Bookmaker’s Appeal Against Sentence Of Imprisonment

Greymouth Evening Star, 25 May 1949, Page 10

Bookmaker’s Appeal Against Sentence Of Imprisonment

AUCKLAND, May 24 (P.A.).— Submissions were heard on behalf of a sentencing magistrate by Mr Justice Finlay in the Supreme Court today. The appeal brought by Waltei* Preston, aged 65, an agent (Mr A. H. Johnstone, K.C., with him Mr B.

Hart), was reopened. Preston had previously appealed against a sentence of six weeks’ imprisonment imposed by Mr J. H. LUxford, S.M., for bookmaking and -decision had been reserved.

Mr A. Moody represented the Magistrate and Mr G. S. R. Meredith appeared for the Crown. Giving a summary of the appeal case, his Honor said he understood Mr Johnstone had based his appeal in part on the submission that the Magistrate imposed sentence on a wrong principle and in support of this submission had read a newspaper report of what the Magistrate said at the original hearing. This had not been questioned by the Crown and had been accepted as a correct statement.

Immediately after hearing the appeal, his Honor said, he received a memorandum from the Magistrate in which the Magistrate emphasised his right to be heard under section 330 of the Justices of the Peace Act and drew attention to the fact that he had not been notified of the appeal. Request For Rehearing

His Honor added that it was immemorial practice not to advise magistrates. The Magistrate also said in his memorandum that, as the submission by appellant’s counsel amounted to an allegation of improper judicial conduct on his part, he would ask for the appeal to be reheard. After quoting legal authorities, his Honor said there was an objection of the Court in hearing judges or magistrates in support of their sentences. He thought it wrong for a magistrate to appear. He considered the Magistrate was on delicate ground and, although the canons of the law must be observed, it was the first time he had ever heard of a magistrate’s wanting to be heard in support of his own sentence. Mr Johnstone said the Magistrate had taken a wrong view of his attitude toward him. He had not suggested, and would not, that the Magistrate was not impartial, but he was not infallible.

His Honor agreed that there was no suggestion of lack of impartiality in counsel’s submissions.

For the Magistrate, Mr Moody said the Magistrate felt that some attack had been made on him. He agreed that it would be presumptuous for a magistrate to appear in support of a sentence, but possibly reports of the case published in the press had given rise to the present position. Magistrate’s Report Counsel handed in a report to the Court inAvhich the Magistrate said he had not been influenced by the referendum oi' public clamour or any financial circumstances when sentencing Preston to prison. [ His Honor: What the Magistrate now says is: “Yes, I said all that (the newspaper report) but, although I said it, I was not influenced by it.” What does that mean exactly? Mr Moody: The Magistrate probably elaborated, instead of sentencing him to imprisonment straight out. Although he mentionel the accused’s age and the referendum he was not I influenced by it. Mr Johnstone said there was no serious challenge against the case presented to his Honor and the Crown had not taken exception to reading the Magistrate’s statement in the press.

“Whatever a judicial officer says to an accused in sentencing him is to tell the accused why sentence is being imposed,” said his Honor. “The Magistrate now says what he said before but says he was not influenced by it.”

He reserved his decision in the ap- \ peal.