SUPREME COURT Law Student Loses Appeal On Traffic Charge

Press, Volume CVI, Issue 31225, 24 November 1966, Page 7

SUPREME COURT Law Student Loses Appeal On Traffic Charge

A 22-year-old law student, Bruce Edward Jesson, was unsuccessful in an appeal before the Chief Justice (Sir Richard Wild) in the Supreme Court yesterday against conviction for failing to stopj at a compulsory stop on! Creyke road, near the University of Canterbury, on theafternoon of August 19. Jesson, riding a motor-! scooter, had been stopped and I charged by a police sergeant! who was following him in a; patrol car, after a flag-burn-ing incident had occurred at the university during a visit by the Governor-General (Sir Bernard Fergusson). Jesson, through Mr E. O. Sullivan, appealed on the ground that the magistrate who convicted him had applied a wrong test as to the standard of proof required. Rather than finding the evidence of Sergeant R. G. Gargett satisfying him beyond reasonable doubt, the magistrate had said that it was “far more likely” than Jesson’s evidence.

[Jesson, who conducted his own case in the Magistrate’s Court, had said that he knew the police car was following him, and therefore did everything “dead right,” coming to a deliberate halt at the stop, and looking both ways before proceeding across.] His Honour said that the magistrate’s remark had to be considered in the whole context of his decision, in which he had correctly directed himself on the onus of proof. “Applying that onus, he convicted the appellant. Therefore, the conviction must stand, and this appeal be dismissed,” his Honour said. Criticism of Police Mr Sullivan said that the prosecution’s failure to call other policemen as witnesses —the patrol-car driver for instance raised “considerable doubt as to the honesty of the police sergeant,” and

as to the consistency of the police. Because of this, there must have been doubt in the magistrate’s mind about the police evidence, in which case Jesson should have been acquitted. Mr Sullivan also quoted Jesson’s evidence that a detective had come up. and said: “What have you stopped him for? Dangerous driving or something?” According to Sergeant Gargett, Jesson, when asked why he had failed to observe the stop, had said: “I don’t suppose there’s much use denying it.” But it was unlikely, said Mr Sullivan, that Jesson, a law student, would have said this.

However the magistrate had held Sergeant Gargett’s evidence “far more likely” than Jesson’s. That should not have been the sole criteron for accepting the former's evidence.

Opposing the appeal for the Crown, Mr N. W. Williamson submitted that the magistrate, having seen both Sergeant Gargett and Jesson, had formed his view of their credibility, and in doing so he had been entitled to take probability of fact into account in that assessment.

The failure to call the patrol-car driver was a matter of administration rather than any deliberate intention on the part of the police, Mr Williamson said. His Honour said that the police version of events was entirely denied by Jesson, so that the case was wholly one of credibility—and the magistrate had had the advantage of hearing and seeing both witnesses. Other Appeals Dismissed Four other appeals—two against conviction and two against sentence —were also dismissed by his Honour. One appellant, Allan Leslie Johnson, aged 34, a driver’s assistant who appealed against conviction for driving under the influence of drink — conducted his own case, after his counsel, Mr S. G. Erber, withdrew, saying that irreconcilable differences had arisen between himself and his client. His Honour described Johnson’s submissions as consisting principally of criticisms of the police, and a restatement of his own evidence in the Magistrate’s Court. Johnson had been very capably defended there, and the magistrate had given the case very careful hearing. “In my opinion, the decision he reached was a correct one,” his Honour said. As to the 14-day prison sentence imposed on Johnson, his Honour confirmed it as appropriate, in that he had been convicted and fined £5O for a similar offence three years ago.

An appeal by Leslie George Whitehead, a greenkeeper (Mr J. R. Milligan), against conviction for failing to give way to the right was dismissed, his Honour rejecting the substantial ground of the appeal that a magistrate had erred in ruling brake-failure of Whitehead’s car irrelevant, and upholding his view that a collision had been caused by Whitehead’s failure to see another car in time.

An appeal by Robert Stuart McNicol, aged 38, a workman

(Mr J. W. Dalmer), against six months’ imprisonment for false pretences, imposed in the Invercargill Magistrate’s Court, was dismissed. Having regard to McNicol's background of 35 convictions, said his Honour, the punishment had been appropriate. An appeal by Kenneth Paul Anthony, aged 19, a foundryman (Mr J. H. M. Dawson), against Borstal training on eight charges of burglary, imposed in the Christchurch Magistrate’s Court, was dismissed, his Honour saying that Anthony needed institutional training, and would, if he was wise, benefit from it.