SUPREME COURT Rehearing Ordered On Appeal

Press, Volume CIII, Issue 30498, 21 July 1964, Page 10

SUPREME COURT Rehearing Ordered On Appeal

Mr Justice Maearthur in the Supreme Court yesterday upheld an appeal by Malcolm George Johnstone, aged 21, a workman, against a conviction in the Magistrates’ Court on June 12 on a charge of driving while disqualified, and ordered a rehearing. Mr I. C. J. Polson appeared for the Crown, and Mr A. D. Holland for Johnstone.

Mr Holland said the appeal was on the ground that Johnstone, who had not been represented by counsel, should have had facilities made available to him to subpoena witnesses. The father of one of the witnesses, two girls, refused to permit his daughter to appear in court when Johnstone telephoned him. The girls were in the car at the time of the alleged offence, and might have been able to persuade the magistrate not that the constable who had given evidence was a liar but that he came to a wrong conclusion.

The magistrate had rejected the appellant’s story on how he came to be in the driver’s seat.. The appellant had been convicted on the evidence of some of the persons who had been there, said Mr Holland.

Notice Of Appeal

Mr Holland said that delay in forwarding . Johnstone’s notice of appeal meant that he had finished a sentence of one month’s imprisonment for assault and resisting the police which was imposed at the same time. However, he was now serving a cumulative sentence of one month’s imprisonment for the driving

conviction against which he was now appealing. His Honour said that a rehearing had. been asked for on the ground that the two witnesses whose evidence could have been material had not been called. There was the possibility that a miscarriage of justice had occurred. As the appellant, was not represented he should have been accorded the facilities to subpoena witnesses, particularly as their evidence might have been material. However, the magistrate, after listening to all the evidence, including that of the girls, could have come to the same conclusion. ■ His Honour said he trusted that the magistrate would be able to arrange for a prompt rehearing, and the appellant should be represented. . “Wholly Wrong”

During the appeal reference had been made, to the 15-day delay between the time the notice of appeal reached the Magistrates’ Court and the time it arrived in the Supreme Court, he said.

As the appellant had been sentenced to imprisonment and was in custody, it was wholly wrong that there had been such a delay, his Honour said. He thought it was probably due to the necessity to have the record typed. This had not been short, but nevertheless there should have been no such delay. His Honour said hfe would ask the Registrar of the Supreme Court to discuss the matter with the Magistrates’ Court Registrar to find a way of avoiding a recurrence of such delays.