Court Critical Of Trial’s Course

Press, Volume CIII, Issue 30451, 27 May 1964, Page 3

Court Critical Of Trial’s Course

(N.Z. Press Association) WELLINGTON, May 26.

“We think it Accessary to say quite firmly, that we wholly disapprove of the course of events in this trial,” said the Court of Appeal today in a judgment allowing an appeal by Harry Martin and Frederick Thomas Shepherd against their convictions for being in possession of burglary instruments by night. It has been long recognised that prisoners who elect to give evidence in their defence are entitled to be protected by the Judge from an unfair attack upon their past characters,” said the judgment. Both were convicted by Mr Justice Perry in the Supreme Court at Auckland on February 25, last

In delivering the judgment of the Court Mr Justice North said the grounds the Court Was asked to consider were:

(1) That the trial Judge Wrongly allowed Martin to be cross-examined as to his previous convictions to the prejudice of both appellants. (2) That the trial Judge gave an insufficient or incorrect direction as to the meaning of “reasonable doubt”

(3) That the trial Judge failed to direct the jury, that .the onus on the appellant was such that he only had to satisfy them on the balance of probability that he had a lawful excuse for having the instruments in his possession, and that even if they did not accept his explanation, if it left them with a reasonable doubt, then he was entitled to be acquitted.

(4). That the trial Judge failed to give the jury an adequate direction that the overall onus of proof beyond all reasonable doubt in a criminal trial lies upon the prosecution in spite of the statutory provision.

Mr Justice North said the Court had concluded that the trial must be regarded as so unsatisfactory that the only course open to it was to quash the convictions.

In delivering the Court’s judgment, Mr Justice North said counsel was given unusual liberty in persisting in a line of cross-examination, but to the end Martin resisted the very obvious effort which was made to induce him to attack the character of the police witnesses. Then a very unusual thing happened.

The cross-examination was interrupted while two detectives were recalled for the purpose of contradicting some of the evidence given by Martin. Martin’s cross-examination was then resumed and permission was immediately given to counsel to crossexamine him as to his previous convictions.

“The next complaint relates to the direction given by the trial Judge as to the meaning of ‘reasonable doubt’,” said his Honour. "The reference to

‘reasonable doubt’ was short, but we do not think that oh that account it was in itself questionable. “What was, however, questionable in this connexion was that the Judge did not go on, the accused having given evidence, to advise the jury how they should then look at the evidence as a whole.” Referring to the third complaint the Court held that there was insufficient direction.

Tlie Judge was required to point out that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.

The convictions of both appellants on the first count were quashed, and a direction given that a new trial take place.

The other members of the Court of Appeal were Mr Justice Turner and Mr Justice Hutchison.