EVIDENCE NOT SUFFICIENT

Southland Times, Issue 24001, 16 December 1939, Page 4

EVIDENCE NOT SUFFICIENT

Intoxication Charge Against Motorist INFORMATION DISMISSED BY MAGISTRATE “It is better that a guilty man should go free than that an innocent man should be punished, and it sometimes happens in the administration of British law that a guilty man is not convicted.”

This remark was made in the Magistrate’s Courtyesterday by the Magistrate (Mr R. C. Abernethy) in dismissing a charge of being intoxicated while in charge of a motor-car against John Alexander O’Donnell, aged years, a salesman, of Dunedin. Mr J. C. Prain appeared for the accused ana Senior Sergeant W. T. Kelly prosecuted. . Constable T. Crawford said that about 12.45 a.m. on Thursday he saw three men leave a shop west of The Southland Times building in Esk street. They were slightly unsteady on their feet and appeared to be under the influence of liquor. One of the men got into the driver’s seat in a car parked behind a taxi. It was necessary for the driver of the car to back to get clear of the taxi and during the attempts to get away the wheels of the car bumped into the kerb twice. He and Constable Knapp stepped on to the road to stop the car. The driver, who was the accused, got out and was asked to walk a short distance. He did this, his gait being only slightly unsteady. In producing his licence, the accused dropped a packet of cigarettes and had difficulty in recovering them. Hie packet could quite easily be seen. He also dropped some cigarette cards, and said, “you pick those cards up.” They decided the man was not m a fit state to be in charge of a motorcar. When asked to come to the Police Station, the accused wanted to stop and argue. The witness arrested the accused and took him to the station, where he was examined by a doctor. The accused’s breath smelled of liquor. Constable A. Knapp said that he was near the entrance of Cambridge Place when he noticed the men. The driver of the car told him he had had no liquor. EVIDENCE OF DOCTOR Dr W. J. Barclay said that he examined the defendant, who was very angry and was all the time protesting his innocence. His pupils were widely dilated and his pulse was 120, but his co-ordination was quite fair. He said he had had no liauor for a week, but that night he 'took turns with some other men in travelling through the streets and speaking through a megaphone to assist the showmen. He could not say the accused was unfit to drive a car.

Constable L. F. Woodsford said that when the accused was taken to the Police Station he was definitely under the influence of liquor. Dr R. Burns Watson said he examined the accused ai 1.45 a.m. and he was of the opinion that the man had taken alcohol. He was .Very talkative and excitable, his pulse was T4O and his pupils were dilated. However, he performed co-ordination, tests very satisfactorily. At that time he would be capable of driving a car. (In Ulis' case the evidence was mainly a matter of opinion as far as the con-stables-were- concerned, said Mr Prain. If, it were-not for the meticulousness with which the constables gave their evidence, there would be no proof of intoxication. There was no story of erratic driving, and there was no suggestion of quarrelsomeness. In this case of “opinion evidence” there was such a shred of evidence that it would be extremely difficult to convict, and the accused should be given the benefit of the doubt.

Thomas Brown, owner of a rentalcar service in Invercargill, said that when the accused took a car at 10.15 p.m. he was sober. About 11.30 the accused returned to collect a parcel and the man was not under the influence of liquor at that time.

James Frederick Andrews, motormechanic, gave evidence of the accused being sober during the night. John Alexander O’Donnell, said he began his work of using the megaphone to induce the people to go to the carnival in Leet street rather than to. the Royal Show, at 6 pan. The only drinks he had during the day were several in the morning. “I am not satisfied with this case,” said the Magistrate. He had not heard the truth from the accused in the witness box. The man stated that he had had no liquor after the morning, but he was inclined to think that he had had drink at a later period of the day. Intoxication might be a fact or a matter of opinion—it might be obvious or just a border-line case. In this case he did not think the evidence was sufficient to convict and he would dismiss the information. CHARGE DISMISSED A charge of being intoxicated while in charge of a motor-cycle against Reginald James Kerr, aged 22, was dismissed. Kerr, who was represented by Mr J. C. Prain, pleaded not guilty. Senior Sergeant W. T. Kelly, who prosecuted, said that about 9.5 p.m. on December 13 Inspector J. Ireton was driving north along the North road. Near the West Plains road he saw a motor-cycle being driven in an easterly direction along the West Plains road at a fairly high speed. Near the corner the driver almost lost control of the motor-cycle which swerved on to the incorrect side. The driver failed to give way to a stream of traffic which was proceeding along the North road and went between two cars, an accident being averted only by the sudden application of the brakes by one motorist. The driver was the accused and he was slightly unsteady and showed signs of having had liquor. He asked the accused how many drinks he had had and Kerr said three. Inspector Ireton gave evidence on the lines of the statement. To Mr Prain, the inspector admitted that there was loose gravel at the corner of the two roads and that, with a pillion passenger, a motor-cycle might easily skid or swerve. Dr W. J. Barclay gave evidence of examining the accused. His pulse was accelerated, he said, and his eyes were bloodshot; otherwise there were no signs that the defendant had taken liquor. . For the defence Mr Pram said that the inspector had admitted that there was gravel at the corner of the road and the Court would admit it was difficult for a motor-cyclist not to wobble, especially when turning a corner. Except for what might have been a disregard of traffic regulations on the part of the accused there was no evidence that the accused had done wrong. The doctor’s certificate was particularly clean and he submitted that the evidence of the prosecution did not point to intoxication. Dr D. R. Jennings also gave evidence of having examined the .accused and said that in his opinion Kerr was fit to drive a motor-cycle. Giving evidence the accused said he

was at The Rocks, Riverton during the afternoon with a friend. He bought three bottles of beer to take with them when they made a call at a friend’s house on the way back to Invercargill. At Wrights Bush they had tea with the friend of the accused, and he had four glasses of beer. Near the corner of the North road and the West Plains road there was some loose gravel. He used his brakes slightly but it was impossible not to swerve a little in the gravel. He considered he had plenty of room to pass between the cars on the North road. The defendant said he had taken the West Plains route back as the tail light on his motor-cycle was not functioning. The charge was dismissed.