Magistrate’s Court Discretion Exercised For... (Press, 22 July 1967)

On 22 July 1967, in a notable case at the Magistrate's Court, the Senior Magistrate H.J. Evans exercised his discretion when vacating convictions against two men charged with committing indecent acts upon each other. The offences occurred on 29 June, and both men had pleaded guilty. Despite the convictions, the men were discharged without conviction under section 42 of the Criminal Justice Act, but were required to pay $30 each towards the prosecution costs and undergo psychiatric or medical examinations as directed by the senior probation officer within the next two years. In his ruling, Evans highlighted that the acts were consensual and took place in private, with no public corruption involved. He pointed out the "heavy overtones of blackmail" surrounding the charges, as they were based solely on the men's admissions to the police. While the law permitted a maximum sentence of five years’ imprisonment for the offences, the magistrate argued that adhering strictly to maximum sentences would overlook significant shifts in public opinion regarding homosexual acts, particularly following the Wolfenden Report in 1957, which initiated discussions around decriminalising such activities. Evans noted that on the day one defendant was charged, the House of Commons in England was advancing legislation to amend the law, allowing consensual homosexual acts in private between adults to be decriminalised. He also recognised that leaders of the Established Church in England supported this legal reform. Evans observed that changes were also emerging in New Zealand, including the abolition of flogging as a punishment for sexual offences in 1941 and a reduction of the maximum sentence for homosexual acts from ten years to five years in 1961. The magistrate expressed the importance of acknowledging societal shifts and responsible public opinion that echoed what was happening in England. He regarded Section 42 as providing the court with the necessary flexibility to respond to these changes. Evans understood that using this section to discharge a defendant without conviction was a rare exercise of discretion and not a right claimed by defendants. He acknowledged that other magistrates might view the case differently, underlining that his decision was based on what he deemed just and appropriate, especially in light of prevalent societal prejudices associated with homosexuality. Ultimately, Evans sought to balance his obligation to the law with a recognition of evolving public sentiment, contributing to the ongoing discourse around the treatment of homosexual acts within the justice system.

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