DUAL HEARING

Waikato Times, Volume 122, Issue 20503, 20 May 1938, Page 8

DUAL HEARING

TWO APPEALS UPHELD CHIEF JUSTICE’S DECISION •CONFLICT OF CROWN EVIDENCE Holding that the Crown had failed to discharge the onus of proof of intoxication in either case, the Chief Justice, Sir Michael Myers, in the Supreme Court, Hamilton, yesterday upheld the appeals of Cornelius McDevitt, labourer (Mr A. L. Tompkins) and Maurice Cronin, motor trimmer (Mr E. F. Clayton-Greene), both of Hamilton, against their conviction on charges of being intoxicated when in charge of a motor-truck near Gordonton on March 12 last. “I yield to no judicial officer,” said His Honour, “in my desire to make the roads of this country as safe as possible for the public. There is a view generally hold among the public that motoring offences must be severely punished and that should make the judicial officer more careful than ever that the' accused is really guilty before being severely punished.” According to the medical evidence on appellant McDevitt's condition after the accident, lie was to all intents and purposes a perfectly normal person. Had the ease been one before a jury with His Honour on the Bench he would have been bound to warn the jury that- it would be most dangerous to convict on the evidence. "I am not going to send men to gaol on guesswork or speculation.” Sir Michael added. “Give me the proof in a case of this kind and I will have no hesitation in sending a man to gaol. The most that can be said is that the case is a very doubtful one and I must give appellants, in the popular phrase, the benefit of the doubt, and dismiss the informations.” Cronin Not Examined Questioned by His Honour after the luncheon adjournment yesterday, Constable Mills said that he had not arrested Cronin because he did not know he had anything to do with driving the truck. Respondent bad not learned Cronin was the driver until the hearing against McDevitt. Cronin had not been examined by the policesurgeon. His Honour: Do you know that the doctor's report on McDevitt is very different from your evidence? How do you explain that? In reply, respondent said he considered that in view of his experience in similar cases he could give a worthwhile opinion. His Honour: Then why call in a doctor? Respondent: We are practically bound to. His Honour: And a good thing, too! Evidence was also given by Constable 11. R. Huntly, who had been on duty in the watch-house on the night of March 12. Witness had frequently eeen intoxicated men brace up with the arrival of the doctor, pass tests successfully and then relapse Into intoxication. While at the watchhouse, McDevitt, according to witness, had called 'Constable Mills a “mug.” Leslie Francis Denz, traffic inspector, of Hamilton, said he had seen McDevitt enter the bar of the Waikato Hotel shortly before 6 p.m. on the evening of the accident. McDevitt had fallen over as he came in and had to be assisted to his feet. Witness thought he was intoxicated. To Mr Tompkins, witness said McDevitt was still in the hotel when he left. It might be that McDevitt had fallen over the step at the door. Case for Appellants The only affrmative evidence of intoxication was such as did not carry full conviction against any of the three men in the truck, submitted Mr Tompkins. Constable Mills’ evidence did not square with that of the doctor. It appeared that the constable had aetjd on impulse in arresting McDevitt and would not abandon his original opinion. Inspector Denz’s evidence might have been as true of a sober individual as a drunken one. His Honour: The difficulty in my mind is that the doctor's testimony is so startlingly at variance with that of the police officer. The two are quite irreconcilable. Mr Clayton-Greene at this stage suggested that as only two witnesses had said anything at all about Cronin being intoxicated and as no medical examination of this appellant had been made his conviction might be quashed forthwith. Mr Gillies then Intimated that he intended to attack the medical evidence.

His Honour: But If that report had been received before the accident, would the man have been arrested? I venture to say he would not.

Holding that the Crown had failed to discharge the onus of proof in respect to either case. His Honour upheld the appeals as stated.