OSTLER & CHRISTIE

Grey River Argus, 18 March 1941, Page 6

OSTLER & CHRISTIE

State Their Grounds SINCERITY OF CONVICTIONS. TECHNICAL QUESTION OF CONSENT. [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 to publish a subversive statement, and The sentence of twelve months’ hard labour imposed by Mr Justice Northcroft on each of them, were commenced in the Court of Appeal, to-day. The Court of Chief Justice Myers, and Justices Smith, Johnston and Fair. Mr C. H Taylor, Crown Solicitor, is appeal mg for the Crown, and the prisoners are appearing for themselves. The case stated, as submitted to the Court of Appeal by Mr Justice Northcroft, discloses that at the trial, prisoners objected to the indictment so far as the charge on which they were convicted was concerned, in that the consent of tne Attorney-General, which was S lvel ] to the prosecution on 1/10/40, did not extend to that particular charge. Further, they objected that the mfoimation was laid before the written consent of the Attorney-General was in fact obtained, and final y that the indictment did not state the subversive statement intended to be relied on bv the Crown. The case stated asks for an opinion of the Court of Appeal on these objceWhen the case was called, Sir M. Myers said there were two matters before the Court: (1) the matters raised by Mr Justice Northcroft pertaining to the conviction itself. aplnication by the prisoners for leave to appeal from the sentences imposed on them. Sir M. Myers called on the prisoners to present their case. Qstler raised the question of tne correctness of the case stated, which, in paragraph six. states that Mr Donnelly stated further that he relied on the paper as a whole. he said he indicated to the solicitors ol the prisoners certain passages of the newspaper to which he proposed, a the trial to draw special attention. These statements of Mr Donnelly were not challenged in any way by the prisoners. Ostler objected to this statement, alleging Mr Donnelly had not in fact made this alleged statement at the trial, and could not have done so, as neither they nor their solicitors had at any time prior to the trial, had pointed out to them the passages on which the relied. Ostler alleged it was not tm Mr Donnelly addressed the jury that they knew the parts of the newspaper on which the Crown was basing its charges. . The Court, after some discussion, noted the objection. Ostler also asked leave to can further evidence with the intention of proving the “People's Voice' had never been declared by the authorities to be subversive or Illegal. The Court refused to permit iuither evidence to be called. Christie then addressed the Court on the points raised in the case on aP Christie asked that their appeals be heard patiently and attentively He said they made the appeals be

cause of the manner in which the prosecutions developed from the beginning, and of difficulties that laced them in their defence. He recited the main events leading up to the trial in the Supreme Court. He repeated that until the day of the tria they did not know what were * the passages in the copies of The People’s Voice” found at their residences which the Crown alleged to be subversive. He said that there had been no attempt on the part of the Crown to prove that the paper ‘‘People’s Voice” was subversive, and that this question had been left entirely ta the judgments of the individual jurymen. Their first point was that consent of the AttorneyGeneral, which eventually was obtained, did not extend to the charge on which they were convicted, and their second point was that consent was obtained prior to the laying of the charge on which they were convicted. As to these points, 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 defence under those regulations could be commenced without the consent of the At-torney-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, which was 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 that, 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 pas-, 1 sages on which the Crown relied, he 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 summing up of Mr Justice Northcroft at the trial. He alleged that that summing up had misled the jury in its treatment of elements necessary for' an “attempt” to~ commit an offence. He said that the trial Judge had con-| fused “attempt” and “intent.” He' submitted, finally, that the mere fact' that copies of “The People’s Voice”j were found in their possession did not! establish an attempt t 0 publish those' documents. I Ostler, addressing the Court, said that last Monday, when the fixture, for hearing the appeal was made.' th"> Court had. raid that the rc'conera should have every facility to pro-

pare 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 such complaint, jnd had had no' opportunity of denying it. Mr Taylor said that his answer would be a ‘direct denial. Continuing, Ostler amplified points made by Christie. He said that the reason why a 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 of prosecutions during the last war,, wished to retain control of piosecutions under regulations, rather than have them in the hands of the police' or the 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 their appeals against the sentences imposed on them, Ostler submitted that, in a country such as ours, fighting for principles of democracy, publication of any opinion, however incorrect it might be thought to be, ought to not be punishable. He asserted that Christie and he should not have been punished as ordinary criminals, but should merely have been 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.” Mr Taylor submitted that a consent given by the Attorney-General to the charge of publishing a subversive statement, in law amounted also to a consent to charges of attempting to publish a subversive statement, or of 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 to 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 frivilous prosecutions were avoided. Then Mr Taylor turned to the question of the lack of information being given in the indictment. The Court, however, indicated that it did not wish to hear him on that point, as the Crimes Act was definitely against the prisoners. As to the prisoner’s appeal against the sentence, Mr Taylor said that perusal of the issue of ‘‘The People’s Voice” which was the subject of the charge showed the type of the opinion and the viewpoint which the accused were attempting to publish, and the public interest demanded that the people who attempted to publish such views should be put within the limits of the law in places where they could not publish. Sir M. Myers: “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 Mi- 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. Si r M. Myers: “Would you say that subversion, or an attempt at subversive was assisting His Majesty’s enemies in the war in any manner ” Mr Taylor: “Yes. most certainly.” Sir M. Myers: “Then that is treason. I asked you that, because I think that the public should know the real nature of these acts which, in the Regulations, are called subversion. Some —I don’t say these cases—may g o dangerously near treason.” The Court adjourned until to-mor-row.