Case dismissed after doubt in court

Waimarino Bulletin, Volume 6, Issue 244, 31 May 1988, Page 8

Case dismissed after doubt in court

Two Ohakune men chose to defend themselves against charges of breaking and entering last week.

Neil Noel Malcolm Randall, 20, unemployed of Ohakune, and Keith Nelson Ellery, 24, labourer of Ohakune appeared together to defend charges of breaking and entering the Ohakune Hotel on December 29, 1987 with intent to commit a crime. The first witness for the prosecution was Ohakune Hotel proprietor Bruce Leggatt who told the court that both defendants had asked him for credit after 10.00pm to buy alcohol on December 29 and that, after he had refused them they left the bar, at around 10.10pm. The second witness for the prosecution was Mrs Mary Leggatt from the Ohakune Hotel who told the court that about 10.15pm on December 29 she had locked up the lounge bar of the hotel, after making sure it was empty and then gone to the public bar. At just before 10.30pm Max Kelly, the lounge bar barman, asked Mrs Leggatt to open the bar so he could get his jersey.

Mrs Leggatt said as she opened the door from the public bar to the lounge bar she saw two people in the bar, one of whom she recognised as being Keith Ellery. When asked she said Mr Kelly was behind her and the two people were by the juke box when she opened the door. Mrs Leggatt identified a photograph supplied by police as being of a foot print on the main door of the lounge bar, which was found to have been kicked in. There was no evidence that they had taken any drinks, said Mrs Leggatt. She said she chased the two people who ran out the broken door and ran across Clyde Street and along Miro Street and joined by a third person. Third witness for the prosecution was Mr Max Kelly who was employed as a bar person at the hotel at the time. He told the court that when Mrs Leggatt opened the lounge bar

door he saw the two defendants, Keith Ellery and Noel Randall, at the entrance to the lounge bar, and that the door, which they found later to be broken , was still swinging. He said he was sure they were outside the door as they were framed by the doorway. Sergeant Neil Coker appeared for the police and told the court that he had been called to investigate the incident and, after speaking to the Leggatts, spoke to Keith Ellery. He said Mr Ellery denied being inside the lounge bar and denied kicking the door in. Mr Ellery had told Sgt Coker that he had been in the hotel since about 3pm and that Noel Randall had arrived about 7pm, and that he had asked for credit but was declined, the court heard from Sergeant Coker. Sgt Coker said he arrested Keith Ellery then and took possession of his shoes. Sgt Coker said he approached Noel Randall the next day and told him he had been identified as the second person inside the lounge bar in the incident. Defendant Randall then told Sgt Coker

that he had the wrong person. Sgt Coker said he inspected the shoe print on the door and found it to be similar to the sole of Keith Ellery's shoe. Noel Randall then took the stand for the defence and told the court that Keith Ellery had admitted to kicking the door in "but we did not enter the building," he said. "I looked to see what damage was done and Keith said: 'Oh no, what have I done'." Sergeant Jones, acting for the prosecution asked the defendant what preceded the incident, to which Mr Randall replied "nothing". Sgt Jones asked what Keith Ellery had said

about not getting credit to which he replied "something about Bruce". "Did Mr Ellery go into the bar?" asked Sgt Jones. "No," said Mr Randall. "So Mrs Leggatt is fabricating that?" asked Sgt Jones. "Yes," said Mr Randall. "Why did you tell lies?" asked Sgt Jones. "Keith was a friend so I wanted to protect him," said Noel Randall. Sgt Jones asked what had changed and could the court assume that he was still trying to protect him. Keith Ellery then took the stand.

He told the court that he had lost his temper and kicked the door and it had flown open, that he saw Mr Kelly and Mrs Leggatt and panicked and ran. He said he didn't have any intention of entering the building. Asked if he didn't want to enter the building why had he kicked the door in he said: "I was agitated, just out of stupidity." "I didn't even know it was locked, I just kicked it." Judge Lowe said it was clear that the door was kicked in by the defendant Keith Ellery and that it was clear that he and Noel Randall were seen by Mrs Leggatt and Mr Kelly. He said he was aware

that Max Kelly was or is a friend of the two defendants. He said the evidence of Mrs Leggatt and Mr Kelly created something of a doubt in his mind as to whether the defendants had gone far enough to justify the charge. "As a matter of preference I would be in favour of Mrs Leggatt's evidence. But Mr Kelly's evidence creates such a doubt in my mind," said Judge Lowe. "I am not certain that if they had kicked the door in and gone into the lounge bar that they had the intent to commit a crime. That is certainly quite likely but it has to be established beyond a reasonable doubt," said Judge Lowe. Noel Randall was found not guilty on the charge. For Keith Ellery a charge of wilful or malicious damage was substituted, to which he pleaded guilty. Keith Ellery was also charged with assaulting an employee of the hotel, after the door breaking incident. He kicked the employee in the stomach and a scuffle broke out were the employee's shirt was ripped. Judge Lowe said the defendant was "a bit old for this sort of thing" and that his action was not appropriate for settling an argument. Ellery was fined $180 plus $65 court costs plus $35 reparation for the damaged shirt on the assault charge. He was fined $150 plus $65 court costs plus $115 reparation for the damaged door on the wilful damage charge, plus $48 witnesses expenses.