MAGISTRATE’S REPLY

Greymouth Evening Star, 10 August 1946, Page 6

MAGISTRATE’S REPLY

EXCEPTION TO REMARKS BY JUDGE - TREATMENT OF SEAMAN (P.A.) AUCKLAND, August 9. Strong exception to remarks by Mr Justice Finlay in the Supreme Court yesterday when dealing with Edgar Randolph McKinnon, aged 17, were taken by Mr. J. H. Luxford, S.M., in the Magistrate’s Court to-day. Also on the Bench was Mr. F. H. Levien, S.M., who concurred with Mr. Luxford’s statement and added that he had always been a firm believer in the fundamental principle of British justice of “hearing the other side before criticising anyone.” Mr. Luxford said: “There are two matters to which I take strong exception. First, his Honor has , seen fit to criticise the way in which I dealt with McKinnon when he appeared before me on a charge of unlawfully landing in New Zealand, he being a prohibited immigrant. In my opinion, a Judge has no right to comment on a sentence passed by a Magistrate unless on an appeal from that sentence or unless the Judge has first been correctly informed of the circumstances of the case and the reasons upon which the Magistrate based his decision. Abrogation of Rule. “To enable him to do so, courtesy at least demands that he should request the Magistrate to supply him with an explanatory memorandum. Failure to make such a request before his Honor criticised me is not only a breach of courtesy, but abrogation of the fundamental rule that no person should be condemned without being heard. “The other matter to which I, and, I think, every member of the Bench will take exception, is his Honor’s attempt to excuse what he refers to as the ‘six months’ sentence’ 1 imposed. As I will explain presently, 1 never imposed a sentence of .six months’ imprisonment at all. His Honor said he knew that under the pressure of Magistrate’s Court business it was not always _ possible to give cases the same consideration as they were given in the Supreme Court. That, statement implies that Magistrates generally send people to prison because they, the Magistrates, have not sufficient time properly to consider what sentence should be imposed. Let me assure his Honor and the public, speaking for myself and the Magistrates of Auckland, that he is mistaken. “How many Judges of the Supreme Court, deal with an offender in thenprivate room so that they can speak more plainly to the offender and give advice to him which could never be given in the ordinary courtroom? Yet Magistrates find time to do this in proper cases after they have received and considered the probation officer s report. And very good i esults have been achieved. Facts of the Case.

“In conclusion, I wish briefly io refer to the facts of McKinnon’s case. McKinnon is a citizen of the United States of America. He arrived in New Zealand as a member of the crew of a ship, but deserted the ship in Wellington, for which offence he was sentenced to 14 days’ imprisonment. Whether such a sentence was justified or not I do not know, because 1 do> nm know the circumstances. As McKinnon had no permit under the Restriction of Immigration Act, the Customs authorities very properly had him arrested and charged with a breach of the act. “When McKinnon came before me, I obtained a report from the Probation Officer, who informed me among other things that he had been m touch with the American Consulate but that the Consulate was not able to do anything to assist McKinnon. After referring to the relevant statutory provisions, Mr. Luxford said, he was bound to make a deportation order and to order McKinnon to be detained until he was deported.Mr Justice Finlay had incorrectly stated that McKinnon had been sentenced to six months’ imprisonment, Mr. Luxford added, and had omitted to state that McKinnon was also held m custody awaiting sentence for a serious criminal offence, also that McKinnon had been charged in connection with being in possession of a lethal weapon an automatic pistol, “all of which causes me to . resent and protest against the learned Judge’s criticism, Mr. Lux ford concluded. _