The Hogan Case

Hutt News, Volume 18, Issue 34, 29 November 1944, Page 5

The Hogan Case

SEVEN DAYS SENTENCE

magistrate;'s finding

| On Wednesday last at the Magistrate's Court in l'etone, Mr. A. E. Dobbie, S.M., delivered his reserved decision in the Hogan Case as a result of which John Hogan was sentenced to seven days hard labour. In tLu course of delivering his very lengthy decision the magistrate s.i id : "The history of the case Is as follows:—111 1911 the defendant who was 25 years of age came to New Ze.-.i'and. In June 1942 he enlisted in the Air Force but was not called for service. On or about 9th July 1942 he enrolled in the General Re-

serve under the National Emergency Regulations 1940. On the 15th September 1942 he was gazetted for military service. On' the 28th September 1942 he was medically examined and graded 11. On 2nd August .1913, then a resident of Auckland, he was directed to employment with James Hardie and Co. at Auckland. He appealed from this direction and it was withdrawn. On the 27th Octo ber 1943 he was directed to employment with Reid (N.Z) Rubber Mills Ltd., at Auckland. He appealed from this direction. On the 11th November 1943 the appeal was allowed with this reservation 'Appellant to be under the direction of the of the District Manpower Officer, Wellington.' In his evidence on this present charge he admits that at the hearing of the appeal he said 'He could be directed and that he was willing to report for direction.'

In February 1944 he came to Lower Hutt and reported to the Manpower Officer. On the :24th March, 1944 he was directed to employment in a factory at Petone. He appealed against the direction and the appeal was dismissed. He was later prosecuted and the charge was dismissed. On the loth June 1944 the previous direction was withdrawn and on the same day he was directed to employment with the Wellington W r oollen Manufacturing Co. Ltd., at its Mill, Hutt Road, Petone. This direction is the subject of the present charge. On the 22nd June, 1944 he appealed from this direction on the grounds of hardship and public interest. On 10th July 1944 this appeal was allowed. On 17tli July 1944 by memorandum directed to him, he was called upon to carry out his direction and in such memorandum it was pointed out 'that a failure to do so was an offence under the Industrial Manpower Emergency Regulations 1944 punishable upon summary conviction to a fine not exceeding £50 or to a term of imprison ment not exceeding three months.' On 19th September 1944 he applied to the Controller of Manpower for rehearing of appeal and on the 21st September 1944 this was declined. On 2t>th September .1944 he applied to the District Manpower Officer, of Lower Hutt to withdraw this direction. On 28th September 1944 the District Manpower Officer refused to withdraw the direction and notified defendant accordingly. On 29th September 1944 defendant appealed to the Manpower Committee against the decision of the Manpower Officer not to withdraw the direction. This

appeal was dismissed. On 2nd October 1944 defendant was notified again by the District Manpower Officer 'that his request for release from direction and appeal against his decision thereon did not affect his liability in respect of any offence committed against the Industrial Manpower Regulations 1944, and that nis obligations under the Regulations pending the hearing of the appeal were in no way suspended.' The direction not only requires him to report for engagement in the work selected therein but also to continue' in such employment. To convict the defendant I must be satisfied: (a) That the defendant is a person who could be directed to employment; (b) That he was so directed; (c) That he has failed to comply with such direction; and (d) That he had no justification or excuse for such failure The defendant in cross examination says: "Appeal was allowed because I was going to take up residence in Wellington and to report to District Manpower Officer for direction. I said that I could be directed and was willing to report for direction." It is clear then from defendant's admission that he was a person who .could be directed. It is also demonstrably clear from the evidence that he was so directed to employment and that he has failed to comply with such direction. The only point left is did he have any 'lawful justification or excuse' in failing to com. ply with such direction'/ Has the defendant proved any lawful justifi-

cation or excuse? Briefly the defendant sets himself up as the judge of his own case. He says his direction is not warranted, but gives 110 evidence to support it, whereas there is evidence that the man.power problem in the Hutt Valley is so acute that even his direction is more than necessary—it is essential. On the one hand he says he is willing to be directed, and when he is directed he says his direc tion is not warranted. He further states his direction was not in accordance with the usual policy and procedure of the Department, Mr.

Bockett, the Controller of Manpower in his evidence states 'The policy of the Department is that men who art, called up and passed medically unfit for military service should be the first for direction to essential industry." This is a natural policy because if a man is unfit for military duty why should he not serve his country in some other capacity. It is to be remembered that defendant was originally directed on the 2nd. August 1!)43 and up to the present he lias escaped complying with four such directions. There is no evidence that his direction did not follow the usual procedure of the Be partment. The defendant's last statement is that it was initiated by other motives than the manpower needs of the country. There is not one tittle of evidenc that it was initiated except in the ordinary course of u business of the Department. There is evidence of the acute shortage of men for essential industry in the Hutt Valley.

Defendant came from Australia and if he intended tp reside here permanently he was required to register for military service within one month. If he did not intend to reside here permanently he was required to register within one year. When he had been here for some months and had not registered the Police inquired about his non-regis-tration and about two weeks after the expiration of one year's residdence he registered. This naturally brought his case prominently before the National Service Department. Mr. Bockett in his evidence states: ,'This case came under special notice of Head Office by reason of the defendant's failure to register for military service when obliged to do so.'

He was not directed until he had been called for Army by ballot in the ordinary course and passed unfit for military service. There is no evidence that his first and three subsequent directions were made other-

jvise than in the ordinary course of routine business of the Department. I am clearly satisfied that the direction, the subject of this charge, was made by the District Manpower Officer at Lowfer Hutt honestly anc, fairly in the ordinary course of his duties. On these grounds I find that the defendant has no lawful justification or excuse in failing to comply with the direction the subject of this charge. He will accordingly be convicted. It has now become my duty to enforce the law and impose such sentence as will be not only a punishment to the defendant but also a deterrent to others. In June 1943 in an appeal against a direction to employment the defendant stated he was willing to ; directed and doubtless that fact was then taken into consideration in allowing the appeal. * Since then the defendant has received two further directions and up to the present he has evaded compliance with both of them. A direction to an essential industry is a wartime measure which no Court can allow to be frustrated. The defendant has a wife and three young children and I take this int< consideration, but a monetary penalty is not appropriate where offences are committed deliberately and with indifference. The defendant will be sentenced to seven days' imprisonment with hare 1 , labour.