INTOXICATED MOTORIST

Otago Daily Times, Issue 22723, 8 November 1935, Page 7

INTOXICATED MOTORIST

INTERESTING POINT RAISED REHEARING OF CASE GRANTED MAGISTRATE ALTERS PENALTY The case in which Gustave Neilson was convicted on a charge of being guilty of being drunk in charge of a car, and was sentenced to three weeks’ imprisonment, was re-heard yesterday in the City Police Court ’by Mr H. W. Bundle, S.M. His Worship, after listening to further evidence which was not available at the original hearing, cancelled the term of imprisonment and imposed a fine of £lO and prohibited the accused from driving for 10 years. The case raised an interesting point in that it decided whether the owner of a motor car who, too much under the in.fluence of liquor to manage .the machine, allows a companion, who is also under the influence of liquor, to drive, and is at the same time a passenger in a car, is guilty of being drunk in charge. With Neilson, Jack Williamson Brockie was involved in the case, and while Brockie, who was driving when they were arrested, pleaded guilty, Neilson, the owner of the car, entered a plea of not guilty, contending .that as he was not at the wheel he was not in charge of the car. The court held otherwise, and since he had previously been convicted of a similar offence, he was sentenced to three weeks’ imprisonment. At the conclusion of the hearing Mr J. C. Robertson, who represented Neilson, applied for a re-hearing oh the ground that certain medical evidence, through a misunderstanding, had not been taken. His Worship granted the application. Mr Robertson said that at the previous hearing the court had found that Neilson at no time drove the car, and also that he was very drunk. Moreover, in the absence of Dr de Lautour’s evidence, the court held that he was in such a condition that he could be convicted of aiding and abetting Brockie. Counsel maintained that Neilson must have been helpless .and incapable, otherwise he would not have allowed Brockie to drive, and the only reasonable infer- . once, therefore, was that he was mentally incapable of aiding and abetting Brockie. If there was a doubt as to his mental condition the accused was entitled to it, for no evidence had been brought to show his intentional encouragement of Brockie to drive the car. Dr de Lautour gave evidence of having examined Brockie at the watchhouse at 1.15 a.m. on October 26. He did not examine Neilson, ns he had been told by Sergeant Austin (hat the ..other person who was with Brockie was so helplessly drunk that he was unable to ask for a doctor. Witness knew Neilson som a years ago, and was aware that he had an injury to his skull which made him much more susceptible to the effects of alcohol than a normal man would be. Whisky would have a very rapid intoxicating action on him, and a mixture of whisky and beer would increase the rapidity of the action. If Neilson were helplessly drunk at 1 o’clock in the morning he would, in witness’s opinion, be equally helpless an hour previously, if he had not drunk any liquor in the meantime. Moreover, having regard to Ncilson’s special disability, he would not at midnight be in a fit state to form a judgment. It would be quite possible for him to appear physically intoxicated and mentally to be so drunk as to be incapable of forming an opinion. Sergeant Austin,, recalled, denied having said anything about another man to Dr de Lautour, and to Mr Robertson stated that Neilson was not helplessly drunk.

His Worship said that he had granted the rehearing on the ground that certain medical evidence was available which through a misunderstanding had not been brought before the court at the original hearing. The evidence of Dr de Lautour did not. after all, carry the matter much further. Brockie had pleaded guilty to being drunk, and Neilson, the owner of the car, was in an even worse state. The court had to consider whether Ncilson could bo charged with being drunk in charge, while Brockie was, in fact, driving. There could be no question that if the owner of the car, sober, and in the car, allowed an intoxicated man to drive it, he should be charged with aiding and abetting, or as a principal offender.. Before deciding that an owner, being drunk and allowing another drunk man to drive, was absolved from liability, the court must be satisfied that he was so helpless when the other man took charge that he was incapable of forming an opinion. The material that he had taken Brockie to his garage, where liquor, provided by Neilson (the owner and intending driver) was consumed. To Brockie, he had stated that he would drive, but Brockie would not allow him, and it was absurd to suggest that he was not capable of forming an opinion (even though it may have been a muddled one), more especially as when he arrived at the Police Station he was truculent and abusive. Considering all the evidence, the court could not but adhere to its previous decision that the accused must be convicted, Mr Robertson submitted that a sentence of three weeks’ imprisonment was out of all proportion to the seriousness of the offence. The prospect of such a sentence had had a very forcible effect on Neilson, and had given him a severe lesson.

The magistrate: He had a lesson before, and when he was previously convicted on a similar charge every consideration was given; him. The public must be protected, and the main thing is to keep him off the road. The injury to his head and the fact that he was not driving will be taken into consideration, and he will be fined £lO, with medical expenses (£1), his licence will be cancelled, and he will be prohibited from driving for 10 years. His Worship added that any application for a re-hearing to allow Neilson to drive would on no account be entertained.

Neilson was further charged with procuring liquor, during the currency of a prohibition order, and was convicted and discharged.