PREVIOUS ACQUITTAL

Evening Post, Volume CXII, Issue 1, 1 July 1926, Page 7

PREVIOUS ACQUITTAL

AN INTERESTING DEFENCE

ALLEGED NEGLIGENT DRIVING.

(By Telegraph.—Press Association.)

AUCKLAND, 30th June.

"This is a very interesting case and brings up one of those points that are not often raised in this country," said Mr. J. W. Poynton, S.M., when announcing in the Magistrate _ Court that for the benefit of Justices of the Peace and the police he would deliver a written judgment in a case in which Margaret Esther Rogers was charged with negligently driving .. a motor-car on Broadway, Newmarket, contrary to section 28 of the Motor Vehicles Act. The case arose out of an accident on Bth January, after which Emma Thorbury, an elderly woman, died as a result of being struck by the defendant's car. Previously Mrs. Rogers was acquitted in the Supreme Court on a charge under section 27 of the Motor Vehicles Act of negligently driving a car so as to cause the death of Emma Thorbury. The point was raised by Mr. M'Veagh, who appeared for defendant, that with the omission of the reference to killing the charge against defendant was the same as that which had been preferred against her in the Supreme Court, and that as a person could not be tried twice for the same offence it must fail. Counsel therefore submitted pleas of: (1) Autrefois acquit, and (2) not guilty. Witnesses who had given evidence at the Supreme Court trial had the depositions then taken read to them for confirmation. Amplifying the plea of autrefois acquit, Mr. M'Veagh submitted that the only difference between the Supreme Court indictment and the present charge against defendant was that from the sentence, "That she did negligently drive the car, thereby causing the death of Emma Thorbury," the latter clause had now been omitted. At the Supreme Court trial it was conceded on all sides that the death of the woman had been the result of the accident, and the whole question for the jury to decide was whether accused had negligently driven the car. "That is • not only substantially the question before your Worship," continued Mr. M'Veagh, "but it is also actually the same charge." Mr. Poynton: "A case of the old maxim, 'Nemo debet bia vexari pro causa" (no one shall be harassed twice with one and the same cause). "That is so," replied Mr. M'Veagh, "or, as it is more briefly put, 'pro uno delicto' (for one crime). It is on the merciful principle of British justice that a person may not be charged twice with the same offence that this case is based." Mr. M'Veagh proceeded to quote au-thorities-in support of the first plea. One was the case of the Queen, versus King, in which the defendant, havingbeen tried on a charge of obtaining goods under false pretences, it was held that a subsequent charge of larceny of the same goods could not succeed. "'I have been furnished with a happy illustration," added Mr. M'Veagh. "If a man is charged with being drunk while in charge of a car, and the Magistrate holds that he was in the car but not drunk, to charge him afterwards with being drunk would be an unheard-of thing." Counsel submitted that there was no negligence. It was shown from the evidence of the incidents that had occurred that the defendant had driven slowly. Medical evidence, had been given that the deceased was of a highly nervous condition, and that it was' likely in an emergency that she would lose her head. Two boys had given evidence that if she had continued on she would have been safe. Mrs. Rogers made a frantic effort to avoid striking .the unfortunate woman. Senior-Sergeant Edwards, who prosecuted, quoted a case heard before Mr. Justice Herdman at Hamilton, in which a man was brought before the Court on a charge of indecent assault, which the justices reduced to a charge of assault, on which they sentenced the man to one month's imprisonment. That did not interfere with the resumption of a charge of indecent assault. "That is a different matter," said the Magistrate. "There is no analogy in the charges." "But the facts were the same," replied the- senior-sergeant. "Quite so," remarked the Magistrate, "but the charges differed." "Our answer is that the man had not been imperilled on the major charge, as was the defendant in this Case," said Mr. M'Veagh. Decision was reserved.