Supreme Court Judge Reverses Determination Of... (Press, 2 September 1967)

On 1 September 1967, the Supreme Court of New Zealand, presided over by Mr Justice Macarthur, reversed the decision of a magistrate who had vacated the convictions of two men, David Michael Smith (22) and Donald Wilson Cock (44), on homosexual charges. The magistrate, Mr H. J. Evans, had exercised discretion under the Criminal Justice Act to discharge the men after they pleaded guilty to committing and permitting indecent acts upon one another. Justice Macarthur ordered a rehearing of the charges, expressing doubt over the legitimacy of the original vacation of convictions. In his ruling, Justice Macarthur highlighted that the magistrate had mischaracterised the charges, which involved acts committed in a public park bathroom rather than in private. He also pointed out that the magistrate had noted the case’s “heavy overtones of blackmail,” indicating that the circumstances were not as straightforward as consensual acts between males in private homes. The Justice stressed that magistrates and judges are bound to enforce existing laws rather than speculate on potential legislative changes. Justice Macarthur noted the magistrate's consideration of societal trends towards decriminalising such acts. However, he firmly stated that it is the role of Parliament to change the law, not that of the judiciary, and that the magistrate had erroneously acted as if the law would soon change in favour of the accused. In light of this, the Justice concluded that the original determinations made by the magistrate were flawed, necessitating a reversal and a return of the cases to the Magistrate’s Court for a proper rehearing. Additionally, Justice Macarthur addressed the matter of suppressing the accused men’s names. Despite some consideration for non-publication, he clarified that there were no substantial grounds to warrant such suppression and rescinded the previous interim order against publishing their identities. (The order deemed that privacy could only be upheld under very exceptional circumstances, which he did not see applicable in this case.) The case thus highlights the complexities surrounding the legal treatment of homosexual acts in 1960s New Zealand, reflecting broader societal attitudes and the limits of judicial discretion within the constrained framework of existing laws. Justice Macarthur's decision underscored the necessity of adhering to legislative mandates while recognising the evolving public discourse regarding homosexuality. The hearings and subsequent rulings surrounding Smith and Cock's case would contribute to the ongoing dialogue about reforming laws related to sexual orientation and behaviour in New Zealand.

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