"BORDER LINE CASE"

Bay of Plenty Beacon, Volume 3, Issue 211, 11 September 1940, Page 5

"BORDER LINE CASE"

INTOXICATION CHARGE DISMISSED SEQUEL TO COMMERCE' STREET COLLISION As a sequel to a collision in Commerce Street at 7.25 p.m. on j Saturday, August 24th, Tamati Mihanga aged 38, a farmer, appeared before Mr E. L. "Walton, S.M., yesterday to answer a count of being intoxicated whilst :n charge of a car. Represented by Mr R. F. Smith, Kai'whata pleaded not guilty and. the police had to bring a full battery to bear, on the case. In his decision, which dismissed the information, the magistrate! said he did not want it to be thought that medical practitioners' evidence was conclusive. Three witnesses had stated that while accused showed signs of being under the influence of liquor, they were not prepared to say he was intoxicated. Dγ A. Fletcher Cole described Kaiwhata's almost perfect reaction to the customary tests and said that accused was not intoxicated Three other charges were preferred against Kaiwhata: driving in a manner dangerous to the public; using obscene language and not being in posses-; sion of a current warrant of fitness. To all of these accused pleaded guilty and penalties were imposed. The first witness called, Harry Robert Jackson, an employee of the Post and Telegraph Department, said that at about 7.25 p.m. on Saturday, August 24th, he was driving his own car along Commerce Street,, towards the town. He was proceeding at about 15-20 miles per hour and was about four feet out from the kerb. He saw a car approaching and it was swerving from one side of the road to the other. Witness was on the correct side of the road. He applied his brake but the other car carried on and the collision occurred.

Accused's Question. Answering Sergeant Farrell, witness said he s»poke to the driver of the car, which was pulled up in the centre of the road after striking wit ness' car. "Kaiwhata asked me what I was doing on that side of the said witness, "and " I asked him .where he thought I should be: underneath the road." Witness said accused was very excitable and was not very sjlef<dy on his feet. Afterwards he could smell liquor on accused, who used obscene language in a loud voice which carried in the still air. There were people in the vicinity and someone told the Maori to be quiet. Witness was definite that accused showed signs of having had liquor. In, answer to Mr Smith, witndsf] said he did not know that accused had his wife and child with-"him." C. Gordon Lucas, the next witness, said he was walking along Com merce Street and noticed a car proceeding in an erratic manner. It was swerving and he thought at one stage that it would mount the pavement. It hit the car driven by Jackson. Kaiwhata was bleary-eyed; unsteady on his feet and thick in speech. Witness was not prepared to say accused was intoxicated. Medical Evidence. Arthur Fletcher Cole, registered medical practitioner, said he jhad examined Kaiwhata at the request of the police. He put accused through the usual routine tests for co-* ordination and he performed them well. His pulse was normal; he was able to pick up a pin from, the floor and he wrote his?:name wU:ft|ut any hesitancy: in fact he a flourish. His eyes jivfcre inflamed but not more" than usual in a-:Maori. In answer to the; Magistrate, Dr. Cole said it was a ..borderline case; very much so. Accused had had some drink, he had admitted it but would iiot-say at what time. He was slightly under the influence but he was not intoxicated. Re-examined by Sergeant Farrell, witness said that the deep sleep into ; which accused had fallen when taken to the Police Gaol cells Av'as not necessarily engendered by alcohol. I Police Case Continued. 1 Exhvard Hayden, service station' attendant, said he was standing in the open facing the street and saw a car, travelling from the direction of the Strand. It was zig-zagging: not violently, but it looked as though the driver had some difficulty in maintaining a proper course. Witness did not go to the scene of the accident as he could not leave his position.

Raymond Aubrey Auson Prater, police constable stationed at Whakatane, said he was called to the scene pi" the accident.' Kaiwhata was very unsteady on his feet; he was extremely talkative and his arti dilation was imperfect. Witness said he arrested accused and later, in the cells, it had been impossible to awaken him from a deep sleep, In the witness box, Sergeant Farrell said that Kaiwhata appeared to, be very much intoxicated and behaved like an ordinary drunk, shout* ing and making considerable noise when placed in the cells. Shortly afterwards witness had visited the cells and found accused in a deep sleep. In witness' opinion, Kaiwhata was not in a fit state to drive a car. Defence Submissions. Mr Smith submitted that Dr Cole's evidence was clear and definite. Kaiwhata was not intoxicated. The explanation for the slight swerving of the car was that accusted had his wife and small son with him and the boy was jumping about. It was for the moment that accused's! attention was directed at the boy that he swerved across the road. By the evidence of tlie medical tests, which accused had performed perfectly, it was apparent that Kaiwhata was not intoxicated. It was not denied that he had had a drink or two.

It was a border-line case, said' the Magistrate. The doctor's evidence was not conclusive but had to be taken into account* The man had had liquor but as far as smelling was concerned that would apply whether one drink or twenty drinks had been consumed. Witnesses were not prepared to say that accused was intoxicated but the police affirmed that he had the appearance of an ordinary drunk. The cha,rge would be dismissed. Dealing with the other offences, the magistrate fined accused £7 10s and costs for driving in a manner dangerous to the public; £5 on the obscene language count and 10s and costs for not possessing a current warrant of fitness.