OSTLER-CHRISTIE APPEALS

Greymouth Evening Star, 18 March 1941, Page 2

OSTLER-CHRISTIE APPEALS

DEFENDANTS' ARGUMENTS

SENTENCES EXCESSIVE?

[PER press association.]

WELLINGTON, March 17.

The appeals of Harold Alexander Ostler and Travers Burnell Christopher Christie from the conviction recorded against them at Christchurch on February 13 of attempting 1o publish a subversive statement and a sentence of 12 months’ imprisonment with hard labour imposed' by Mr. Justice Northcroft on each of them, were begun in the Court of Appeal to-day. The Court consists of the Chief Justice (Sir Michael Myers), Mr. Justice Smith. Mr. Justice Johnston, and Mr. Justice Fair. The Crown Solicitor (Mr. C. H. Taylor) appeared for the Crown, and the prisoners conducted their own case.

Christie addressed the Court on the points raised in the case on appeal. He asked that their appeals be heard patiently and attentively. He said that they made their appeals because of the manner in which the prosecutions developed from the beginning, and the difficulties that faced them in their defence. He recited the main events leading up to the trial in the Supreme Court, and repeated that until the day of the trial they did not know what were the passages in the copies of the “People’s Voice” found at their residence which the Crown alleged to be subversive. There had been no attempt on the part of the Crown to prove that the paper was subversive, and this question had been left entirely to the judgments of individual jurymen. As to their first point, that the consent of the Attorney General, which eventually was obtained, did not extend to the charge on which they were convicted, and the second point that that consent was obtained before the laying of the charge on which they were convicted, Christie pointed out that the Public Safety Emergency Regulations, 1940, under which they had been prosecuted, expressly provided by regulation 3 that no prosecution for an offence under these regulations could be commenced without the consent of the Attorney-General being obtained. They were arrested, he said, and charged with publishing a subversive statement, and on that charge alone were committed for trial. After the consent of the Attorney-General had been obtained to that particular charge, three further charges were added by the Crown in the Supreme Court, including that of attempting to publish a subversive statement, the charge on which they were eventually convicted. He submitted that as the charge on which they were convicted had not been laid when the Attorney-General’s consent was obtained, it could not be said that the Attorney-General’s consent had been- obtained to the charge of that particular offence, and therefore the conviction in respect of it could not stand. As to their allegation that they had been hampered in their defence by the fact that the indictment did not state the passages on which the Crown relied, Christie reiterated that it was not until Mr. Donnelly addressed the Court that they knew of those passages, and he contended that it was impossible to prepare adequately for their defence. Christie then turned to the sum-ming-up of Mr. Justice Northcroft at the trial, and alleged that that, summing-up misled the jury in its treatment of the elements necessary for an “attempt” to commit an offence. ■ He submitted that the trial Judge had confused “attempt” and “intent.” He submitted finally that the mere fact that copies of the “People’s Voice” were found in their possession did not establish an attempt to publish those documents. OSTLER’S ADDRESS. Ostler, addressing the Court, said that last Monday, when the fixture for hearing the appeal was made, the Court had said that the prisoners should have every facility to prepare their case. Those facilities had not been given them. The Chief Justice interrupted to say that the Court could not go into that question, as the Crown had no notice of the complaint', and no opportunity of denying it. Mr. Taylor said that his answer would be direct denial.

Continuing, Ostler amplified the points made by Christie, and said that the reason why the provision had been put in the regulations requiring the Attorney-General to consent to the institution of proceedings was that the Government, mindful of former years and prosecutions during the last war, wished to retain control of prosecutions under the regulations rather than have them in the hands of the police or Crown prosecutors. The provision in the regulations under review was explicit, and as the consent of the Attorney-General had not in fact been obtained to the charge of “attempting to publish” the conviction could not stand.

Turning to the appeals against the sentences imposed on them, Ostler submitted that in a country such as New Zealand, fighting for the principles of democracy, the publication of any opinion, however incorrect it might be thought to be, ought not to be punishable. He asserted that Christie and he should not have been punished as ordinary criminals; but merely prevented from doing or continuing to do what they believed to be right, but which the regulations said was illegal. That could have been done by admitting them to probation on certain terms. “We submit,” he said, “that honesty and sincerity of purpose should be taken into account in fixing the penalty, and if that is done the sentence imposed must be considered excessive.”

SUBMISSIONS FOR,THE CROWN.

Mr. Taylor submitted that a consent given by the Attorney-General to a charge of publishing a subversive statement in law amounted also to a consent to charges of attempting to publish a subversive statement, or having in one’s possession certain documents with a view to facilitating the publication of a subversive statement. He quoted authorities in support of his submission. Mr. Taylor submitted that if any difficulty arose in construing these regulations, they should, in view of the acute danger with which the State was threatened, and in view of the fact that the regulations were passed for the preservation of the safety of the State, be construed in a benevolent manner viewed from the point Of view of the

State, and that the Court should have regard to the safety of the State rather, than the rights of the individual. The reason why the regulations require the consent of the At-torney-General was not the reason put forward by Ostler, by rather that no prosecution should be instituted until careful and proper consideration had been given to the matter by the proper authorities. By this method vexatious and frivolous prosecutions were avoided. When Mr. Taylor turned to the question of lack of information given in the indictment, the Court Fndicated that it did not wish to hear him on that point, as the Crimes Act was definitely against the prisoners. .As to the prisoners’ appeal against the sentence, Mr. Taylor said that a perusal of the issue of the “Peoples Voice” which was the subject of the charge showed the type of opinion and viewpoint which accused were attempting to publish, and the public interest demanded that people who attempted to publish such views should be put within the limits of the law in places where they could not publish -■ The Chief Justice: If you carry that to its logical conclusion the regulations should provide that anyone guilty of publishing a subversive statement should be imprisoned for the duration of the war. The prisoners, continued Mr. laylor, had urged that as they were in earnest and conscientious, they should receive lenient treatment; but the fact that they were conscientious and determined in their views led to the belief that they were more likely for that reason to spread their views. He contended that probation was out of the question. The Chief Justice: Would you say that subversion, or an attempt at subversive activities, was assisting His Majesty’s enemies in the war in any manner? , Mr. Taylor: Yes, most certainly. The Chief Justice. Then that is treason. I asked you that because I think that the public should know the real nature of these acts, whicn in the regulations are called subversion. Some, I don’t say these cases, may go dangerously near treason. The Court adjourned until to-mor-row. AN EARLY DECISION. WELLINGTON, March 18. The hearing of the Ostler and Christie appeals was resumed this morning. Ostler, addressing the Court in reply to the Crown, contended that the Crown’s case rested entirely on Section 394 of the Crimes Act, which provides that, where the complete commission of the crime charged Js not proved, but the evidence establishes an attempt to commit that crime, accused may. be convicted of such an attempt, and punished accordingly. That argument, however, he submitted, overlooked the fact that the regulations under which he was charged distinguished between commission and attempt, as separate substantive offences, and the Crown at the trial at Christchurch treated them as separate offences, and laid separate charges. Ostler was dealing again with th? question of penalty when the' Chief Justice said: “You are an educated young man. Assuming for the moment that you fail on these legal points that the Court has to consider, can you not even now see the enormity of these offences against these regulations?” Ostler: “I’m afraid that that is a question which I find it difficult to answer on the spur of the moment.” Sir M. Myers: “Very well.” When Ostler finished his address, Christie was asked by the Court whether he wished to add anything. He replied that he did not. The Chief Justice then said that the prisoners would be required in Court to-morrow or the following day. In view of the statements made yesterday by Ostler, he, with the concurrence of the other members of the Court, had communicated with Mr. Justice Northcroft, who would let them know what he had to say about the misdirections which Ostler alleged had been given to the jury at the trial. If Mr. Justice Northcroft’s answer rendered it necessary, the Crown Solicitoi and th—prisoners would be sent for. In the meantime, judgment would be reserved, and the prisoners would remain in Wellington. The cases would be disposed of in the present week.