SUPREME COURT

Otago Daily Times, Issue 22630, 23 July 1935, Page 5

SUPREME COURT

CRIMINAL SESSIONS OPENED The quarterly criminal sessions of the Supreme Court were opened yesterday before Mr Justice Kennedy. THE GRAND JURY The following grand jury was empanelled:—E. C. Hazlett (foreman), D. R. Noble, A. G. Melville, G. W. Lanham, S. G. Smith, A. J. Allen, J. R. Dreaver, Gerald Benson, S. L. Scoble, D. G. Adam, M. W. Johnson, J. H. Duncan, A. Macßae, G. B. Ogilvie, D. G. Mowat, ■A. V. Gain, P. Rouse, J. L. Oliver, P. Gray, J. A. Aitchison, J. R. Paterson, Eric Davidson, P. J. Rendall. HIS HONOR'S CHARGE Addressing the grand jury, his Honor said that the list of charges to be considered by them was not a long one. They would be sorry to observe, however, that it had been disclosed that no fewer than four persons had lost their lives on the roads of the district in ono month. A little boy had been killed through a motor lorry mounting the footpath in one part of the city, and another boy had been killed by a motor car while riding a bicycle in Stuart street. A third accident had resulted in two persons losing their lives. _ In respect of this occurrence the driver of the vehicle had been committed to that court for trial, but it, was said that he had himself died since his committal.

Continuing, his Honor said that the question whether' the responsibility for these fatalities rested on the drivers of the vehicles concerned was a matter concerning which he would have nothing further to say at that stage. There were three charges with which the grand jury would have to do, two of them arising out of the deaths to which he had already referred. One death was said ’to be the result of negligent driving and the other was alleged to have resulted from the actions of a man who, while in charge of a motor vehicle, was said to have been intoxicated, thereby causing the death of a human being. The first charge arose out of a collision between a motor lorry and a motor car at the intersection of two narrow city streets. The evidence would show that after the two vehicles collided the motor lorry continued on and, mounting the footpath, killed a little boy who was walking thereon. To drive negligently was to drive without the exercise of such care and vigilance as would satisfy an ordinary, reasonable driver. At intersections of narrow streets it was not sufficient that a driver should reduce his speed. He should make sure of sounding a proper warning and should observe the strictest vigilance.

The second charge, said his Honor, was one of being drunk in charge of a motor and killing a boy in Stnarf street. The facts in both cases were very simple and the evidence would be readily followed by the grand jury without the necessity of his detailing it to them.

The remaining charges, his Honor added, were breaking and entering premises and alternatives of theft and receiving stolen goods knowing them to have been dishonestly obtained. All these charges were against one person, and, as the evidence was of the usual kind, the members of the grand jury readily follow it. The grand jury returned a true bill in each case. DEATH OF ACCUSED

Mentioning n case in which John Gear Garrick bad been committed for trial on n charge of negligent driving causing death, the Crown Prosecutor (Mr IT. B. Adams) stated that he had been informed that the accused had died. The charge arose out of an accident on the Portobello road, ns the result of which two women who were passengers in Garrick’s lorry were killed. After formal evidence of Garrick’s death had been given by Anthony Joseph Heffernan, William Joseph Harvey, a constable, was released from a bond which placed upon him an obligation to prosecute. NEGLIGENCE ALLEGED James Sylvester Henderson was charged with negligently driving a motor vehicle, thereby causing the death of Arnold Patrick Healey. The accused pleaded not guilty. The Crown Prosecutor (Mr F. B. Adams) prosecuted, and Mr J. S. Sinclair appeared for the accused. Mr Adams, addressing the jury, said that it had to be determined whether the death of the child was actually caused by the negligence of the accused. Two very important points were involved in the case. In the first case, of course, there was the question of the accused’s position if he were found guilty of a criminal charge, but secondly it had to be remembered that the verdicts of juries in such cases tended to set the standard of care observed by drivers on public roads and streets. A heavy responsibility, therefore, devolved upon the jury and the importance of The verdict extended beyond the particular case under consideration. Counsel said that he had no doubt that many of them were familiar with the scene of the accident, which had taken place at the intersection of David and Marion streets. They were both narrow streets meeting at an intersection which called for the exercise of a high degree of care. In fact the intersection was dangerous enough to impress itself upon any reasonable driver whether he were familiar with it or not s Cotinsel discussed the motor regulations in relation to the accident, particularly those bearing on speed at intersections and giving way to traffic approaching on the right. It would be shown that the accused broke the regulations in each respect. Counsel read the accused’s statement, made to the police on the day of the accident, and drew particular attention to the fact that Henderson admitted that owing to being dazzled by the reflection of the sun in his rear view mirror he could not see traffic approach ing for some seconds. Counsel submitted that here was a case for the recognition of a maxim that had some legal authority—“ where you cannot see, you may not go.” It was as a result of his not seeing the motor car approaching along Marion street on his right the accused collided with the smaller vehicle and finally mounted the footpath and struck the boy, who died as a result of the injuries he received. Evidence was given by Dr A. G. Gumming, a house surgeon at the Dunedin Hospital, who gave details of the boy’s injuries, and by the boy’s mother, who described the accident.

In reply to Mr Sinclair, she stated that she thought the lorry was on the intersection first and that the motor car approached at a fairly fast pace. Constable Wroblenski gave particulars of his observations after the collision, and was briefly cross-examined by Mr Sinclair.

Evidence was also given by Marjorie May Davidson, Margaret Donnelly Fraser, Ivan Kenneth M'Gregor and Robert M'Gregor, all of whom were eyewitnesses of the collision or on the spot shortly after the accident. Mr Sinclair had no question to ask any of them. Thomas Charles Morris! the driver of the car involved in the collision, gave evidence of the actual accident. He was keeping a sharp lookout to the right, and did not notice the lorry approaching on the left until it was too late. The lorry was almost upon him when he realised the danger. The lorry struck his car a sharp sort of glancing blow. He approached the intersection at about six miles per hour, but he could not say at what speed the accused was travel-

ling. Witness at no time applied his brakes. • In answer to Mr Sinclair, witness admitted having visited a hotel for two drinks on the morning of_ the day of the accident. Witness denied that the accident could have been avoided if he had seen the motor lorry sooner. _ James Konald Cameron, a municipal traffic inspector, gave evidence concerning tests made by him with both vehicles some days after the collision. John Charles Gough and his son, John Gough, passengers in the car which collided with the lorry corroborated the evidence of' Morris. There was no evidence for the defence.

In his address to the jury the Crown | Prosecutor went over the facts of the i case again, summarising the evidence, | which he contended pointed to direct negligence on the part of the accused. Counsel drew attention to the fact that the accused had not seen the approaching car because he was blinded by the reflection of the sun in his rear-view mirror. Mr Adams went on to stress the fact that it was no defence for the accused to say that somebody else had been equally negligent. He assumed that that was the course which the defence would take judging by his learned friend’s attitude. Counsel submitted that the jury must confine itself to the simple and direct issue. Was there any negligence on the part of the accused and did such negligence, if any, contribute to the death of the boy. One thing the accused had no right to do was to proceed on his way while dazzled by the sun. If he went on not knowing what, traffic was coming out on either side of him he was to blame, and it was the duty of the jury to convict him. Well-, known rules of the road governed such occurrences and they could judge as to them, but they must put out of mind altogether any suggestion that someone else also was responsible. i Mr Sinclair emphasised the responsibility of the Crown to prove the accused’s guilt. It had not done so as they could themselves see from the evidence : which' indicated that the accused was driving at an unusually slow rate of speed. The Crown had itself proved that. Concerning the question of which vehicle reached the intersection the only evidence was that of the mother of the boy, who said that the lorry got there first. Counsel submitted in _ view of these two points that the accident was the result of misadventure on a consequence of the negligence of the witness Morris. Had there been no fatal outcome of the collision no traffic charge could hhve been brought against the accused. There was no evidence to substantiate a charge against the accused. In any case allowance had to be made, for the difficulty of manoeuvring a heavy vehicle like that which the accused was driving. Nothing that the accused could have done had been left undone. There ■was no suggestion of speeding or of intoxication. There was no negligence, and what he tried to do in the emergency was perfectly reasonable, and on the evidence it was impossible for the jury to find beyond all*doubt that the accused caused the child’s death. But, counsel added, he would go further and say definitely that the wrong man was in the dock. Moreover, he would go so far as to say that some of the evidence | of Morris and-the two Goughs was de-1 monstrably false, concocted for the pur- ■ pose of deceiving the jury. Why should this be? For no other reason than that they had something to hide. When that evidence was placed side by side with the accused’s statement it merely served to show how honest, straightforward and simple that statement was. Counsel insisted ;that Morris did not keep a proper lookout or he could have avoided the collision. He asked the jury to bear in mind that the motor car was in the middle of the intersection before the driver, Morris, saw the truck. It was the grossly negligent conduct of Morris which caused the collision and placed the accused in an emergency. Even in spite of Morris’s negligence the accused could have saved the boy’s life if it had not been for the breaking of the springs of the truck. The accused was not to blame, and he felt sure* the jury would admit it by bringing-in a verdict of not guilty. . ~ His Honor intimated that he would sum up this morning, and the court was adjourned .until 10 a.m. to-day.