IMPORTANT POINT

Manawatu Standard, Volume LIX, Issue 21, 23 December 1938, Page 8

IMPORTANT POINT

IN RESERVED JUDGMENT. AUTREFOIS ACQUIT PLEA. Reserved judgment on an important point was delivered by Mr /H. P. Lawry, S.M., in the Magistrate’s Court, yesterday, in the case against John James Francis Levens, taxidriver, of Palmerston North. The prosecution was conducted by Inspector J. Cummings. Defendant was charged that on July 7, 1938, he attempted to drive a car across the Ruahine-Main Street level crossing when it was not clear, contrary to section 9 (3) of the Government Railways Amendment Act, 1928. Defendant on November 2 last had been acquitted by a jury in the Supreme Court on a charge of causing bodily injury to three persons through allegedly negligent driving of a motorvehicle at the crossing. Mr G. I. McGregor, who appeared for defendant, entered a plea of autrefois acquit at the hearing in the Magistrate’s Court on November 28.

Comment that the statement of the law was clear and explicit? being clearly set out in Halsbury, 2nd Edit. Vol. 9, 159, was made by the Magistrate, but he added that at times difficulty arose in its application. Halsbury stated that the question was whether defendant had previously been in jeopardy in respect of the charge on which he was arraigned, for the rule of law is that a person must not be put in peril twice for tlte same offence. The test was whether the former offence and the offence now charged had the same ingredients in the sense that the facts constituting the one were sufficient to justify a conviction, on the other; not that the facts relied on by the Crown were the same in the two trials. A plea of autrefois acquit was not proved unless it was shown that the verdict of acquittal in the previous charge necessarily involved an acquittal of the latter. The defendant could only succeed on such a plea if the charge to which he pleaded was one in respect of which he could legally have been convicted on the prior occasion, or was one in respect of which, by statute, previous proceedings for the same cause were a bar to subsequent proceedings. Continuing, the Magistrate said that, in the case in which defendant was acquitted, it was necessary yfor the police to prove not only negligent, but also bodily injury to some person. In the present case it was not necessary to prove bodily injury to any person, such injury being attributable to negligent driving. Facts would be sufficient to warrant a conviction., in the present case which might fall' far short of being sufficient to warrant a conviction on the indictable charge. The ingredients of each offence were therefore ’not essential. This was sufficient to defeat the plea, which was also ineffectual because on the indictable charge the defendant was never in jeopardy of being convicted on the present charge. The indictable charge was dealt with before a jury which had no jurisdiction to deal with a'summary charge.

“An acquittal on a charge of manslaughter,” said the Magistrate, 1 is not a bar to an indictment or to a count in the same indictment on the same facts for the offence of driving to the danger of the public under the Road and Traffic Act, 1930 (Imperial). The dismissal of a major charge does not necessarily involve the dismissal of a minor charge on the same facts. I must therefore hold that the defence of autrefois acquit is not available to the defendant.” Defendant was convicted and ordered to pay los costs.