NO LEAVE TO APPEAL

Wanganui Chronicle, Volume 88, Issue 95, 22 April 1944, Page 5

NO LEAVE TO APPEAL

MAN UNDER LIFE TERM FOR MANSLAUGHTER IMPORTANT DECISION AS TO COURT PROCEDURE <P A.) Wellington. April 21. The Court of Appeal gave judgment for both divisions to-day in the Crown V. Neiling ease. On March 27 ninejudges, constituting both divisions of the Court of Appeal, heard re-argu-ment in an appeal by Neiling against sentence of lite imprisonment, with hard labour, for the crime of manslaughter. The application was for leave to the Court of Appeal to appeal against the severity of the sentence imposed by the Chief Justice, Sir Michael Myers. The prisoner, 14 days after sentence, filled in a form seeking leave to appeal. This application was dismissed by the Court of Appeal on July 3, 1941. A fresh application was made by the prisoner’s solicitor in June, 1943, and the Court of Appeal, in July, 1943, heard argument as to whether the second application for leave could be made. In view of the important effect on ‘ procedure in regard to prisoners appeals, a request was made to re-argue the case before both divisions. At the hearing before botn divisions last month, counsel for the prisoner, Mr. W. E. Leicester, contended that the prisonei’ had merely filed in a form, in May, 1941, giving grounds for appeal, and that he was not notified of any hearing date, or of his rights to have submissions made on his behalf by counsel. Mr. Leicester further contended that it was competent for the prisoner to make a fresh application for leave to appeal where a previous application had not been heard and determined on its merits. The soiieitcr-General, Mr. H. H. Cornish, K.C., argued that the calling ot the case in Court, together with the opportunity the prisoner had to make enquiry as to his rights, constituted a hearing, as the judges had carefully considered th e case in private, although no submissions had been made by counsel. Decision was then reserved. The judgment delivered to-day states that the validity of the rules relating to prisoners’ appeals against sentence were made more than 22 years ago, and had been continuously interpreted by judges ot the Court of Appeal as authorising procedure in which a prisoner was not heard before the Court, unless he asked leave for that purpose before his application was dealt with. "Whether a prisonei; in custody is to be present or not and whether he is to call witnesses or not depends on whether he obtains the leave of the Court of Appeal, and that depends on whether he has asked for leave before the disposal of the application,’’ says th e judgment. “Whether or not he is represented by counsel depends, similarly, on whether he has instructed counsel, and whether counsel has appeared before the application has been dealt with. In this case the prisoner had not asked for leave to appear, nor for counsel on his first application, and the judges had considered the application individually and then jointly, and had reached a decision. In the opinion of th e Court decision on the prisoner's first application was pronounced in open Court on July 3, 1941, and was dealt with on its merits, because the judges had considered the application. He could not now make another and the second application for leave to appeal must be dismissed." Leonard Neiling, a labourer, was charged at the Supreme Court, Wellington, with murdering Mrs. Marjory Livingston Horton at Oriental Bay on January 9, 1941. The case lasted four days. The jury returned a verdict of manslaughter. The Chief Justice, Sir Michael Myers, in passing sentence, said he would not take upon himself the responsibility of allowing Neiling at large, even after the fairly substantial term which was usually imposed nowadays for the offence of manslaughter.