PRISONERS’ CASE

Gisborne Herald, Volume LXVIII, Issue 20507, 18 March 1941, Page 2

PRISONERS’ CASE

OSTLER AND CHRISTIE FULL COURT APPEALS CONVICTION OPPOSED SUBVERSION CHARGES (P«r Presa Associivtion.) WELLINGTON, this day. The Full Court yesterday heard appeals by Harold Alexander Ostler and Travers Burnell Christopher Christie from the conviction recorded against them at Christchurch on February 13 of attempting to publish a subversive ttaterr eni and the sentence of 12 months' hard labour imposed by Mr. Justice Northcroft on each of them. Mr. C. H. Taylor, Crown solicitor.

appeared for the Crown and the prisoners conducted their own case. Christie asked that their appeals be heard patiently and attentively. He said they had made the appeals because of the manner in which the prosecutions had developed from the •beginning and the difficulties that faced them in their defence. He recited the main events leading up to their 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 jin their residences which the Crown alleged to be subversive. There had been no attempt on the part of the Crown .to prove the paper was subversive and this question had been left entirely to the judgments of individual jurors. Question of Consent 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 prior to laying 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 those regulations can 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 nad 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 AttorneyGeneral’s consent was obtained it could not be 1 said that the AttorneyGeneral’s consent had been obtained to the charge of that particular offence and, therefore, the conviction in respect of it could not stand. “Hampered in Defence”

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, ihe reiterated that it was not until the Crown Prosecutor, Mr. A. T. Donnelly the court that they knew of those flksages, and contended that it was iiupbssible tp prepare adequately for their defence. Christie then turhed to the sum-ming-up of Mr. Justice Northcroft at the trial and alleged that that sum-ming-up had misled the jury in its treatment of the elements necessary for an “attempt” to commit an offence. He said 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 t n their possession did not establish an attempt to publish those documents. Ostler, addressing the court, said that last Monday when a fixture for the hearing of 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 to them. The Chief Justice, Sir Michael Myers, 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. Direct Denial The Crown solicitor, Mr. Taylor, said that his answer would be of direct denial.

Continuing, Ostler amplified the points made by Christie and said that the reason why the provision had been put irt the regulations requiring the Attorney-General’s 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 tne 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 burs fighting for the principles ot democracy, the publication of any opinion, however incorrect it may be tnought to be, ought not to be punishable, He asserted that Christie and he should not have been punished as, ordinary criminals, but merely pretented 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 io probation on certain terms. Crown Arguments "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. Mr. Taylor submitted that a consent given by the Attorney-General to a charge . of- publishing a subversivestatement in law amounted also to a cdhsent 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 cl the acute danger with which the State was'threatened and in view ol' the fact that the regulations were passed for the preservation, of the safety of the State.bc construed in a benevolent, manner, viewed from the point ol view of the State and that the cou’ - . should have regard to the safety ol the State rather than the rights of the individual. The reason why the regulations required the consent of the Attorney-General was not the reason put forward by Ostler, but

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 indicated that it dicl not wish to hear hint on that point as the Crimes Act- was definitely against the prisoners. Type of Opinion Shown As to the prisoners appeal against the sentence, Mr. Taylor said a perusal of the issue of the People’s Voice, which was the subject of the charge showed the type of opinion and the viewpoint which the accused were attempting to publish and 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 them. 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. Taylor, 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 would lead 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 which in regulations lire called subversion. Some, I don’t say these cases, may go dangerously near treason. The court adjourned until to-day.