CONVICTION QUASHED

Press, Volume XCVIII, Issue 28920, 13 June 1959, Page 15

CONVICTION QUASHED

Cases Heard Simultaneously

(New Zeaiana Press Association) AUCKLAND, June 12.

Holding that the decision of Mr R. M. Grant, S.M., to hear two cases simultaneously amounted to a miscarriage of justice, Mr Justice Gresson, in a reserved judgment in the Supreme Court at Auckland today granted an application by Dennis Charles McCarthy, a bus driver, for a writ of certiorari setting aside the Magistrate’s conviction. Facts recalled by the judgment are that last September a collision occurred between a car driven by McCarthy and another driven by lan James Wylie. Later, in the Magistrate’s Court, Wylie was convicted of driving without due care and attention and failing to stop He was fined £5 on each charge and his licence was suspended for one month and endorsed for three years.

McCarthy was convicted of assaulting Wylie and was gaoled for one month.

Both promptly appealed against conviction and sentence and by consent their appeals are standing adjourned to June 29, McCarthy meanwhile remaining on bail. His Honour said: “McCarthy was clearly entitled to a separate trial and, in my view, it was quite irregular in law for the learned Magistrate, doubtless under pressure of the usual heavy list of traffic offences, to embark as he did on a joint trial without McCarthy’s consent, and the result was a mis-trial amounting to a miscarriage of justice.

“There can be little doubt that had the trial been properly conducted McCarthy would have been convicted of what appears to have been a most unjustifiable assault.

“One may regret that a person should •,escape the consequences of his wrongdoing. <But there is something very much more important than this, and that is that a basic principle of our criminal law should not be neglected or lost sight of. “The preservation of this principle is of more importance than the result of this particular case.”

His Honour quashed the conviction. At the hearing of the appeal Mr L. P. Leary, Q.C., with him Mr lan Barker, appeared for McCarthy and the Crown Prosecutor, Mr G. S. R. Meredith for the Magistrate.