SUPREME COURT

Southland Times, Issue 23969, 8 November 1939, Page 4

SUPREME COURT

PRISONERS APPEAR FOR SENTENCE APPLICATION FOR NEW TRIAL REFUSED An application for a new trial in the case in which James Myles Ford was found guilty of indecent assault on a female was made by Mr G. C. Cruickshank in the Supreme Court, yesterday before his Honour Mr Justice Ostler. Mr Cruickshank said the application was made on the ground that the verdict of the jury was against the weight of evidence. The defence was that there was consent on the part of the girl, ana the Judge had directed the jury that u it was satisfied that the /girl consented, that was a defence to the charges of rape and indecent assault. The. jury, having found the accused not guilty of the charge of rape, apparently concluded that there was consent on the part of the girl. '. His Honour: Why do you say it must have concluded consent? ' Counsel submitted that on the evidence before the Court the verdict should have been rape or nothing. His Honour: It is a curious argument that the weight of evidence was such that the jury should have found nun guilty of the more serious offence. The jury was directed that the onus lay with the Crown to prove that there had been no consent. It must have found that there had been no consent, but instead of finding the man guilty of rape, I suspect it mercifully decided to find him guilty of the less serious offence. There is.ample evidence to. support the verdict and I cannot say it is against the weight of evidence. Mr Cruickshank said the prisoner was 22 years of age, and, as the probation officer had said, his mother had died about 15 months ago. It was unfortunate that' since that time the prisoner appeared to have led ,an irregular life. It had been suggested that he had been drinking heavily, and this had resulted in his lapse. • The prisoner was sentenced to 18 months’ reformative detention. His Honour said the prisoner could, after nine months, apply to the Prisons Board to have his sentence reviewed. TWO YEARS’ PROBATION

Charles Henry Smith, who was found guilty of indecent assault on a female, appeared for sentence. Mr Gordon J. Reed said he had had an opportunity of reading the doctors report and also the report of the probation officer. There was little he could add. The prisoner was only 28 years of age and had been married nine or 10 months ago. The probation officer recommended that he should be imprisoned, but with all deference to the probation officer and the Court counsel suggested that the man could be dealt with in some other way than, by imprisonment. The offence w as in many ways a foolish one, and was not of the grosser type. “The man seems to have been, more of a fool than anything else,” said Mr Reed, “and a fact which seems to be indicative of that is that between the last Court and the present the prisoner actually enlisted, passed the medical test, and was ordered to go into camp. He told the police he was ordered away, little realizing apparently, the great seriousness of his offence.” Counsel asked what good it was going to do to send the man to prison. A man like that could be Just as easily dealt with by putting him under the surveillance of the probation officer. In reply to a question' from his Honour the prisoner said his wages were £4/7/10 a week. “It was extremely foolish on your part, when you had made a clean breast to the police to get into the box and tell the jury a lot of lies,” said his Honour, addressing the prisoner. “However, I am not going to punish you for that. It is the duty of the Court to protect the public and the community, and the Court cannot tolerate frightening women the way you have done. Nevertheless, I am anxious to save you from prison and help you to conquer this weakness and to become a decent citizen. The fact that you made a clean breast to the police shows that you recognize the seriousness of your offence, and I am going to give you a I chance, but if you make a nuisance of yourself in this way again, nothing will save you from prison.” The prisoner was sentenced to two years- probation, and was ordered to pay the, costs of the prosecution. BREAKING, ENTERING AND THEFT “You have had your chance,” said his Honour in sentencing Reginald Cooper to reformative detention for a period not exceeding two years for breaking, entering and theft. His Honour said the prisoner had had several convictions, and he did not see that there was anything for him to do except to sentence him to reformative treament “If you behave yourself in prison,” he added, “you can cut that almost in half.”

APPEAL DISMISSED George Finn, butcher, of Orepuki, appealed from the decision of the Magistrate in favour of W. G. T. Lemon, carrier, of Tuatapere, for the sum of £5l/7/6 damages arising from a motor collision. The case was heard in the lower Court at Riverton on July 4. Mr J. C. Prain appeared for the appellant Finn, and Mr T. R. Pryde, instructed by Mr K. M. Dalglish (Tuatapere), for the respondent Lemon. After hearing legal argument his Honour said he was satisfied from the evidence that the Magistrate had reasonably found that Finn, in moving across to his right at an angle, was negligent. “I think the Magistrate is right in saying that the real cause of the accident was the'appellant’s neglifence,” said his Honour, “and that the respondent was put in a position of peril and did all a reasonable man could be expected to do in the emergency.” The appeal was dismissed, with £B/8/- costs. NON-SUIT REFUSED. A motion for a non-suit in the case heard last week in which the jury awarded Charles Victor Nye, a motor mechanic, damages amounting to £5OO/2/1 against Herman Nortmann, farmer, of Lora Gorge, the claim arising from a collision on June 26, 1938, was dismissed. During the hearing of the case Mr Eustace Russell asked for a non-suit and the point was reserved for a special hearing. When this was taken Mr Russell submitted legal argument on the point. Mr J. C. Prain, counsel for the plaintiff, was not called on by his Honour to reply. He moved for judgment in accordance with the jury’s verdict for £5OO/2/1 for plaintiff, together with disbursements and witnesses’ expenses, and judgment was granted. IN DIVORCE

Robert Hugh Dixon (Mr G. M. Broughton) petitioned for divorce from Mavis Madeline Dixon on the grounds of failing to comply with a decree for restitution of conjugal rights. A decree nisi was granted, to be made absolute after three months.

Edward Neville Aslin (Mr T. R. Pryde) was granted a decree nisi against Rero Arnold Aslin on the ground of failing to comply with a decree for restitution of conjugal rights, the decree to be moved absolute in three months.