate's Court.

"I have adopted that course because it is highly desirable that the hearing should take place as soon as possible, and it may be difficult to arrange a fixture in the Supreme Court because of the imminence of the criminal session after the Easter vacation. "In the course of hearing and deciding appeals from magistrates’ decisions J have been very impressed with the trouble the resident magistrates have taken in giving adequate reasons for their decisions. "It is obvious that they have not only facilitated the operation of the system whereby appeals arc heard on the written record rather than be rehearing the whole evidence, but —and this may be more important—they have left the parties in no doubt on the reasons for their decisions. “It is important in the interests of justice that parties to proceedings, and particularly unsuccessful parties, should be left in no doubt about the reasons prompting decisions of the Court. “I am fully aware of the work facing magistrates, and I am conscious that it is not possible for them to give as long decisions as might be possible here.”