UNSUCCESSFUL PLEA

Otago Daily Times, Issue 23692, 27 December 1938, Page 13

UNSUCCESSFUL PLEA

DEFENCE OF AUTREFOIS ACQUIT FAILS THE MAGISTRATE'S JUDGMENT In a reserved decision delivered in the Magistrate's Court at Palmerston North a few days ago, Mr H. P. Lawry, S.M., convicted John James Francis Levens, taxi driver, on a charge of attempting to cross a railway line when it was not clear, and ordered him to pay costs (19s). The decision stated:—The defendant had, on November 2, 1938, been acquitted by a jury in the Supreme Court, Palmerston North, of a charge on indictment, that on July 7, 1938, at Palmerston North, he did negligently drive a motor vehicle and did thereby cause bodily injury to Marjory Ethel Isaacs, Elsie Rebecca Isaacs, and John Keene Wood. Defendant entered a plea of autrefois acquit. The law is clearly set out in Halsbury at page 153. There it is stated: " The question is whether defendant has previously been in jeopardy in respect of the charge on which he is araigned, for the rule of law is that a person must not be put in peril twice for the same offence."

" Halsbury goes on to say: j The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction on the other, not that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal in the previous charge necessarily involves an acquittal of the latter Defendant can only succeed on such a plea if the charge to which he pleads is one in respect of which he could have been legally convicted on the prior occasion, or is one in respect of which by Statute previous proceedings for the same cause are a bar to subsequent proceedings.'

"Smith v. Hickson dealt with three charges under the Licensing Act, and the distinction is made of a series of acts constituting separate and distinct offences. Mr McGregor stresses the reference to Wemyss v. Hopkins. L.R., 10 Q. 8., p. 378, in support of the doctrine that, where the same act or omission constitutes an offence under more Acts or sections of an Act than one, the offender is liable to be prosecuted and punished under any one or more Acts or sections, but shall not be punished twice for the same act. "The ingredients of each offence, however, must be identical. If there Is one ingredient which has to be proved in the first charge but not in the subsequent charge, or the several statutory provisions aim at the suppression of different classes of mischief the defence is not admissible. "In the case in which defendant was acquitted it was necessary for the police to prove not only negligence but also bodily injury to some person. In the present case it is not necessary to prove bodily injury to any person, such injury being attributable to negligent driving. Facts would be sufficient to warrant a conviction in the previous case which might fall far short of sufficient to warrant a conviction on the indictable charge. The ingredients of the case are, therefore, not identical. This is sufficient to defeat the plea. The plea is also ineffectual because on the indictable charge defendant was never in jeopardy of being convicted on the present charge. The indictable charge was dealt with before a jury which had no jurisdiction to deal with a summary charge. . . . "An acquitaJ on a charge of manslaughter is not a bar to an indictment or to a count in the same indictment on the same facts for the offence of driving to the danger of the public under the Road and Traffic Act, 1930. The dismissal of a major charge does not necessarily involve the dismissal of a minor charge on the same facts. I must, therefore, hold that the defence of autrefois acquit is not available to defendant."