SECOND TRIAL ON A CHARGE.

Otago Witness, Issue 3773, 6 July 1926, Page 7

SECOND TRIAL ON A CHARGE.

CONTRARY TO BRITISH JUSTICE. A COUNSEL'S"CONTENTION. J AUCKLAND, June 30. “This is a very interesting case, and brings up one of those points that are not often raised in this country,” said Mr J. W. Poynton, S.M., when announcing in the Police Court that, for the benefit of justices of the peace and the police, he would deliver a written judgment in the charge of negligent driving preferred against Margaret Esther Rogers. Defendant was charged with negligently driving a motor car on Broadway, Newmarket, contrary to section 28 of the Motor Vehicles Act. The case arose out of an accident on January 8, in which Emma Thorbury, an elderly woman, died as a result of being struck by car Previously Mrs Rogers was acquitted in the Supreme Court on a charge under section 27 of the Motor Vehicles Act of negligently driving a car so as to causa the death of Emma Thorbury.

The point was raised by Air M’Veagh* who appeared for defendant, that, with the omission of a reference to killing, the charge against defendant was the same as that which had been preferred against her in the Supreme Court, and that as a person could not be tried twice for the same offence it must fail. Counsel, therefore, submitted pleas of (1) “Autrefois aquit,” and (2) “Not guilty.” Witnesses who had given evidence at the Supreme Court trial had the depositions then taken read to them for confirmation. Amplifying the plea “Autrefois acquit,” Mr M Veagh submitted that the only difference from the Supreme Court indictment and the present charge against defendant was that from the sentence: “That she did negligently drive a car, thereby causing the death of Emma Thorbury,” the latter clause had now been omitted. At the Supreme Court trial it was conceded on all sides that the death of the woman had been the result of the accident, and the whole question for the jury to decide was whether accused had negligently driven the car. “That is not only substantially the ques- . tion before your Worship,” continued Mr M'Veagh, “but it is also actually the same charge.” Mr Poynton: A case of the old maxim, “nemo debit bis vexari pro causa” (no one shall be harassed twice with one and the same cause). ‘That is so,'* replied Mr M’Veagh, "or as is more briefly put, ‘pro uno delicto* (for one crime). It is on the merciful principle of British justice that a person may not be charged twice with the same offence that this case is based.” said Mr M’Veagh. Proceeding to quote authorities in support of the first plea, he said, one was the case of the Queen versus King in which defendant. having been tried on a charge of obtaining goods under false pretences, it was held that a subsequent -charge of larceny of the same goods could not succeed. “I nave been furnished with a happy illustration,” added Mr M'Veagh. “If. a nran >* charged with being drunk while in chargo of a car, and the magistrate holds that ho was in the car. but not drunk, to chargo him afterwards with being drunk would bo an unheard of thing.” Counsel submitted that there was no negligence. It was shown from the evidence of incidents that had occurred that defendant had driven slowly. Medical evidence had been given that deceased was of a highly nervous temperament, and that it was likely that in an emergency she would lose her head. Two boys had given evidence that if she hod continued on she would have been safe. Mrs Rogers made a frantic effort to avoid striking the pnfortunate woman. Senior Sergeant Edwards, who prosecuted, quoted the case heard before Mr Justice Herdman at Hamilton, in which a man was brought before the court on a charge of indecent assault which the justices reduced to a charge of assault, sentencing the man to one month’s imprisonment. That did not interfere with a resumption of a charge of indecent assault. “That is a different matter, said tne Magistrate. “There is no analogy in the charges.” “But th* facts were the same, replied the Senior Sergeant. . “Quite sp,” remarked the Magistrate, ‘ but the charges differed.” “Our answer is that the man had not been imperilled on the major charge as was defendant in this case,” said Mr M Veaglw Decision was reserved.