REHEARING REFUSED

New Zealand Herald, Volume LXIX, Issue 21358, 6 December 1932, Page 11

REHEARING REFUSED

SPEED ON DEVIATION CONVICTION OF MOTORIST MAGISTRATE'S DECISION " There were no merits in this case to start with, and that ought to liavs been known by the Auckland Automobile Association at the time," said Mr. F. 11. Levien, S.M., in the Otahuhu Magistrate's Court yesterday, in refusing an application for the rehearing of a charge of speeding against James Prickett. .Defendant was fined in the Pukekohe Court on September 7 for exceeding the prescribed speed limit on the Bombay deviation. In reviewing the case, Mr. Levien said that defendant was prosecuted at Pukekohe by the inspector of the Main Highways Board and convicted and fined. One month later other similar prosecutions were made by the inspector, but were dismissed, the defence being that notices directing attention to the speed limit had not been fixed on two clay road intersections. It was apparently on the strength of these dismissals that the rehearing was now asked on behalf of Prickett.

When Prickett appeared at Pukekohe the prosecuting inspector said that signs had been erected on the deviation, and he had not been cross-examined on this point, continued the magistrate. The defence was that one sign only had been erected and that it could easily have been mistaken owing to its position. The true position was that five Auckland Automobile Association signs had been erected and another six signs had been posted by the Main Highways Board at the request of the association. All these notices, directed attention to the speed limit. " I have locked into the civil and criminal aspects of the request for a rehearing, but, there is nothing in the Justice of the Peace Act to warrant a rehearing," said Mr. Levien. To grant a rehearing it must be established that there is fresh evidence that was not available at the time of hearing of the case, and must further show it would strengthen the original evidence and also establish that substantial justice had not been done. Mr. T. N. Ilolmden, who appeared for the defendant, said that in view of the publicity given to the magistrate's remarks the Auckland Automobile Association could scarcely allow thern to pass without comment. Mr. Holmden proceeded to read from a prepared document, which he said was a considered reply compiled by the association, when the magistrate interposed. " If the Auckland Automobile Association has any comment to make I would suggest it hand its views to the press," said Mr. Levien. What he had said at Pukekohe was perfectly justified, reasonable, and admitted of no argument on the facts of the case.

ASSOCIATION'S STATEMENT

DEFENCE OF ATTITUDE ACTIVITIES AND POLICY "The Auckland Automobile Association feels that certain comments made by the magistrate in the course of the previous hearing cannot go unchallenged," states the memorandum prepared by the association in connection with remarks made by Mr. F. 11. Levien, S.M., in a case in the Pukekohe Court. "It submits that those remarks were based upon an erroneous conception of the activities of the association, particularly in so far as they relate to the prosecution under discussion and that in the interests of the motoring public these misconceptions should be put right. ■" The association, claiming to represent some 16,000 motorists residing in the provincial district, of Auckland, has always had the slogan 'Safety First,' and does not give us support to any breaches of motoring regulations or of by-laws," the memorandum continues. "It provides, however, free legal advice to its members in regard to all motoring prosecutions, and such free legal advice includes the appearance of counsel in the Police Courts on behalf of its members. The association does not itself decide whether a prosecution is to be defended or not. The determination of that is left entirely to its legal advisers and the members concerned.

"The association feels that a large number of prosecutions are brought for the sole purpose of raising revenue for local bodies. It has been laid down by very high judicial authority that the duty of the police is to prevent rather than detect crime, and in order to assist that ideal the association erected on the Bombay deviation a large number of notice boards requesting motorists to keep their speed under 30 miles an hour. " The association understands that in all prosecutions the onus is on the, prosecution of proving its case. Until that is done the defendant is innocent, and the association feels that whatever the charge a member is entitled, subject to the advice of its legal advisers, to have liis case properly defended. Bv granting a member free legal defence the association contends it does not thereby becojtio a defendant to the proceedings."

It is claimed by the association that the by-law on which (he prosecution was based was made by the Main Highways Board for the purpose of preserving tho road surface until it could be sealed. The association, in addition to erecting a number of signs, had patrols stationed on the deviation to warn motorists to slow down and thus ensure compliance with tho bylaw. The association contends that in this way it was giving better effect to the purpose of llio Slain Highways Board than its inspector did, for he ordered tho patrols away from t lie deviation, allowed motorists to travel at a, speed in excess of the limit, and subsequently prosecuted them for a breach of the hv-law.

Willi regard generally to prosecutions for speeding on the Bombay deviation, the association is of opinion that the method of trapping motorists adopted by the t radio inspector is extremely objectionable," the memorandum adds. " Among those who have been prosecuted during the last few months are highly respectable members of the community, whose respect for (lie law is such that they have taken special precautions so as not to exceed the speed limit. These members avow that at no time did they exceed the speed limit provided by the by-law, and (hat tho subsequent prosecution was incomprehensible. Tho association lias been impressed by the number of eminently respectable citizens who have been prosecuted."

In conclusion, the memorandum states that the question whether any of the funds of the association should be applied in providing free legal defence for its members is a peculiarly domestic question and concerns nobody except the association and its members, and in this it has as a precedent the policy of the largest motoring association in the world, namely, the Automobile Association of England.