SUPREME COURT Car Driver Convicted On Perjury Charge

Press, Volume CVI, Issue 31195, 20 October 1966, Page 15

SUPREME COURT Car Driver Convicted On Perjury Charge

Although repeating an oath in the Supreme Court yesterday that he had not been the driver of a speeding car stopped by a traffic officer on the night of April 2, Leslie Malcolm Muir, aged 34, a contractor, was found guilty of perjury in having made the same denial while defending a traffic charge in the Magistrate’s Court. Muir yesterday called a witness, Desmond Francis Fitzgerald, who said it was he who had been driving Muir’s car when it was stopped, but the Crown Prosecutor (Mr C. M. Roper) reminded the jury that Fitzgerald was a convicted thief, shopbreaker, forger, and false pretence operator, and has already one conviction for conspiring to obstruct the course of justice. Traffic Officer J. E. L. Hume, who had said he was quite sure Muir had been the driver he had stopped, and other Crown witnesses were much more reliable, Mr Roper submitted.

Mr Justice Macarthur in summing up, said that the jury might conclude that “an impudent attempt had been made to pull the wool over the jury’s eyes.” “There is ample evidence in this case from which you could, if you saw fit, find the accused guilty,” his Honour said.

Muir, who pleaded not guilty, and was defended by Mr D. H. Stringer, was charged with perjury in that while defending a charge of exceeding 30 miles an hour, he had said, on oath, that he had not been the motorist concerned, whereas in truth and in fact he had been. On being found guilty—after the jury had retired for 17 minutes—Muir was remanded in custody for sentence on October 28.

Mr Roper, in opening the case against Muir, said there was important evidence, that when Muir was stopped, at 9.50 p.m. on April 2, he was told of the arrest, earlier that evening, of a fellow employee at Consolidated Concrete Ltd. Muir had arranged bail for this man, and could only have done this by getting the news of his arrest from the traffic officer. Traffic Officer’s Evidence Traffic Officer J. E. L. Hume gave evidence of stopping a driver—whom he identified as the accused Muir—about 9.50 p.m. on April 2, after pursuing his speeding car from the Main South road at Sockburn along Springs road to Amyes road. There were two children, aged about three and five, in the car. The driver had not been able to produce his licence, but gave his name as Leslie Malcolm Muir, aged 34, of 106 Warden street (Richmond), and his occupation as a foreman at Consolidated Concrete, Ltd. ,

Traffic Officer Hume said that as he had earlier that evening arrested a man named Wyatt, also an employee of Consolidated Concrete, for being drunk in charge of a vehicle, he told Muir of it, and suggested Muir might telephone Wyatt’s wife to inform her.

Muir was given a trafficoffence notice for exceeding 30 miles an hour, plus a warning for failing to keep left. Subsequently, said Traffic Officer Hume, as a result of information received by the Transport Department, he went to Consolidated Concrete’s premises, and asked for Muir. He was directed to an office; where he saw Muir seated at a desk, and had no doubt he was the driver he had stopped on April 2. “Muir said he was quite mystified about the whole situation,” Traffic Officer Hume said. “He could not recall driving his car on that evening, and seemed doubtful that he had been in Christchurch that week-end.” Traffic Officer Hume said he reminded Muir that he must surely recall the conversation about Wyatt, and his arrest, and certain aspects of conversation—but Muir emphatically denied that he had been the person. “I then ceased the interview,” Traffic Officer Hume said. “The Driver Of the Car” Under cross-examination, Traffic Officer Hume said he was quite sure that Muir had been the driver of the car he had stopped. Mr Stringer then said that the defence would produce “the driver of the car,”. Desmond Francis Fitzgerald for confrontation with Traffic Officer Hume—but on Fitzgerald's being called he did not appear, having left the witnesses’ room. When Fitzgerald was later found. Traffic Officer Hume was recalled to the witnessbox, and Fitzgerald brought on to the floor of the court, standing beside Muir. Mr Stringer: Have you seen this man before? Hume: No, I have not. Mr Stringer: Could you not have confused these two men at night? Hume: No, I don’t think so. The driver was quite dwarfed by myself, and there is no mistaking the two. Mr Stringer: You think there is some reasonable difference in their heights? Hume: Yes. Oath On Bible Evidence of Muir taking an oath on the Bible, and giving evidence in his defence at the Magistrate’s Court hearing of the traffic charge, was given by John Lewis Bansgrove, a Magistrate's Court clerk. He

identified Muir as the present accused. The gist of Muir’s evidence said Bansgrove, was a denial that he had been driving his car on the night of April 2, and that it had been in a garage for repairs. As a result of Muir’s evidence, Mr E. A. Lee, S.M., had dismissed the charge against Muir, without prejudice, for police inquiries to be made. Phyllis Ramona Hawkins, a shorthand writer on the Magistrate’s Court staff said that she had acted as Mr Lee’s stenographer that day, and produced her shorthand notes, and a transcript of such, relating to Muir’s evidence. Miss Hawkins read to the jury the following two passages: “I was definitely not stopped by the traffic officer. I am almost certain I was not in my car .... I can’t explain at all what the officer says. He is so adamant that he saw me in the car, and I am so sure I never laid eyes on the man before." “I am sure of one thing. I was not the man in that car when it was stopped.” Partygoers’ Evidence Peter John Berry, a driver employed by Consolidated Concrete, and his wife, Frances Edna Berry, said that Muir had arrived in his car at their home in Blankney street, Hornby, about 10 p.m. on April 2 to attend a party, at the same time bringing home their two small children whom he had taken out that afternoon. Mrs Berry said she saw Muir arrive, as she had gone out to the gate to bring the children in, being worried about their late arrival. Mr Roper: Did you actually see the accused stop outside the gate? Mrs Berry: Yes. Berry said Muir had come in and shown a traffic “ticket” saying that he had been chased down Springs road and stopped. “I had a look at the ticket—it had ‘warning only’ on it,” Berry said. Muir had also spoken of Wyatt being “picked up” for being drunk in charge of a vehicle, and he had overheard Muir telephone Wyatt’s wife about arranging bail. Berry said he had later heard Muir say he would “get off the charge,” and would say his car had been in the garage.

Cross-examined, the Berrys said there had been moderate drinking at their party. They only knew the man Fitzgerald by sight, and therefore would not have entrusted their children to his care. John Clifford Poulsen, a foreman at Consolidated Concrete, Ltd., said his car, which he had bought from Muir on May 18, was a 1936 Buick sedan, as described by Traffic Officer Hume.

On Saturday night, April 2, at the party at Berry’s Muir arrived and said he had been stopped by a traffic officer for speeding on Springs road, and mentioned that another employee of Consolidated Concrete had been “picked up for drunk in charge.” Some considerable time later, in a mess room at Consolidated Concrete, Muir said he was going to say his car was in a garage at the time he was stopped,” Poulsen said. Further evidence of Muir talking about his "ticket” was given by Kevin Henry Marr, an employee of Crown Crystal Glass, who said he was at the Berry’s party and met Muir there for the first time.

To Mr Stringer Marr agreed he had heard people calling Fitzgerald “Muir’s star witness” in the present case. Desmond Frames Wyatt, a plasterer, employed by Consolidated Concrete, said that he had been arrested by Traffic Officer Hume on the night of April 2, and had been bailed at the Central Police Station by Muir. Wyatt’s wife. Heather Jane Wyatt, gave evidence of Muir telephoning her that night, and telling her of her husband’s arrest.

Detective Senior - Sergeant E. T. Mitten said that as a result of inquiries, he interviewed Muir, told him he was suspected of committing perjury, and asked for an explanation. Muir replied: “No.” Arrested and charged at the police station, Muir had nothing to say. After the taking of depositions against Muir, he had spent 10 minutes waiting in Armagh street with him for a surety for bail to arrive, in company with Mrs Muir and Fitzgerald. “At no time, did Muir or Fitzgerald venture any suggestion that Fitzgerald had been driving the car on April 2,” DetectiveSergeant Mitten said. “Nor since that day, until this morning, has there been such suggestion.” “Released From Prison” Fitzgerald, in his evidence, said that on the evening of April 2 he had gone to Muir’s home with a carton of beer, but found him out Mrs Muir had a telephone call about the Berry children, and so he drove them home in Muir’s car, being stopped by a traffic officer en route. As he had Muir’s car, he gave Muir’s name and address. When he arrived at Berry’s, Muir was waiting in a truck outside, and after telling him what had happened, he drove Muir’s truck, while Muir went into the party. Cross-examined by Mr Roper about his age, address, and occupation, Fitzgerald said he was born in 1927 or 1928, was a truck driver, but

at April 2 had been working for some weeks as a nursing orderly at the Tuarangi Home, Ashburton. Mr Roper: But Mr Fitzgerald, you weren’t released from Waikune Prison until March 30, were you? Fitzgerald: Am I on trial, or the other man? His Honour: You are not here to ask questions, but to answer questions properly put to you. You have sworn to tell the truth.

Fitzgerald, questioned further, admitted he had been released from Waikune Prison after serving 18 months’ imprisonment for false pretences. He admitted further convictions for theft, shopbreaking, and countinghouse breaking, but denied conviction for housebreaking. Questioned about conviction for forgery, Fitzgerald hesitated. Mr Roper (reading from a criminal record card): Weren’t you sentenced in the Otahuhu Magistrate’s Court in 1964 for forgery? Fitzgerald: Yes, that is correct. And a further two month’s imprisonment for conspiring to obstruct the course of justice? —It depends on how you look at it. Weren’t you sentenced on that charge?—lf it is there, it must be true. And 13 days ago, in Christchurch, you were convicted on further charges of false pretences, weren't you?— That’s correct Questioned further, Fitzgerald was asked why he had not told Detective-Sergeant Mitten, in Armagh street, that he was driving the car. Fitzgerald: I didn’t want to get involved. Mr Roper: You’re involved in something now, aren’t you? Fitzgerald: I am giving evidence on oath, which is true and correct. Questioned by his Honour Fitzgerald said that Traffic Officer Hume (who had denied ever seeing Fitzgerald before) had been the officer who had stopped him. His Honour: Very well. You may stand down. * Accused’s Evidence Muir, in evidence on his own behalf, said he was not the driver of the car stopped by Traffic Officer Hume, but Fitzgerald. Traffic Office Hume was mistaken. He had not announced to anyone that Fitzgerald had been driving the car, nor to Traffic Officer Hume, because the latter had said: “Look, I’m certain you’re

the man. and you’ll be charged.” Cross-examining Muir, Mr Roper suggested that if Fitzgerald’s story and his own were true, the whole matter was not the “mystery” Muir had claimed in the Magistrate’s Court. Muir said that he did not know Traffic Officer Hume’s summons related to the events of April 2, because he had had another speeding “ticket” about two days later. The date of April 2 “meant nothing to him.” Muir agreed that at the time he gave evidence in the Magistrate’s Court, he knew Fitzgerald had been driving but said he was “only concerned about himself” and showing that he was not the driver. Muir denied he had called a witness, Owen, to prove his car had not been on the road on the night of April 2 but in a garage. “At no stage did I say the car was in the garage. I called him as I had told the traffic officer I thought that round about that date it was in the garage. Mr Roper: But you knew the car had been driven that night? Muir: Yes, but April 2 meant nothing to me. It was only when Traffic Officer Hume gave evidence it was clear to me. When Traffic Officer Hume gave evidence, you knew that on this night Fitzgerald had been driving?—Correct. But you gave your evidence and made out the whole thing was a mystery?—l said I wasn’t driving the car, a charge of which I wasn’t guilty. I wasn’t concerned with Fitzgerald or anyone else. But having heard Hume, you knew which night It was? —lt did not come across that way at all. I was there for the express purpose of proving I was not the driver that night. To Mr Roper: And you were prepared to say anything on oath to disprove it? Muir: No. Counsels’ Addresses Mr Stringer, addressing the jury, submitted that the jury would have to be quite sure—beyond a reasonable doubt—that Traffic Officer Hume was not mistaken. The defence case was that hd had been, and that Fitzgerald, as he and Muir had explained, had been the driver of the car. “What can I say to you in this case?” said Mr Roper to the jury. "It must have been obvious to you, and rather distressing, that here we have had perjury piled on perjury.”