CROWN CASE FAILS

Wanganui Chronicle, Volume 87, Issue 40, 18 February 1943, Page 3

CROWN CASE FAILS

DRINKING PARTY AT MILITARY CAMP ASSAULT CHARGE FOLLOWS LIQUOR FROM WET CANTEEN Described by counsel for the defence as a “pretty wild party,” a midnight gathering at a North Island military camp was followed by the trial in the Supreme Court, Wanganui, yesterday of a soldier, Driver Henry Allan Ford, aged 23, who was acquitted by a jury on a charge of assaulting William Roderick Sundborn. The case was heard before Mr. Justice Smith, and the jury returned its verdict after a retirement of 25 minutes.

Accused, in a statement to the police, alleged that on the night of January 18 he was supplied with a gallon of beer by a member of the canteen staff. The price paid was 7s. Accused also stated that he later attended a gathering in one of the hospital rooms where there were four to five gallons of beer. After the jury returned with its verdict accused was discharged. The Crown Prosecutor, Mr. N. R. Bain, conducted the case for the Crown, and Mr. A. M. Ongley (Palmerston North) appeared for accused. The jury consisted of Messrs. H. May (foreman), C. Belfit, F. L. Armstrong, F. M. Melody, A. E. Couchman, T. Rosser. R. E. Vincent, W. Heath. W. G. Turner, W L. Fowler, J. F. Quirk, and L. Hartley. Captain B. W. Clouston, N.Z. Medical Corps, said that on January 19 he was called to attend Sundborn, who had a haematoma of the left orbit (commonly known as a black eye). He also had abrasions on the left arm and hand, and was put on “excused duties” for a week. Cross-examined by Mr. Ongley, witness said the injuries were not serious. They could have been caused in a fight. Sundborn, in evidence, said he was a grocer by occupation and residing In Wanganui. On January 18 he was employed at a military camp with the rank of sergeant. That night he went to a hut in the hospital grounds at the invitation of two others, McCready and O'Connor, to drink beer. Witness added that he had not had a drink all day. Ford, whom he did not know, was also in the hut, but appeared to be slightly under the influence of -liquor. Accused said he had £3O in his hut and witness told him that he was foolish to leave it there, but Ford replied that he had hidden the money where nobody could find it. Witness retorted that he would bet Ford £3 that he could find it. When witness showed him the £3 Ford said he would cover it with a cheque, but witness declared that he would not accept the wager because he doubted that accused’s cheque would be any good. No wager was made and about midnight McCready and Ford left the hut.

Witness added that for about hall an hour he sat in the hut waiting for these men to return. At 12.30 a.m., however, he left the hut and met accused, who was just returning. They walked through the camp together and when about 200 yards from a row of huts. Ford struck him, saying: “Take that you b . You thought I was drunk so I waited for you and you played into my hands. Give me that £3 or I will b well kill you.” By this time, witness added, he was on the ground. Ford pounced on him and started “putting the boot in.” Witness told accused that if it was because of the £3 he was knocking him about he would give it to him. Ford allowed witness to rise and the £3 was handed over. Witness added that his shirt was torn. He later told McCready that Ford had robbed him of £3. but accused, who was present, said: “If you don’t shut up fou will get more.” Four Men in Party.

Cross-examined by Mr. Ongley, witness said six to ten bottles of beer were consumed in the hut in about an hour. Four men were in the party. Mr. Ongley; Where did this liquor come from? Witness: It was in the hut when I got there.

That hut is in the hospital grounds? —“Yes.”

Wasn’t there jugs and a gallon of beer?—“To my knowledge there was not.”

Is it not a fact this drinking party took place in an unoccupied room in the hospital?—"No, it was in the hut.” Was there not a military court of inquiry set up?—“Yes, there was.” Do you know that this inquiry found that the drinking took place in the hospital?*—“l don’t know what was found at the inquiry.” Witness added that he was marched out and returned to his civilian occupation as a result of the inquiry. He appeared before three lieutenants, but no charge was read to him. He was asked at the inquiry if several jars and kegs were at this party and replied in the negative.

Cross-examined further, witness said Ford was not annoyed when told that his cheque was no good. When the alleged assault took place witness was struck without warning. Mr. Ongley: A most unusual way of a fight commencing, was it not? In the fight you were both down at one stage. Witness: He was on top of me.

While you were on the ground this fight went on and you were doing your best to strike him?—“l was doing my best to defend mvself.”

Is it not correct that the marks on vour hand were abrasions, not bruises?—“lt was the result of a boot.”

You say the only mark as a result of a kick was a scratch on one hand?— “I don’t say that. The mark on my elbow may have been the result of a kick.”

The doctor says the scar on your elbow could have been caused by gravtfl.—“l don’t think »u.” Then you disagree with the doctor? —“Yes. I do.” You made a bet with a stranger. Is that your usual attitude?—“lf anybody talks and there is betting to be had, I’m anxious to be in.” Asked to Attend Inquiry. Re-examined by Mr. Bain, witness said he was asked to attend the inquiry. No charge was read out and he was merely asked questions. Recalled by Mr. Bain, Captain Clouston said that under certain circumstances the marks on Sundborn’s hand and elbow could have been caused by a kick.

George McCready, barman, Auckland, said he was. employed at tne camp canteen on January 18. At about 10.30 p.m. he went with Fore to O’Connor’s hut in the hospital grounds and had some beer which was produced. When Sundborn arrived at the hut he was ouite sober. Witness heard no discussion between Ford and Sundborn. Witness left the hut with Ford and after he had been asleep for some time accused and Sundborn came to his hut. Accused appeared to be a bit intoxicated and seemed to act that way, but was able to talk. Sundborn also gave the impression of having had a few beers and had marks on his person. Mention was made of a bet and Ford said: “You thought I was drunk, but I waited for you, you Cross-examined bv Mr. Ongley, witness said he was working in the wet canteen that night from 7 o’clock till 9 o’clock. Accused was in the canteen during that period, but witness did not serve him. It was not correct to say that before leaving Ford purchased a gallon of beer. The sale of liquor

for consumption away from the canteen was not permitted. Witness added that he invited Sundborn to O’Connor’s hut. Mr. Ongley: Did you go to an unoccupied hut at the hospital? Witness: No, sir. How many bottles of beer were there in O’Connor’s hut?—“To my knowledge about half a dozen.” Do you seriously say that the only beer consumed by you men in that time was six bottles of beer?—“Yes; I only had four drinks.” You know a court of inquiry was set uo to inquire into this episode?— “Yes.” Were you given notice to attend?— “They sent down for me.” Did you know accused was taken <0 point out the room in the hospital where the drinking took place?—“No, I did not know that.” No Charge Made. Was any charge made against you? —“No; I was told that the inquiry was held because of beer being in the camp other than in the wet canteen.” Witness added that he was marched out and returned to civilian life. O’Connor told him that he had been fined. In answer to a question by His Honour, witness said he was unfit for military service. Mr. Ongley: Did you hear any arguments that night about bets or money? Witness: Not in my presence. I heard no argument or high words about money. When you left the hut did you say where you were going?—“No; I did not. feel well and was going to bed.” I put it to you that you were all a bit hazy by then?—“No, that is not so.” Was there any beer left?—“l don't know.” Corporal Charles Patrick O’Connor said he was attached to the hospital staff at the camp. He went on duty at 9.55 p.m. on the night in question. He asked Ford, Sundborn and another man to his hut and they arrived about 9.45 p.m., Sundborn corning later than the others. Witness looked into the hut at various intervals. He had returned from leave the night before and had brought four bottles of beer vfith him. He had another bottle which had been in the hut for some time. Apart from this he did not see any other liquor consumed there. When he looked in at the hut he did not notice anything unusual about Ford or Sundborn. Cross-examined by Mr. Ongley, witness said Sundborn and Ford were the only men in the hut at midnight. He did not see any liquor other than the five bottles. Mr. Ongley: Five bottles of beer would not last all that time? Witness: That is all the liquor I saw. Liquor in Tent. You were fined, were you not?—“I was fined £2 for having liquor in my tent.” And Sundborn and McCready were marched out. Don’t you think that was a more severe penalty?—“You would not call that a very severe penalty.” His Honour: More of a relief than a" penalty. Constable G. C. Donnelly (Waiouru) said Ford, when interviewed, admitted having a fight and said Sundborn had given him £3, which he handed to witness. Accused also made a lengthy statement in which he declared that he bought a gallon of beer at the canteen. Later, he went to a room at the hospital where there were four or five gallons of beer. Accused also stated that Sundborn “got a bit nasty” and this started the fight. Accused said he intended returning the £3 to Sundborn, but the provost sergeant-major oame along. Case For Defence.

Opening the case for the defence, Mr. Ongley submitted that Sundborn had told an improbable story. What really happened was in the nature of a drunken brawl after a party, which lasted till about 2 a.m.

Accused, in evidence, said he went into camp in January, 1941. He did not know Sundborn before January 18 last. From 6 p.m. to 9 p.m. that night he was in tne wet canteen and had 12 to 14 beers. He paid McCready 7s for a gallon of beer which was delivered in McCready’s hut. Witness and three others drank this beer in the hut, after which two soldiers obtained three jugs. McCready and O’Connor subsequently left with the jugs and also tne empty gallon jar. A remark was then made about going to the hospital and witness went to a room on the side near the nurses’ home. The three jugs and the jar filled with beer, were brought into the room. They spent the time talking and drinking beer. Witness mentioned that he had £3O in his hut and Sundborn said he would bet £3 he could find the money if given time. Later, McCready asked witness to accompany him home.

Ford added that he took one jug of beer to a “cobber’s” hut, where he “woke the boys up an gave them a drink.” The subject of the bet was raised later in the night, when Sundborn got “hot and bothered.” He flashed three £1 notes and if it had not been for O’Connor would have caused a fight in the hospital. Toward the end of the party everybody was talking rather loudly and O’Connor gave them a broad hint that it was time to go. Witness added that Sundborn, as they walked along, was arguing about the bet and the money. “I told him that if he wanted a fignt here was the place to have it. I could not tell you who struck the first blow, but we got into grips. I was under for a while and tnen got on top. I was trying to belt him and he was trying to belt me. He was getting the worst of the deal and yelled out ‘Don’t make too much of a mess of me.’ ” said witness. The light then stopped and Sundborn handed him £3. He denied kicking Sundborn.

“Followed The Beer.” Cross-examined by Mr. Bain, witness said he could not say why he took the £3. He went to the hospital because all the beer was going there and he followed it He was sure of these facts in spite of the liquor he had consumed. Mr. Bain: How many beers can you stand? Witness: A good few. Accused added that he did not usually fight after a few drinks, but if anybody “double-crossed” him he “went in” straight away.

Re-examined by Jfr. Ongley, witness said he pointed out this room to the military authorities at the time of the inquiry. In his address to the jury, Mr. OngIcy submitted that more liquor was consumed than the Crown witnesses had stated. Counsel added that the jury could believe that it was a “pretty wild party.” Men did not usually sift up till one o'clock in the morning over four or five bottles of beer. Sundborn’s story of the assault was incredible and not consistent with ihe British Army. Men did not suddenly strike each other without provocation. If a man agreed to light and was struck, he could not complain that he had been -assaulted. There was nothing in the Crown case to help the jury. Sundborn’s torn shirt, produced in Court, was more consistent with a scuffle as described by accused. No evidence was given bv the military doctor to support the allegation that Sundborn had been kicked. Crown’s Submissions Apart from the extent to which liquor might affect a recollection of what occurred, the Crown was not concerned with the amount of liquor

consumed, said Mr. Bain, addressing the jury. The Crown, in such cases, represented the people, and public interests must be protected. Accused, on his own admission, consumed 12 to 14 beers before the party started and had also stated that he had part of a gallon jar before going 'to the hut in the hospital grounds. In view of this the jury could weigh up how much credence could be placed on his evidence. Sundborn, on the other hand, had no liquor before going to the hut. Accused had also said, under cross-examination, that when in liquor he was inclined to “hoe in” if anybody crossed him. The Crown held that this was what happened when the alleged assault was committed. Drunkenness, generally speaking, was no defence for crime, except where the condition of the person concerned was such that he was deprived of ability to form any intention.

His Honour, summing up, said that a charge of robbery preferred against accused was thrown out by the Grand Jury, probably because of insufficient evidence to support such a charge. In the present case accused was charged with assault. Assault occurred when one person struck another without that person’s consent. The law rightly made this provision because It was in the interests of the community that people should keep the peace. The issue between the Crown and the defence in this case was whether the Crown had satisfied the jury beyond any reasonable doubt that accused struck Sundborn without his consent. His Honour, reviewing the evidence, referred to the difference between Sunborn’s and accused’s version of the affair. If Sundborn consented to the tight accused was not guilty of assault, unless Sundborn’s injuries were such that they wore against the public interest. If there was an agreement to fight, one would expect a black eye, bul ; would not expect, kicking. His Honour referred also to the extraordinary difference in the evidence as to whether the liquor was consumed in a hut or in a room at. rhe hospital. “It. may occur to you,” His Honour added, “that one side or the other is just simply not telling the truth.”

Aftjr a retirement of 25 minutes the jury returned a verdict as stated.