Judge Criticises S.M. ’s Notes

Press, Volume CIV, Issue 30761, 27 May 1965, Page 3

Judge Criticises S.M. ’s Notes

(N.Z. Press Association)

DUNEDIN, May 26. The rehearing of a charge against Raymond Linster Bell, aged 39, a salesman, of driving while under

the influence of drink or drugs was ordered by Mr Justice Henry today.

Bell was sentenced to 14 days’ imprisonment and was disqualified from driving for three years when he appeared before Mr J. D. Willis, S.M., on April 20. The charge arose from an accident on April 14. Bell’s appeal to the Supreme Court was against both the conviction and the sentence. Mr J. B. Deaker appeared for the Crown and Bell was represented by Mr A. J. H. Jeavons. Mr Justice Henry said the real question was whether the correct onus of proof had been applied in this case.

But, he said, he was unable to judge because there was nothing in the notes written by the Magistrate to guide him on how the decision had been reached. “In the circumstances, the only course is to set aside the conviction and sentence, and rehear the case,” said his Honour. Mr Jeavons submitted that evidence given by Dr. E. R. Harty that he was able to distinguish between the symptoms of concussion and intoxication was in conflict with authorities on the subject.

Dr. Harty had found Bell drunk and unfit to drive on the night of the accident: the next morning Dr. F. K. Rennie had examined him and considered him to be in a post-concussional state. Dr. Harty had not discounted that concussion might have manifested itself later, but he said he had found no bother in distinguishing between the two conditions during his examination. Mr Jeavons submitted that the Magistrate had acted on a wrong principle in appointing Dr. Harty the judge of the case instead of himself He suggested that imprisonment was excessively

harsh and the wrong penalty in the circumstances. When Mr Jeavons said he had not been present at the Lower Court hearing and had found difficulty with the briefness of the Magistrate’s notes, his Honour replied: “These cases are treated by the courts as important and it is essential for full notes to be taken by magistrates.”

Mr Deaker submitted that Bell had been correctly convicted. While the Magistrate’s decision seemed to have rested on acceptance of Dr. Harty’s evidence there had not been sufficient in the other evidence given to cast reasonable doubt on it. Bell himself had said he had drunk “everything,” and “I’m drunk.”