Evening Post. MONDAY, AUGUST 8, 1921. A FIRST OFFENDER'S RIGHT

Evening Post, Volume CII, Issue 33, 8 August 1921, Page 6

Evening Post. MONDAY, AUGUST 8, 1921. A FIRST OFFENDER'S RIGHT

Another member of the Court of Appeal has now expressed his dissent from the construction placed by Mr. Justice Salmond upon the much-discussed decision of that Court regarding a first offender's right to probation. There is, according to Mr. Justice Reed, no such right, nor had the Court of Appeal any intention of establishing one. He dissents from Mr. Justice Salmond's contention that the effect of the decision is that ''every man in this, country is entitled to commit one theft or- one forgery with safety and remain at liberty." It is unfortunate that'the decision itself was not so expressed as to render glasses unnecessary and conflicting interpretations impossible. We are entitled to something better from the Bench, and we usually get it. Juries are privileged to give no reasons at all for their decisions, and the decisions of Parliament are often so obscurely worded'that a large part of the time of the Courts is taken up in determining what it meant or thought it meant or may be conjec.tured to have meant. AThe advantage of judicial pronouncements over the inarticulate or ambiguous procedure of these lay tribunals is that they are the work of men of high intellectual power, skilled in analysis, in reasoning,^ and in expression, and fully aware that their decisions t not merely affect 'the parties immediately concerned but establish precedents which may govern an indefinite number of other cases. In its curtness and its uncertainty, the Court of Appeal's decision in Jeffry's case fails ■to conform to the high standards v/hich have been thus established.

" The Court of Appeal," says Mr. Justice Reed, " laid down no new principle; it dealt solely with the circumstances of the cape under review." Mr. Justice Adams had previously spoken to the same effect. All that the Court had to do was, we are told, " to apply to that case the principles that have guided the Courts in New Zealand since 138(5, when the First Offenders' Probation Act was passed." Without venturing to dispute the correctness of this statement, we may point out that, in giving for the first jtime the sanction of the highest Court to principles hitherto derivable Only from scattered, Unrecorded, and individually unautbontative nisi prius decisions, the Court of Appeal was undertaking a task of special responsibility, and that it was at least incumbent upon the Court to state clearly what those principles were. "But it was content to say that Mr.- Justice Salmond's refusal of probation in the' case under review was not in accordance with those principles— which after -all amounts to little, if anything, more than the " Yes " or "No "of a jnVy. What those principles are, and in what respect Mr. Justice Salmond failed to apply them properly, the judgment fails b~> explain. The principles are given a -higher authority than they had before, but they are still to be sought in the same " wilderness of single instances "-^and in some respects no doubt conflicting instances —as before. :

It may of, course be said that the principles in question are really no more than rule of thumb, and are therefore incapable of preoise defi,nition. Mathematical precision is necessarily out of the question, but it was*-certainly possible to give a general exposition of the purport and application of these principles, instead of treating them as being equally clear and definite with the provisions of a statute. We have' to thank Mr. Justice lleed for filling in to some extent the gap left by a decision to which he was a party. Though his treatment of the subject lacks the.formal authority of the Court of Appeal, it may be assumed in the circumstances that he does not speak on his own ac count alone. In Mr. Justice Reed's opinion, the following factors should be taken into consideration in deciding whether an offender should be given the benefits of probation : l ' . '

(1) Age of accused; (2) his previous conduct and reputation; (3) whether he has added to his offence by the crime of perjury' in the witness-box; (4) the Probation Officer's and the police reports on the accused, alwl particularly, \vhere the Probation Officer is a 'man of experience, whether he recommends pro bationj (5) nature of the offence and the circumstances Under which it was committed. It may perhaps be necessary 'also to take into ■ consideration the prevalence of n. particular class of crime and the necessity of endeavouring to stamp it out by refusing to admit to probation that special class of offender.

His Honour added that he would refuse probation in any case where the general result of these tests was unfavourable to the prisoner, and that in so doing'he would feel Sure that--he was " not acting against any principle laid down or implied by the Court of Appeal." The word " implied " touches the

root of the trouble: so much is implied in the judgment of the Court of Appeal, and so little is expressed. The result of an application of Mr. Justice Reed's five tests is that, the age of the accused being twenty-two, the /answers to the, first four were in his favour, butit is No. 5 with its suggested addendum—the nature and prevalence of the crime—that constitutes the crucial point. On this point, however, the pronouncement of Mr. Justice Reed, throws no more light than that of the Court of Appeal. Is a man who has been guilty of theft and forgery in circumstances which provide no extenuation to be admitted to probation, merely because his age is only twenty-two and 'his previous record is* good? That is the issue between Mr. Justice Salmond and the Court of Appeal, and Mr. Justice Reed's statement leaves it substantially where it was. The deliberation of the crime and the frequency of such offences are elements which surely deserve more precise attention than those who have overruled Mr. Justice Salmond have given to them. The Government and the Legislature should review the whole matter, especially in its probable"effect on the punishments inflicted by the inferior Courts.