FREEDOM FOR CAVENETT

New Zealand Herald, Volume LXIII, Issue 19452, 7 October 1926, Page 14

FREEDOM FOR CAVENETT

HIS CONVICTION ANNULLED

EARLIER DECISION UPSET

SUPREME COURT JUDGMENT

The conviction of William George Cavenett for theft was annulled by Mr. .Justice Herdman yesterday, following an application in the Supreme Court for a writ of habeas corpus to release Cavenett from prison on the grounds that the magistrate, Mr. F. K. Hunt, improperly imposed a sentence of one month's imprisonment,.

" The record of the conviction in this case shows that, accused was sentenced to imprisonment, for one month for stealing an axe, but this is not a, correct statement, of what happened, for if I am to accept the sworn affidavits the punishment was awarded not for that legitimate reason, but for another reason which the, law docs not authorise the magistrate to take into account," said His Honor in setting aside the convic tion of Cavenett.

At the Supreme Court proceedings last week Mr. McVeagh and Mr. Sullivan appeared in support of an application for a writ of habeas corpus for the. release of Cavenett from prison. Mr. Meredith represented the Crown. At the hearng Mr. McVeagh said the applicant was charged in the Police Court, on September 8 before Mr. Hunt with the theft of 12 pairs of socks and the theft of an axe. Mr. Hunt had declared that he would convict Cavenett on the first charge and impose a sentence of two months' imprisonment. In respect to the second charge prisoner was convicted and discharged. The Question of Appeal.

Counsel had then intimated his intention of appealing against the sentence, and tho magistrate had said: "There is too much of this appealing and I am going to put a stop to it." Mr. Hunt had thereupon altered his judgment and imposed a sentence of one month's imprisonment, a term against which there was no right of appeal. This sentence had tho effect of debarring the right of appeal on this conviction.

After referring to two affidavits, His Honor said it was apparent that certain facts were unchallcngable. It was undoubted that, in the first instance tho pronouncement upon the charge of lue theft of the axe was that prisoner should be convicted and discharged- In respect to this charge the man was given bis liberty, but at a later stage the decision was altered. It was plain that the magistrate altered his decision after the appeal had been mentioned, and it was evident that he intended to make certain that no matter what the fate of the appeal Cavenett should suffer imprisonment. " A consideration of the evidence leaves me no option but to decide that the magistrate altered his judgment because it had been announced that an appeal would be made," said His Honor. "To put it in another way, the evidence proved substantially that the man was sentenced to imprisonment not because he had stolen the axe, but because his counsel had taken a step which inferontially meant that tho correctness of the magistrate's judgment in another matter would be impeached," continued His Honor.

Justice According to Law,

" The law should be administered decently and in order, and magistrates aie hound to dispense justice in accordance with the law as it is, and not in accordance with the law as they would wish it to be. The argument in the present case is that there was an illegal exercise of discretion by the magistrate. The magistrate may have had it in his mind to stop appeals in the future or to' make certain that in any event the prisoner would suffer imprisonment. If all or any of these motives influenced his judgment, if seems to me that a discretion was improperly exercised. "It cannot be said that there was a slip of the tongue. It is not an instance of using words in error. If the man stole the axe the limit of the magistrate's discretion was to punish him for stealing the axe, but that he clid not do. The facts, in my opinion, prove that punishment was with deliberation meted out to a man who on onci charge had in effect been given his liberty, not for the offence, but for a reason that was irrelevant and illegal."

His Honor said he would emphasise the point that the action of tho magistrate was irregular not because ho altered a sentence, but because he acted illegally in that his decision was influenced by m;itfers that should not have weighed with him. Tiie affidavits were admissible (o show a want or excess of jurisdiction, although they might directly contradict facts stated in the return which, if true, would show jurisdiction and no excels. It was therefore competent to go behind the conviction at this stage.

The conviction was therefore annulled and prisoner was discharged, Mr. McVeagh raised the ouestion of costs, to which Mr. Meredith objected. His Honor said he would consider the point with counsel later.