CHARGE DISMISSED

Wairarapa Times-Age, 23 March 1939, Page 8

CHARGE DISMISSED

AIAGISTRATE’S RESERVED DECISION

CASE AGAINST J. J. EWINGTON.

“NO INTENTION TO DRIVE.”

In a lengthy reserved decision given at the Masterton Magistrate’s Court." today, Mr H. P. Lawry, S.M., dismissed a charge of having been intoxicated in charge of a motor-car preferred against Joseph John Ewington. Mr Lawry held that while Ewington was intoxicated he was not in charge of the car.

After referring to the facts of the case as reported at the Court hearing; Mr Lawry said:—“l am satisfied that when he returned to the car the defendant had no intention of driving it.' Defendant had duplicate car keys in the house which he’ had some difficulty in finding next day. when he used his own car to visit his friend to collect the keys taken the night before, but I am satisfied that he had no intention of endeavouring to get such keys in order to start the car at any material time. The question for determination is whether the defendant should be convicted of the offence of being intoxicated in charge of the car. He was certainly in physical charge of the car in the sense that it was in his car, and he could prevent strangers interfering with it, and, it was on a street. ; Although the ignition keys had been, removed it might have been possible to start the car by a manipulation of the wiring. This the defendant says he Was uhable to do for While he could have effectively done so on earlier models of the make of car involved his knowledge of this particular car was insufficient to permit his having so started it. It also would have been possible to have manoeuvred the car by means of the self starter, sufficiently at any rate to have moved the car to the danger of possbile traffic. Is Would also have been possible for the defendant to be a trouble to other users of the highway at night by flicking his lights, or he could have been a general annoyance to the public by sounding the horn. “There is no doubt that the term ‘in charge’ is much wider than ‘being the driver.’ Some obligations are imposed only on the driver e.g. failing to carry the necessary warrant of fitness, and some are essentially driver’s acts. On the other hand there are offences independent of driving such as affixing other than the appropriate assigned number plates. After discussing the finding of Mr Justice Fair in a recent Auckland case, Mr Lawry proceeded: “The inability to drive through lack of ignition keys would not be sufficient to free a defendant from liability unless he proved that he had no intention to drive or attempt to drive. The onus of proving want of intention would be on the defendant. An intoxicated person in a car and intending and endeavouring to drive but unable to start the engine from any cause such a weak battery or a frozen engine is as helpless as one without an ignition key. yet he would nevertheless be actually in the car and have the intention to drive, and so be ‘in charge’ within the meaning of Section 24.

“In the case now before this Court the defendant certainly was intoxicated and actually in the car, but as I am quite satisfied had no intention to drive—then, following the principle so far as applicable, as laid down in Police v Watson, I dismiss the information.”