WITHOUT PREJUDICE

Bay of Plenty Beacon, Volume 8, Issue 43, 26 January 1945, Page 5

WITHOUT PREJUDICE

POLICE ACTION DISMISSED STOCK ON KIRKBRIDE'S ROAD

On the grounds that no one coulcf swear to the_ fact that the cattle named in the information were actually straying upon a dedicated road ? Mr G. Gtley succeeded in having a case against H. A. Wardlaw, a Waimana «*•■... dismissed at the sitting of the Whakatane Magistrate's Court lasit Tuesday. This gather surprising verdict by Mr E. L» S.M* ; came as a climax to a case which had been insti- " tuted after a long series of complaints by G. Kirkbrid'e who also gave evidence for the Police. Th« Magistrate intimated' that he would dismiss the evidence without prejudice in order to allow the police to take any further ks -action they may deem necessary. In answer to the that on December 22 defendant permitted six mil'king cows to wander at large on Kirkbride's defendant through counsel, pleaded not guilty. Constable Thomassen* in evidence said that he. visited Waimana at 10.15 a.m. and had noted the six cows at large on Kirkbride's Road. Defendant admitted ownership to him but was in a hurry to get away to help a neighbour to harvest. Witness described the approximate posi- . tion of the cattle and also the con - dition and nature of the road which Avas not fenced off on its approach Ito Kirkbride's farm. , To- Mr Otley he agreed that there was every indication that the cattle , i used this road and the adjoining ' Crown Land Reserve frequently in *©rder to get to the river to drink. He agreed also that the road was "H very narrow and wound through the lupins. When asked by Mr Otley to ..state whether or not the cattle he. had seen were definitely on the de- ~ dicated road he admitted that he • could not say for certain. The road ! %vas definitely a dedicated one though in places was little more "than a track. The gpws mentioned were only a few of a herd grazing in the vicinity. There was no fence line to indicate just where the dedicated road began and ended. It would be necessary to have the whole route surveyed to be positive -on ithis point. "I am prepared to swear that the cattle were grazing i «on a formed declared, witness? "but whether or not it was part of the dedicated road I simply cannot say." \ To Sergeant. Farrell he continued that he knew it was a public road :and was. used by the settlers in the vicinity. The County Engineer } Mr C. R. Urebner also gave evidence, stating that the road was maintained at the •expense of the ratepayers by the -County Council. It was recognised as a public thoroughfare. To Mi Otley, however, he , too agreed that , the road or track } leading to Kirkbride's might, not be entirely along the dedicated strip. It was most unlikely but it was possible, that it might be partly on the Crown Land -adjoining. The road was partly unfenced in order to allow Wardlaw's :stocls to get down to the water.

I Gilbert Kirkbride described himI self as a farmer who had been in I the -district since 1911. The road I -concerned was his outlet, and had been first formed in 1926. It had I never at any time been washed away I -or deviated from the original route. |, It -was not. a track but a chain-wide I road. The width of the metal was I about twelve feet. To Mr Otley I he declared that cows strayed on I the road almost every day and had I become a definite nuisance to him,. I particularly when he was engaged I in transferring cattle of his own. I As far as saying it was. .all on the I dedicated line, he would swear to I the plan which he had received from I the Crown Land's Department and I which he now produced. He had I not been there Avhen the Constable I .-saw the cows concerned in the I prosecution } and therefore could not ■ say exactly where they were. I For the defence, Mr Otley declared I that the onus was on the prosecu- ■ tion. to establish that these partiI -cular cows were actually straying B_on a dedicated road. This, it had ■'failed to do. ■ The Magistrate: I agree. The only H way to establish the actual truth of Hvthis assertion would be to post a ■ rsurveyor to take exact measureI ments of the route and then have Ha witness to swear that the cows Hwere actually on it. This appears H however, to be a waste of public Hmoney. I will dismiss the case withHout prejudice. The cows may have -public road but from the ■evidence, I cannot convict on that Hjrcore. The only possible way } as I (Continued in next column)

have said would be for the Constable to stand on the exact spot and have a registered surveyor measure off the road. If the Police would be willing to go to that expense, and the case is proved 1 will then fine the defendant a substantial amount in order to cover the outlay. The defendant should not think because of the roading difficulties that he is allowed to let his stock wander at large. If the Police think the case important enough they can act as I suggest. Sergeant Farrell: I don't think the Department would be prepared to go that far. The Magistrate: That is the only way I can see. It would be impossible to proceed with the evidence as it is.