“ALREADY ACQUITTED”

Evening Star, Issue 19290, 1 July 1926, Page 12

“ALREADY ACQUITTED”

PRINCIPLE OF BRITISH LAW INTERESTING POINT RAISED [Per United Press Association.] AUCKLAND, June 30. “This is a very interesting case, and brings up a point that is not often raised in this country,” said Mr J. W. Poynton, S.M., when announcing in the Police Court that, for the benefit of justices of the peace and the police, ho would deliver a written judgment in the charge of negligent driving preferred against Margaret Esther Rogers. Defendant 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 January 8, in which Emma Thorbury, an elderly woman, died as a result of being struck by defendant’s car. Previously Mrs Rogers was acquitted in the Supremo Court on a charge under section 27 of the Motor Vehicles Act of negligently driving a ear 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 v reference to killing, the charge against defendant was the same os that which had been preferred against her in the Supreme Court, and that as a person could hot be tried twice for the samo 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 “Autrefois acquit,” Mr M'Veagh submitted that the only difference from the Supreme Court indictment and the present charge against defendant was that from the sentence “That she did negligently drive a car, thereby causing the death of Emma Thorbury,” the latter clause had now been omitted. At the Supremo Court trial if was conceded on all sides that the death of the woman had been the 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 debit bis'vosari pro causa ” (no one shal be harassed twice with one and the same cause). “ That is so,” replied Mr M'Veagh, “ or, as is more briefly put, ‘ pro uno delicto’ (for one crime). It is on the merciful principle of British justice that a person may not bo charged twice with the same offence that this case _ is based,” said Mr M'Veagh. Proceeding to quote authorities in support of the first plea, he said, one was the case of the Queen versus the King, in which defendant, having been tired. on a charge of obtaining goods under false pretences, it was held that a subsequent charge of larceny of the samo 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 tho 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 incidents that had occurred that defendant had driven slowly. Medical evidence had been given that deceased was of a highly nervous temperament, 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 Rodger made a frantic effort to avoid striking the unfortunate woman.

Senior-sergeant Edwards, who prosecuted, quoted the 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, sentencing the man to one month’s imprisonment. That did, not interfere with n resumption of the charge of indecent assault. “ That is a different matter,” said tho 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 tho major charge as was defendant in this case,” said Mr M'Veagh. Decision was reserved.