HABEAS CORPUS ACTION.

New Zealand Herald, Volume LX, Issue 18411, 29 May 1923, Page 9

HABEAS CORPUS ACTION.

APPEAL AGAINST ARREST.

QUESTION OF PROCEDURE.

RULE NISI DISCHARGED.

The case of a man at present serving a sentence in Mount Eden ; gaol, ~ who alleges that there was a flaw in the proceedings preceding the issue of the warrant for his arrest, and that he was, therefore, improperly imprisoned, came before Mr. Justice Stringer in, the Supreme Court yesterday. The prisoner concerned is Robert Whitten (Mr. Hogg), who, on February 23 last, was convicted at Paeroa on a charge of sending offensive letters to George Buchanan (Mr. A. Hanna), and was then ordered to find sureties for his future restraint from sending such letters. These were not forthcoming and seven days later he was arrested and taken to Mount Eden gaol. The alleged flaw in the proceedings was that no minute of the conviction was served on him prior to his arrest. The case recently came before Mr. Justice Herdman, who made a rule nisi, calling upon the gaoler of the prison to show cause why a rule absolute should not be made for the issue of a writ of habeas corpus. Mr. V. R. Meredith appeared for. the gaoler, and' at the outset Mr. Hanna intimated that, incidentally, be represented the justices of the peace by whom prisoner was convicted, as well as complainant. ~' ;■ Mr. Meredith admitted that no minute or copy of the order was served before the warrant was issued or before arrest, but he pointed out that the man was in Court when the order was made.

Mr. Hogg contended that under section 113 of the Justices of the Peace Act, 1908, a minute or copy of the conviction must be served on accused. ;

His Honor: Why should a minute be necessary in cases where a man is in Court. He may be removed straight away. - . .■ • • Mr. Hogg submitted that the reason was that in the hurried procedure a layman could not be expected to grasp the interpretations of an order. He contended that > prisoner had not waived the serving of the minute. Mr. Hanna submitted that even if it were necessary for any minute or memorandum to have been served the man concerned was present and the order was pronounced in his hearincr, and, therefore, there was no necessity for the minute to be served. ' ' '<■•''<■ "'.,'.-' •' -' ■' ~

Mr. Meredith helcfjthat sections 113 and 114 of the Justices of the Peace Act did not cover the present case. Further, those sections did not anply to any complaints for sureties of the peace. His : Honor discharged the rule nisi on the ground that section 113, requiring a minute to be served before a warrant was issued, did not apply to the specific part of the Act ' dealing with sureties of the peace. , He allowed £7 7s costs for the Crown. ~'■■"■-'.' "'.; •. <■