Supreme Court Appeal Succeeds; Fined On Substituted Charge

Press, Volume CI, Issue 29803, 21 April 1962, Page 14

Supreme Court Appeal Succeeds; Fined On Substituted Charge

An information against a man who was convicted in the Magistrate’s Court was changed by Mr Justice Macarthur in the Supreme Court on Thursday. He allowed the man's appeal, but convicted him on a different information.

David John Hooper, aged 22, a driver, had appealed against his conviction by Mr A. P. Blair, S.M., on a charge of driving at a speed which was or might have been dangerous in the circumstances. He had been fined £lO and his licence suspended for three months. His Honour quashed that sentence but altered the information to one of having driven without due care and attention. He fined Hooper £lO on that count. In a reserved decision, his Honour said he had had the advantage of hearing evidence which had not been called in the Magistrate's Court. That was the evidence of the only eye-wit-ness to the accident in which Hooper had been involved. In the circumstances this evidence could not have been adduced in the Magistrate’s Court. With counsel’s consent he had also visited the scene of the accident at the intersection of Sherbourne street and Purehas 'street.

When the appeal was heard on November 29. Mr D. J. Hill appeared for Hooper and Mr P. T. Mahon for the Crown. On Thursday Mr P. G. S. Penlington appeared for Hooper and Mr N. W. Williamson for the Crown. His Honour said the facts of the case were somewhat unusual in that when the 15cwt van driven by Hooper collided with a jeep at the intersection on July 14 last year. Hooper had the righthand rule in his favour. “I find myself in doubt as to whether the serious charge against Hooper has been proved beyond reasonable doubt.” said his Honour. “The evidence is not suffi-

cient to establish that his speed at the intersection exceeded 30 miles an hour. I am of the opinion that the prosecution has not proved that he was guilty of driving at a dangerous speed. “On the other hand, the evidence proves that he was driving without due care pnd attention. He had the righthand rule in his favour and that is a very important rule. It has been said that nothing must be done to whittle it away. “It has also been said that the driver with the rule in his tavour—providing he drives with due care—is entitled to believe that others will obey the rule. “It is not of course an absolute rule, and a party may lose its benefit if he is not exercising due care and is himself negligent. ‘‘ln this case Hooper says he looked right and saw no traffic. He had already seen the jeep on his left and just assumed that it would give way.

“But.having seen the jeep he should have been on the alert. His failure to take any precaution amounts to a failure to exercise due care.”