INDICTABLE CHARGES

Otago Daily Times, Issue 23669, 29 November 1938, Page 10

INDICTABLE CHARGES

THE EFFECT OF ACQUITTALS IMMUNITY NOT ACQUIRED TWO CASES BEFORE COURT cPeb United Press Association* PALMERSTON N., Nov. 28. The unusual plea of autrefois acquit was heard in the Magistrate's Court to-day when John James Francis Levens was charged with having attempted to drive a car over a railway crossing at a time when it was not clear. Mr G. I. McGregor, who appeared for the defendant, told Mr H P. Lawry, S.M., that the accused had been acquitted in the Supreme Court on a charge of negligent driving causing bodily harm. Now he was charged under section 9 of the Government Railways Act with attempting to cross a line when a train was approaching. The two charges had arisen out of the same set of circumstances. The magistrate pointed out that the Supreme Court could not have punished the defendant for the offence with which he was now charged. There would be an offence whether there was bodily injury or not. or whether or not the car was struck by the train. Mr McGregor submitted that the defendant could not be charged with a breach of the statutory duty that bad been the basis of the negligence claim in the Supreme Court. " It looks as if the evidence which would be sufficient to justify a conviction in the present charge would not be sufficient to justify a conviction in the Supreme Court," the magistrate said. "As Mr McGregor has raised the issue, however, I will not decide on it now." Decision was reserved.

Prior to hearing the above case the magistrate had before him a charge concerning another railway crossing accident that had been the subject of Supreme Court proceedings. In this case, T. S. R. Taylor, who was represented by Mr McGregor, pleaded guilty to having attempted to drive a car across a level crossing when the line was not clear.

Inspector Cummings told the court that the defendant's car had been struck by a train, causing the death of two passengers. The defendant had been tried in the Supreme Court on a charge of negligent driving, causing death, and had been acquitted. After pointing out that the defendant had had much worry and expense as a result of the accident, as well as injuries, Mr McGregor suggested that where the driver of a car Ird already been charged with an indictable offence it was unnecessary that he should be brought before the court for a statutory offence. Apparently the Railways Department had instructed the police to take action. Counsel suggested that one prosecution was sufficient in such cases, and he asked that the defendant be convicted and discharged. "Cases of this sort are not common in New Zealand, although I have had them before," said Mr Lawry. "There was a case in Christchurch last week when the magistrate took the view that the law did not give immunity from further prosecution." Mr Lawry convicted the defendant, and ordered him to pay 21s costs.