Counsel Seeks Dismissal Of Manslaughter Charge

Press, Volume XCVII, Issue 28701, 26 September 1958, Page 10

Counsel Seeks Dismissal Of Manslaughter Charge

(New Zealand Press Association)

WELLINGTON, Sept. 25. The hearing of evidence in support of a charge of manslaughter arising out of the washing of a car off the Illoa Point breakwater finished in the Magistrate’s Court at Wellington today but Mr J. B. Thomson S.M., deferred till Monday, his decision whether there was a case foi the accused to answer Counsel for accused, Mr R E Pope, submitted there was not. The accused, Hamish Donald Shepherd, aged 17, a clerk, is charged with causing the death of Thomas Basil Hill, a 17-year-old shipping clerk. At the conclusion of the Crown case, Mr Pope submitted that the evidence was not sufficient to put Shepherd on trial. He said he was unable to cite any case, with facts similar to those of the present ease and. he added, the charge of manslaughter would come as a surprise to the lay mind—it might even come as a surprise to the legal mind. On the facts, no jury would convict Section 171 of the Crimes Act. under which Shepherd was charged, contemplated death arising from use of something in a negligent manner, but this was safe driving of a vehicle

into a place of possible danger to the car’s occupants. The use of the car had nothing to do with the death. The occupants might have walked along the breakwater or got out of the car and stood on the breakwater, and still have been washed off it. What caused Hill’s death was an exceptionally violent wave an act of God.

If the section did apply to the facts. Shepherd had to be shown to have had a guilty mind but there was no apparent danger no warning sign and it was common practice to walk or drive along the breakwater, which was as wide as a country road. AU the facts showed Shepherd did not Ipow there was danger. The fact that there proved to be danger did not show he was negligent. If there was negligence it was not a direct cause of death.

The police prosecutor (Mr F. Q. Scott) said there was authority that a person in charge of something dangerous to human life who did not avoid danger could be guilty of manslaughter. Shepherd was negligent because he saw the sea breaking on the breakwater and the danger was apparent. There was a prima facie case to answer.