LEGAL ARGUMENT AT WYNDHAM

Southland Times, Issue 25680, 24 May 1945, Page 3

LEGAL ARGUMENT AT WYNDHAM

QUESTION OF BIAS RAISED Whether the Magistrate, Mr R. C. Abernethy, had jurisdiction to deal .with a charge concerning taking liquor into a no-licence district, because he had suggested at a previous hearing that the police should bring the charge, was argued at a sitting of the Magistrate’s Court at Wyndham. The case was one in which Finlay Leckie was charged with aiding and abetting Clement Charles Church in bringing liquor into a no-licence district without an order stating the address and occupation of the purchaser. The defendant, who pleaded not guilty, was represented by Mr A. Smyth. Counsel asked that a previous charge against his client, on which the Court had reserved its decision, should be disposed of before the present case was proceeded with. His Worship thereupon dismissed without prejudice the original charge against Leckie—that of giving an order to Church for liquor without giving the name and address of the purchaser. Mr Smyth said he was not bringing the same defence as in the previous case. His instructions were that at the previous hearing his Worship had suggested to the police that the present charge be brought forward. That being so, he considered such a direction disqualified the Magistrate from hearing the case, as he considered the Magistrate should bring an open mind on the present charge. The Magistrate: Do you suggest that because the Court indicates that the facts prove another charge, the proper course is not to suggest it to the police because it would be regarded as bias. Mr Smyth: I do. The matter should have been left to the police. The power of amendment should be used sparingly by the Court. It is quite competent for a magistrate to say that another charge can be laid, but it is not right for him to sit in judgment on that case.

The Magistrate: Have you authority for that? Mr Smyth read authorities on the question of bias. He added that the Court had adjourned the original charge and suggested that the police bring the present charge. On that account the magistrate was disqualified from hearing it. The point was one of far-reaching principle, said Mr Smyth. Legal argument ensued between the Magistrate and Mr Smyth on the point raised, after which his Worship reserved his decision and asked Mr Smyth to produce written submissions on the point whether the Magistrate had jurisdiction to deal with the charge or not.

The original charge against John McDonald Henry was also dismissed without prejudice, and on the charge of aiding and abetting decision was re-, served.