POINT OF LAW

Timaru Herald, Volume CL, Issue 22063, 9 September 1941, Page 4

POINT OF LAW

Ruling By Supreme Court

DISMISSAL OF INFORMATION SET ASIDE (P.A.) DUNEDIN, Sept. 8. Mr Justice Kennedy delivered judgment this morning in ah appeal by Adam Mackie, police constable, against the decision ot the Magistrate on a point of law in convicting Charles James Eccles Oh a charge Of seridihg a telephone message of an offensive nature and dismissing a chatge brought against him of using indecent language in a public place. The judge set aside the dismissal and remitted the matter to the magistrate for disposal under the second charge. The magistrate, said his Itonour in his judgment, found that the defendant had in fact used the telephone in the public cabinet at the comer of Arthur and Rattray Streets for a conversation wjfh Miss X at a certain hospital, such conversation being of an Indecent nature. He was unable to find on the evidence that any member of the public could have heard the indecent words used. He held that there was hot sufficient .evidence to justify him in holding that the indecent words used by the defendant were or could have been heard by any person In a public place. It would be observed, his Honour continued, that the only question was, Did the defendant use indecent language in a public place? Usually this could be proved only by calling witnesses present in a public place who heard the language used, but in the peculiar circumstances of this case this was proved, although no person ih a public street actually heard the indecent language. The wdrds Uttered in a public place were heard elsewhere because they were telephoned, ‘“this determines the question of law,” said his Hondur. “At the hearing it was submitted that by convicting on the second charge the learned magistrate had disposed of the whole matter and that to remit the case to him with a direction to convict on the first charge would result in the defendant being punished twice for the same offence. This is, in my view, no foundation for this submission. The two offences are separate and distinct offences; and a conviction for one does not preclude a conviction for the other. The dismissal on the first information is set aside. The matter is remitted to the learned magistrate with the opinion of the Court that the offence charged is constituted by the use of indecent language in a public place, and with a direction to dispose of the matter in accordance with this opinion.”