CONTROL OF CAR

New Zealand Herald, Volume LXXV, Issue 23033, 10 May 1938, Page 18

CONTROL OF CAR

INTOXICATION CHARGES LEGAL POINT DEBATED DRIVER TO PAY £3O FINE CASE AGAINST OWNER FAILS Two men were charged in the Police Court yesterday before Mr. C. R. Orr .Walker, S.M., with being in a state of intoxication while in charge of a motor-car in Queen Street on May 8. The owner of the car, Sylverton William -Waro Belton, aged 29, truck driver, was charged as well as the driver, Charles James Parker, aged 23, marine engineer. Both accused, who were represented by Mr. Quartley, pleaded not guilty. Sub-Inspector Fox stated that the men went to a party at Morningside on Saturday night. Belton drove thw car to the party. At about 1.30 a.m. on Sunday the car, which was then driven by Parker, collided with a taxi wljich was making a right-hand turn in Queen Street, a few yards from the Wellesley Street intersection. After the collision the car went on about 60yds and pulled up across the intersection. English Case Quoted Shortly afterward Sergeant Miller and two constables arrived at the scene and found the taxi-driver engaged in a conversation with Parker, who was behind the wheel. Belton was next to him, in the front seat. Parker was found to be under the influence of liquor and was taken to the police station. Belton also was later medically examined and was found to be intoxicated. Dr. 0. F. Lamb Btated that he had examined bot' accused. He certified that both were under the influence of liquor, but Parker only to a slight extent. Sub-Inspector Fox . said that the charge against Belton was based on an English case, DuCross v. Lambourne, which was used extensively in New Zealand. It had been held in this case that the owner of a car could be convicted either as a principal or for aiding and abetting an offence. In this case the owner was sitting beside a friend who was speeding, and it was held that the owner was actually in control. In evidence, Patrick McSweeney, second officer on the steamer Rowanbank, said that Parker was employed on the vessel as fourth engineer. Six persons had gone to the party at a private house. It was not a drinking party. At the conclusion Parker expressed' his willingness to drive * the car, and he produced a driving licence. In the opinion of witness Parker was perfectly sober, and he drove the car in a cautious manner and at a moderate speed. It was arranged by his friends that Belton should not drive. "All Gave Directions". Parker stated that he had- had a licence for eight years and, being at sea, he did not have much opportunity of driving. Accordingly .he had aslced if he could drive the car home. Belton sat beside him and gave him directions. 1

Sub-Inspector Fox: Then would you not say that he was the guiding influence! and that he controlled the car ? Parker: No, they all gave me directions where to go. Belton conies from the country and did not know the locality. - Mr. Quartley said that the question as to who was in charge of the car required carefdl consideration. The lady members of the party had decided that Parker should drive the car. It was stretching the law and the facts to say that Belton was in charge of the cax or was aiding, and abetting. Counsel submitted that the fact that Belton was in the front seat of the car and was the owner did not show that he was in charge of it. It was decided by the lady members of the party that Belton should not drive, and there was no evidence to show that Belton had any say as ireg&rds the control of the car. ' The Driver Fined Counsel submitted that other caseß where a person sitting in the front seat ,of a car jras found to be the . owner did not apply in this case. He also suggested that nothing could be nearer the borderline than the doctor's certificate. "With regard to Parker, who was the actual driver of the car, it is undoubted that he was intoxicated and that /he was in charge of the car," said the magistrate. "However, it is not a case which calls for imprisonment, but is one for a substantial -fine. There is overwhelming evidence that accused over-indulged and he must have known that he was affected." Accused was fined £3O and costs, and his licence was cancelled for 12 .months. "The charge against Belton raises some interesting legal questions," added the magistrate. "A driver is prima facie in charge of the car. If he is the owner of the qar he is also in charge. He is keeping a certain amount of control unless he is too ill or too drunk. If he was too drunk he could not be _ said to be in charge of the car, but if he was not so drunk as to know what he was doing, he could still be held to be in charge." "Did the Sensible Thing" "If he knew that the driver he engaged was intoxicated; then he could be convicted as a principal offender. There is a lack of evidence, however, that Belton did know that' Parker was intoxicated. He was very pleased that someone else had taken the responsibility off his hands, and he did the sensible thing. L , •- "If Belton honestly , believed that Parker was sufficiently/ sober to drive the car, I- must give the benefit of the doubt,? concluded the magistrate. - If the owner of a motor-car is satisfied that a man w;ho is driving the vehicle is sober, I fail to see how he can be convicted." The charge against Belton accordingly was dismissed - Both accused also faced charges, of failing to carry a warrant of fitness. The magistrate held that Parker could reasonably be expected to assume that the'car carried a warrant, and he was convicted and discharged. Belton. the owner of the car, who had ' admitted drilling from Whancarei on the day prior to .his arrest, was fined £l.

' DRIVER ASLEEP IN TRTJOK THIRD CONVICTION ENTERED . ~-■■■ • ■ ■ [from' our own correspondent] : HAMILTON, Monday Pleas of guilty were entered by Arthur William Witt, a carrier, of Frankton, in the Hamilton Police Court to-day to charges of being found intoxicated while in charge of a motor truck, of having no driver's licence and no warrant of fitness for his vehicle. Sergeant T. Kelly said accused was found asleep in his motor-truck in Seddon Road on May 3. The vehicle was parked in the middle of the street. When awakened accused was found to be intoxicated. He had been convicted of being intoxicated while in charge of a motor vehicle in 1926 and 1930. He had no driver's licence and, no. warrant of fitness. Mr. A. L. Tompkins said accused had not been in trouble for eight years. The magistrate, Mr. S. L. Paterson, sentenced accused to 14 days' imprisonment on the major count, and prohibited him from holding a driver's licence for two years. For having no driver's licence accused was and for having no warrant of fitness he was fined £l.