“IRRELEVANT AND ILLEGAL.”

Wairarapa Age, 7 October 1926, Page 2

“IRRELEVANT AND ILLEGAL.”

JUDGE’S COMMENT. ON MAGISTRATE’S DECISION. AUCKLAND, October «. “I emphasise the point that the action of the Magistrate was in my judgment irregular, not because he altered his sentence, but because he acted illegally in that his decision was influenced by matters that should not have weighed with him.” Thus Mr. Justice Herdman this morning, when delivering reserved judgment in the Cavenott case. Tho conviction was set aside and the prisoner discharged. The question of costs was left in abeyance. William George Cavenett, on September 8, was found guilty on two charges of theft and was sentenced to two months’ imprisonment on tho first and one month on the second. The application of Mr. J. J. Sullivan for leave to appeal was refused by Mr. F. K. Hunt, S.M., who said: “There is too much appealing. I am going to put a stop to it.” The matter was brought before Mr Justice Herdman in the form of a writ of habeas corpus, and argument was entered into on September 28. His Honour said it had been submitted that tho sentence of imprisonment for one month upon the second charge was illegal, and that Cavenett was being unlawfully detained in prison. The contents of the affidavits, filed In proceedings, were unanimous. upon every detail. It was not doubted that in the first instance the Magistrate’s pronouncement upon the charge of stealing an axe was that the accused would be convicted and discharged. In respect of that charge the man was given his liberty. Next it could not be denied that at a later stage such a decision was altered to a sentence of imprisonment for one month. It was also plain that the Magistrate had altered his decision after the matter of appeal against the sentence of two months’ imprisonment, which he had imposed on tho other charge, had been mentioned. It was evident that the Magistrate intended to make certain that, no matted what the fate of the appeal against the decision on tho first charge might be, Cavenett should suffer imprisonment. Accordingly, he refused to increase sentence of imprisonment for a month by one day so that appeal proceedings could be taken on the second charge. “The evidence proves substantially,” continued his Honour, “that the man was sentenced to imprisonment be cause his counsel had taken a step which inferentially meant that tho correctness of the Magistrate's judgment in another matter would be impeached. It cannot be said that in this case 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 it, but that he dffl not do. The facts, in my opinion, prove that punishment was with deliberation meted out to a man who on one charge had in effect been given his liberty, not for the offence of which he was found guilty, but for a reason was was irrevelant and illegal.”—(P.A.).