MOTORIST AGAIN CHARGED

Southland Times, Issue 23678, 29 November 1938, Page 8

MOTORIST AGAIN CHARGED

HEARING IN LOWER COURT MAGISTRATE RESERVES DECISION (United Press Association) PALMERSTON NORTH, November 28. An unusual plea of autrefois acquit was heard in the Magistrate’s Court 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 Railway’s Act with attempting to cross a line when a train was approaching. The two charges had arisen from the same set of circumstances. The Magistrate pointed out that the Supreme Court would not have punished the defendant for the offence with which he was now charged here. There would be an offence whether there was bodily injury or not or whether or not the car was hit by the train. Mr McGregor submitted the defendant could not be charged with a breach of a statutory duty that had been the basis of a negligence claim in the Supreme Court. t “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,” said the Magistrate. “However, as Mr McGregor has raised the issue I won’t decide it now." Decision was reserved.

Before hearing this case the Magistrate had before him a charge ■’.oncerning another railway crossing accident that had been the subject of Supreme Court proceedings. T. S. R. Taylor, 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 the result of the accident as well as injuries Mr McGregor suggested that where the driver of a car already had been charged with an indictable offence it was unnecessary that he be brought before the Court for a statutory offence. Apparently the Railway Department 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 21/- costs.