THE LAW ON NEGLIGENCE

Taranaki Daily News, 17 October 1930, Page 9

THE LAW ON NEGLIGENCE

ISSUES FOR FULL COURT

MANSLAUGHTER CASE REVIEWED

FINE POINTS- OF CRIMINAL LAW/

By Telegraph.—Press Association. Wellington, ' Last Night. The Court of Appeal was engaged today in hearing argument on questions of”law reserved in the case of Rex v. Alfred Edward Storey, of Wellington, sales manager, heard at the last criminal sessions of the Supreme Court. Storey was charged that on ? April 13, 1930, on the Ngaliauranga Gorge Road, by negligent driving of a motor-car h® ’• did kill Violet Amelia- Cook and Norman Webb Cook, thereby committing manslaughter, or alternatively by so driving did cause the deaths of Mr. and' Mrs. Cook. At the conclusion of the case for the Crown counsel for the accused submitted that there was no case to go to the jury. The presiding Judge, Sir Michael Myers; overruled this contention. Counsel in cross-examination also sought to ask questions with a view to setting up the defence of contributory negligence on the part of the deceased Mr. Cook and to showing that the braking on deceased’s car was de- ’ fective and that there was a pin loose in the steering gear of deceased’s ear. He also sought to adduce evidence that the terrain at the spot where the deceased’s car went over the bank was inclined to be loose, and this might have contributed to the ultimate cause of the accident. The Chief Justice, however, in disallowing such cross-examin-ation and evidence, ruled that if the collision were caused by the negligent driving of the accused nothing that immediately followed nor any contributory negligence on tho part of the deceased prior to the collision would afford a defence to the charges, unless it could be shown there was some entirely new factor which brought about the death of the two deceased and with which the accused had nothing to do. At the . c'Jose of the case the Judge submitted to the jury" the following issues: (1) Was the collision between accused’s motor-car and the ear in which the Cooks were driving caused by the negligent driving of accused; (2) if so, would the death of the Cooks have resulted but for such negligence of accused? Counsel for the- accused contended that the Judge had no power or right to submit issues to the jury, and that the accused was entitled to a general verdict of guilty or not guilty. The A Judge overruled this contention. After an absence .of three hours the jury returned the following answers to /' the questions submitted: The jury’s answer to question No. 1 is in the affirmative, but the jury strongly recommends that the accused be dealt with leniently on the grounds that, the accident was brought about by an error of judgment. The jury’s answer to question No. 2 is in the negative. Counsel for the accused submitted that this was in effect a verdict of not guilty. The Judge, however, ruled otherwise and directed the jury to find a verdict of guilty, which . it : accordingly did. The Chief Justice stated that in order to establish definitely the law on th® points at issue he would, with the eonsent of counsel, reserve for the opinion of the Court of Appeal the above matters,. He remanded the accused for sen-, tenee on his own recognisance of £5OO. , .. The questions arising being of great importance in criminal. law, it was arranged that the matters should be argued before both divisions of the Court of Appeal. There were accordingly on the bench Sir Michael Myers (Chief Justice), and Justices Herdman, Adams, Reed ,Blair, Smith , and Kennedy. Mr. H. H. Cornish and Mr. N. A. Foden appeared- for the accused, the- SolicitorGeneral (Mr. A. Fair, K.C.) and Mr. C. Evans Scott appearing for the Crown. Mr. Cornish made the following submissions:— ■

(1) The’ evidence tending to show that Cook was himself negligent wan wrongly excluded in' that, if Cook was himself negligent and . his negligence either contributed to-or was’ an effective cause of his death thia circumstance was available. as a .defence ;to Storey.

(2) The evidence relating to the nature of the terrain at the scene of the accident was wrongly excluded, as it might properly be relied upon by th© accused rto show that'Cook’s death was the result- .of misadventure;—

(3) There'was no case to go to the jury either of criminal negligence on the part of Storey on of Storey’s acts having actually caused the death of Cook. °(4j There was a distinction in. New Zealand between negligence as a foundation of civil liability-and negligence as a foundation of criminal responsibility, and this distinction was not acted upon by the learned Judge, nor waa the jury directed by him to that effect during the trial. (5) The Judge had no power to ask the jury to answer issues, and so in effect prevent’the jury from answering “guilty” or “not guilty.” (6) If it’was competent for the Judge to -put issues to the jury, then the second issue should have been so framed as to enable tile jury to say whether or not the negligence of Storey caused the death of Cook. •

(7) The verdict of the jury WM either, one or “'not guilty*’ or inconclusive. ■ ; - ‘ Mr. Cornish contended that the second charge against Storey, though laid under the Motor Vehicles Act, 1928, was in effect also one of manslaughter. The evidence showed that after the impact Cook’s car had crossed tho road and made for an open and level space on the . side of the road, and after reaching there had then fallen over the-side of the bank. Counsel submitted that if such crossing was involuntary and was caused by the impact Storey was. liable for the deaths ensuing, but if the crossing was voluntary then Storey was not so°liable. No evidence had ben brought in the Court below on this point, and the accused was entitled to the benefit of tho doubt. At this stage the Court adjournal till to-morrow.