The Gisborne Times PUBLISHED DAILY. THURSDAY, AUGUST 11, 1921.

Gisborne Times, Volume LV, Issue 6154, 11 August 1921, Page 4

The Gisborne Times PUBLISHED DAILY. THURSDAY, AUGUST 11, 1921.

WHEN JUDGES DISAGREE! There is a striking lack of agreement amongst the members of the Supreme Court Bench as to the wisdom of a recent ruling by the Court. of Appeal on the question of probation for first offenders. It may be recalled that, in a case before the Court of Appeal, the prisoner had stolen a Savings Bank pass book from his mate and had then committed forgery in order to secure a transfer of the account. An appeal was brought against a decision refusing probation and the Court of Appeal decided that probation had been improperly withheld. Subsequently a case was before Mr Justice Salmond, in which an accused person had received from his employer a cheque for £1 16s in payment of wages, had altered the amount to £lO 16s, and had got a tradesman to cash the cheque for the higher amount. His Honor held that he was bound- by the decision of the Court of Appeal in the other case mentioned to admit the prisoner to probation. What Mr Justice Salmond had to say on the matter was nothing if not to the point—

“The decision of the Court of Appeal (lie remarked) seems to me to amount to this and nothing else: That probation is a matter of course and a matter of right in the case of offences of dishonesty,

unless they are repeated; in other words, every man in this country is entitled to commit one theft or one forgery with safety and remain at liberty. I cannot help -thinking that this is a doctrine unsound and dangerous, .the inevitable result of which is the degrada-

tion of the standard of honesty in this community. Probation, as J regard the matter, ought to be treated as a special privilege, to be granted on special grounds and in special cases.”

The position has been commented on by other members of the Supremo Court Bench, but the most interesting explanation is that which lias just been given by Mr Justice Hosking at Palmerston North. His Honor’s remarks were as follows:

“The Court of Appeal has laid down no new doctrine. It has not laid down that every first offender shall be released on probation. That everyone would be eiftitled to commit one theft was the objection freely raised when the law was originated, but after the administration of the Act came to be experienced such a deduction was found to be falsified. There has been no such result. There is no rule of practice to warrant it. The Court exercised judgment in regard to each case individually. It does not admit probation without a* report from the probation officer. His business is to inquire into and report upon the character and personal, history of an offender ; also, as to anv other matters affecting the offender that may he required. It is upon the same broad considerations, namely, the best interests of tlie public and tlie offender, that the Court endeavours to guide itself in determining whether it shall or _ shall not adopt the recommendation of the probation officer. Probations are not invariably accepted. The ultimate responsibility is with the

Judge.” An extraordinary .state of affairs, it will be agreed, has ariseu is regard to this matter. Whilst Mr Justice Hosking avers that the ultimate responsibility in granting or refusing probation rests with the Judge before whom a case is tried, the decision of the Court of Appeal in the other case referred to shows that, in fact, it may, on appeal, rest with the higher Court. In the case which he tried, Mr Justice Salmond found that there were “no circumstances of extenuation or excuse,” and said that if he had been allowed to follow his own opinion ho would have “sentenced the prisoner to imprisonment for a term of six months as a protection to the community against thieves and forgers.” Strange to say, whilst Mr Justice Hosking would contend that Mr Justice Salmond has a right to exorcise his judgment in the matter, Mr' Justice Salmond should have felt that, if he did not grant probation, his decision would be upset if an appeal were taken to the Court of Appeal? There must be a grave fault in what should be a simple law, when members of the Supreme Court Bench cannot agree as to its effect, and the Legislature should, as soon as possible, make it plain that license must not be regarded as conferred upon serious crime.