Police were quite used to prosecuting the drivers of horse-drawn carriages or carts who drove while under the influence of drink, likewise horsemen were charged for “riding horses furiously” through town streets, usually at speeds dangerous to pedestrians and other horse traffic. Police unhesitatingly took tram-car drivers to court after accidents involving death or injury and they were “on the case” of cabbies driving motor cars who overcharged or loitered, looking for custom. So it was nothing for the constabulary to prosecute errant drivers of motor cars. Here are a few who were among the first, sometimes the first, accused of breaking the law…
Christchurch Concerns
There seems to be a number of serious charges levelled against motorists in Christchurch, perhaps because conditions there favoured popularity of automobiles. “It seems a pity”, said the “New Zealand Herald” newspaper in July 1903,”that Auckland is so hilly. Were it not so, and we had Christchurch roads here, the electric motors and broughams would be quite numerous. They are the ideal cars for flat roads and level town work. But in Auckland they would never do”.
Christchurch townsfolk were apparently worried about speeding motor cars presenting a danger to horse traffic, tramcars and pedestrians. “The sooner the City’s by-laws prevent motorists driving down principal thoroughfares at what the police consider an excessive pace, the better it will be for other road-users,” the “Star” newspaper opined on 26th May 1904. “Even more so following yesterday’s decision in the Magistrate’s Court. A motorist, charged with furious driving, was let off because there was no proof that the particular by-law was valid”. There was doubt that it had been approved by the Colonial Secretary… the Bench held the objection was a valid one and dismissed the charge. “Now is the time for the motorist to show his paces”, the newspaper mocked, “pending the by-law being approved, he may exceed the rate prescribed by the by-laws as often as he pleases, so long as he is careful not to break anybody’s neck. His own neck would appear to be of small importance, judging by the habits of these motorists”.
Motorists’ New Laws
The McLean Motor Car Act of 1898 appears to be the first New Zealand legislation involving the motorcar. It was passed to allow Wellingtonian, William McLean or his agents, to drive motor cars anywhere in the Colony. The Act was passed by Parliament after McLean began importing Benz vehicles from France in March 1898 and there was doubt whether they could legally be used on public roads under existing law.
1898 Benz
media.daimler.com
The McLean Act, was confined to William and “any company which may acquire his rights” and defined a motor car as being under 3 tons, it ensured a light was displayed at night and restricted speed to 12 miles per hour (19kph). Cars had to have brakes (operated by a competent person), there were rules about tyres, width of the vehicle, registration marks and a fee payable if the vehicle plied for hire as a taxi.
The McLean Act grew out of date as the motor car industry expanded to involve importers throughout the country, not just those named by William McLean as acting for his syndicate, the New Zealand Motor Company.
The Motor Cars Regulation Act 1902 took over. It regulated speed (“not greater than is reasonable”), provided for the display of a light to the front at night and an audible warning signal and required heavier vehicles to be tested annually under the Machinery Act. It also allowed by-laws to regulate local risks and to provide for the storage of petrol or other explosive liquids. “Motor cars are here to stay” said the Acting Premier Joseph Ward, “and need regulating”. At first 10mph (16 kph) was considered “safe” by lawmakers but when country roads were mentioned, the clause was amended to forbid speeds “not greater than reasonable”
Enforcing the New Law
Christchurch Cases: Convictions for Speeding
Introducing his case in Christchurch Magistrate’s Court in April 1904, police prosecutor Sergeant Bourke advised the court that he had laid the charge under the new Motor Cars Regulation Act. It was probably the first prosecution, the first of countless motorists who have since faced driving charges in court, paid “instant fines” or accumulated demerit points.
Leslie McMaster was accused of “driving a motor car at unreasonable speed on Fitzgerald Avenue” contrary to the new Act. A witness, a cyclist, said he reckoned the car turned into Worcester Street at 12 miles an hour, (19kph), almost colliding with him, forcing him to swerve on to the grass. When asked how he estimated the speed he said he had been to Lancaster Park watching drivers attempting to set speed records, so he was able to calculate. Another witness reckoned McMaster was travelling at 14 mph, (22kph), a speed “which seemed to carry him out on to the other side of the street as he made the turn, almost knocking down a pedestrian”. A third witness said the speed was “altogether a danger to cyclists”.
But defendant McMaster told presiding Justices of the Peace that his speed must have been less than 12 mph because, weighing 1 ton, the vehicle could not possibly turn at that speed, and, “anyway, I can stop the car in its own length”.
Sergeant Bourke told the court he thought 8 or 9 mph would be safe for cornering.
The Justices, finding the case proven, convicted McMaster and fined him £1.
Defendant with Expertise
Frederick Ganderton was accused in the Christchurch Court for speeding in December 1904 and although he considered himself an expert motor-driver, his evidence was not enough to get him off the charge. It was something he said during cross examination…
Police reckoned his speed was excessive at 15 miles an hour on Colombo Street. Constable Malony had received several complaints. In Court Constable Jones said he saw the car “dashing about”, far in excess of other motor-cars…it was a danger to other road-users. A horseman gave evidence about the unsafe speed Ganderton was doing in Cathedral Square but under cross-examination said he had never timed a motor-car nor ever been in one. Another witness was similarly disarmed when, from the witness box he first claimed the speed was excessive, but then revealed he was no judge of speed!
Frederick Ganderton, giving evidence in his own defence, said “I have had considerable experience test-driving motor-cars in the UK over the past 8 years and I have driven in far more crowded streets in London and Scotland at greater speeds than those with which I am now before the Court. It was a brand new car, this was the first time I had it out on the streets”.
His expertise behind the wheel, however, did not reach the finer points of Christchurch by-laws when, questioned by Sub-Inspector Dwyer, Ganderton he had to confess, “ I don’t know what the speed limit is”. He was convicted and fined £2.
Pioneer Motorist in a Series of Prosecutions
Pioneer motorist Emil Bockaert with business partner Percy Skeates imported the first motor car, a Star, to Auckland in 1899. Their company later imported French Darracqs, the first arriving in 1903, with later models distributed throughout New Zealand: Darracqs were deployed by the Mt Cook Company on rugged South Island routes.
The first motor car in Auckland – 1899 Star-Benz
Weekly News – Sir George Grey Special Collections, Auckland Libraries, AWNS-19001005-7-5
Auckland Violation
In July 1904 Auckland police alleged Mr Bockaert was speeding in his motorcar “faster than walking pace” as he turned from Queen Street into Wellesley Street one Saturday afternoon. Constable Curtin told the Magistrate that “…Bockaert, with 3 others in the car, took the corner without slackening pace, travelling at 10 miles an hour (17kph)”.
Bockaert said the policeman was wrong about the speed because as he approached the corner he had changed to slow gear and the vehicle wasn’t then capable of more than 4miles an hour (6kph). His passengers verified his evidence and the magistrate dismissed the case saying the policeman must have been mistaken.
But Bockaert did not get off so lightly the second time around. He imported bigger and more powerful Darracqs and set numerous time trials and participated in reliability trips, often between towns and cities along unformed roads.
Dunedin Offences: A First
In April 1905 Emil Bockaert was in Dunedin on a marketing exercise, showing his car. But a number of townspeople and a local policeman, Sergeant Ryan, thought the car was being driven too fast. Bockhaert was charged with “furious driving” and excessive speed in Princes Street.
Muir and Moodie Co’s postcard, Princes Street, Dunedin 1906, Museum of New Zealand
Ryan told the Court the offence occurred “at the busiest time of day and it was a miracle there wasn’t an accident” and there was evidence that the car had “shot through the intersection of Rattray and High Streets at 30 miles an hour, the fastest I have ever seen a motor car travel,,, it passed in a flash”. Bockaert, pleading Not Guilty, said he “was doing just half that, about 16 mph”. His counsel, celebrated defence lawyer Alfred Hanlon, argued that the “furious driving” charge was a hang-over from horse-and-cart days, introduced before motor cars were dreamed of, and it had not been replaced by a more appropriate law. So the case, he pleaded, must be dismissed. In defence of the excessive speed charge he produced several witnesses who said the car travelled at a reasonable pace.
For the Magistrate, Charles Graham, it was a novel hearing: his first involving a speeding motor-car. He found, even allowing for exaggeration by witnesses, that the car was driven at speeds which put other road-users at risk. “If Mr Bockaert wants to advertise the machine he could go to Forbury Park (a race course for horses) where he can travel at any speed he wishes. It’s these extremely high speeds on our roads that serve, to some extent, to bring motor-cars into disrepute and have a tendency to prejudice the public against them. The maximum penalty for this charge is £5 but since it is the first brought before me, I will inflict a fine of £2 10 shillings with witnesses expenses £1 10 shillings. Stand down!” Bockaert may have thought it cheap publicity for his cars!
Canterbury Capers
Emil Bockaert based himself in South Canterbury and in 1909 was in trouble with the law again… this time after an accident when his car struck a cyclist one night in Arthur Street, Timaru. Bockaert denied two charges – that on April 22nd 1909 he drove a motor car over the intersection of streets in the borough at a greater pace than four miles an hour (6kph), and, secondly, that he drove the car in a manner likely to endanger the public safety. There was evidence his car had swerved on to the wrong side of the road when it hit the cyclist who had been badly injured. Bockaert told the Court the reason the car swerved was because he lost control travelling at the slow speed he was forced by law to negotiate the intersection. He, and an expert witness (a motor engineer), said the maximum speed limit was too slow, that cars were more easily manoeuvred at slightly higher speeds. The magistrate dismissed the first charge of speeding but found Bockhaert’s driving endangered other road users and fined him Emil Bockaert £6.
Dunedin Again – Case Dismissed
In November 1904 Charles Graham, Magistrate, had heard another case in the Dunedin Court of speeding in a motorcar, and again it allegedly occurred at the Princes Street/High Street crossing. Police accused George Sievewright of travelling at an unreasonably high speed which placed many pedestrians in danger. Once again Alfred Hanlon defended and said the constables were wrong. “Sievewright”, he said “had shut of the power approaching the intersection, blew the horn 4 times and pedalled the vehicle through the cross roads probably reaching no more than 5 miles per hour. It’s up to the Court, under the law, to decide whether this speed was unreasonable and I say it wasn’t”. Witnesses concurred with the estimated speed and the Magistrate, Graham, this time dismissed the case.
Wanganui – Not the First Prosecution
In November 1904 local Magistrate, Robert Stanford, was confronted with his first case laid under the new Motor Cars Regulation Act. He was told during the hearing that it was the first information laid under the Act, but it was not: several cases had preceded it.
Local motor dealer Charles John Adams was charged with “being in charge of a certain motor car did permit such car to travel along certain streets at a greater rate of speed than is reasonable”.
Detective Bishop told the court that he had at first considered charging Adams under the old (horseman’s) “furious driving” provision but the new legislation became law at just the right time.
Sergeant Norwood, prosecuting, told the court that Adams had been seen driving a motorcar along Bell Street at speeds estimated at 15 mph (24 kph) and making a terrible noise. Defendant had been warned by constables about his speeding on several occasions but he took no notice. Adams at this stage pleaded guilty, admitting the offence.
“That makes things much easier,” said the Magistrate “and what about penalty?”
“I’m asking for a severe penalty, Your Worship”, Sergeant Norwood pleaded, “because we have repeatedly warned Adams about his speeding, we have heard witnesses who are adamant his high speeds are unsafe and, besides, the prosecution wants to make an example”.
Defence lawyer Mr Cohen said there was no such cause for a tough sentence. “This is the first information laid under the new law in Wanganui, and probably in New Zealand, so leniency should be exercised – my client Adams did not know about the new law’s speed restriction”.
Sentencing, Magistrate Stanford said “I am glad the constables had warned Adams because I’ve often seen him speeding around town which made me wonder where the police were. You are convicted and fined £5 with £1 eleven shillings court costs. Stand down.”
Defendant John Adams was from Adams Star Cycle Company which operated in Christchurch, Wellington and Wanganui and boasted the sole agency for Humberette cars in New Zealand, the first of which were 5 horse-power , 2 seater models priced at £225. The firm also imported French Etoile cars with De Dion engines. (Whatever Adams was driving must have been a nippy vehicle if the police and the Magistrate are to be believed. A good advertisement for the cars he was selling!)
Akaroa’s Unique Road Rule
In early 1905 one of Christchurch’s intrepid motorists made the trip from the Canterbury Plains over to Akaroa to prove the viability of the motor car along that route. He was accompanied by a newspaperman. The Akaroa County took fright at this innovative conveyance and drafted a by-law forbidding motorists to drive over the hill from Little River to Akaroa during the hours of darkness. The first driver charged with this offence was taken to court in May 1905. The “Star” newspaper reported that “the unfortunate motorist’s only crime was that he attempted to return home at night” and that the Council, in passing the by-law, had made a lamentable exhibition of arbitrariness, so it was fitting that defendant’s lawyer successfully argued that there was a technical flaw in gazetting the by-law, so the information against his client had to be withdrawn”.
The Court agreed.
“But,” said the Press newspaper, “Council has looked askance at the motor car and will probably take steps to remedy the flaw and before long the motorist will have no excuse for climbing Little River Hill during the prohibited hours. The motor has come as a recognised method of locomotion, and it is useless to attempt to regard it in any other light. To curb its speed is, of course, a necessity, but to curb its sphere is a very different matter”.
Auckland – Doctor vs Police Sergeant
In early 1904 an Auckland doctor, Robert Stopford imported (reportedly) the first British-made car to Auckland, a 5hp Vauxhall. In August 1905 He was responding in it to “an urgent case” when police saw him travelling from Queen Street into Wellesley Street on the wrong side of the road.
Dr Robert Stopford; Clashed with Police Inspector, NZ Graphic – Sir George Grey Special Collections, Auckland Libraries, NZG -19090804-22-6
Once in court there was an exchange between the doctor and the police prosecutor, Inspector Turner.
Dr Stopford: “I admit taking the right-hand side, but, given all the tram lines, it was the most practicable course”
Turner: “Your Worship, the vehicle’s path was unmistakeable because it had left marks of its course in the slush”.
Dr Stopford: “I hope that the Inspector will act a little ‘more decently’ next time. I think he should have stopped me right away and then I might have given him an explanation”.
Turner, by now hot under the collar, told the doctor “I have stood more from you than I shall do in future!”
Dr Stopford with a smile: “I am going home now; you may have a drive up with me if you like!”
The Justice if the Peace broke the exchange with his judgement: “It’ll be a fine of 10 shillings with costs”.
“I shall pay now in cash” said the doctor, concluding with the last word, “and I hope the Inspector will be more reasonable next time!”
Old Law Used: Fine Imposed
Some horses took time to become acclimatised to the sight and sounds of a motor car, and in Wanganui in November 1904, one such animal bolted, frightened by the approach of a motor car. The horse jumped out of its trap and the woman occupant was thrown out on impact and badly shaken. Police chose to charge the driver of the car with ‘furious driving’, a charge usually reserved for errant horsemen. Witnesses said the car was travelling at least 15 miles per hour whereas bylaws allowed only 8 mph. The driver pleaded guilty and was fined £5 with costs.
Manslaughter? Horse and Trap vs Motor Car
Among the first serious prosecutions involving a motor car was a charge of manslaughter, laid not against the motorist but against the driver of a horse and trap. It had been in collision with a motor car on a street in Gore in December 1905. A woman, Margaret Winsloe, a passenger in the car, died instantly when she was struck by the shaft of the trap driven by John Whittingham. No blame was attached to the driver of the car but at an inquest a jury found that Whittingham did not exercise sufficient care managing his horse. Concluding a hearing into manslaughter the Bench, consisting two Justices of the Peace, decided the evidence did not disclose sufficient cause for sending Whittingham for trial by jury, and dismissed the charge.
Manslaughter? Fire Appliance vs Pedestrian
Another of the first prosecutions following a motor accident resulted in manslaughter charges – this time against the driver as well as the officer-in-charge of Wellington’s first horseless fire appliance.
Wellington’s Fire Brigade’s first motorised appliance
Weekly News – Sir George Grey Special Collections, Auckland Libraries, AWNS-19060531-16-4
The Brigade had its new Merryweather vehicle only 6 months when, in December 1906, it responded to an afternoon fire at the Botanical Gardens. As the appliance turned from Lambton Quay into Bowen Street it struck two women who were crossing the road. One, Mrs Amy Kensington was killed outright. She was the wife of the Under-Secretary of Lands. Her daughter, Louisa suffered serious leg injuries while her sister, Olive, escaped uninjured. No one on the fire appliance was hurt, driven by Palmer Otto Spry under the supervision of the Deputy Superintendent of the Brigade, William Stephen O’Brien.
Witnesses said the appliance was sounding its gong and took the corner widely at about 8 to10 mph (12 to 16 kph), but somehow the women misjudged its path and were struck. Onlookers also said that Spry appeared to be a skilled driver because, seeing an accident could not be avoided, he had applied the brakes and stopped the appliance in 3 or 4 yards (3-4m) just past the point of impact.
As required, an inquest was opened next day to enquire into the death. Numerous witnesses who had seen the accident along with firemen, Miss Kensington and others, all gave evidence. Such was interest in the case in Wellington that the Evening Post newspaper published an extra late edition on 21st December 1906 in order to report court proceedings until late afternoon.
A test-run after the accident had been made to judge the vehicle’s path, especially the room needed to make the turn into Bowen Street and this was part of evidence produced in Court. Allegations of excessive speed were knocked back by a fireman who said some of the Brigade horse teams went along much faster than the motorised appliance.
After several days’ hearing the Coroner’s jury returned a verdict that Mrs. Kensington’s death was accidental, and that no blame was attachable to the driver of the motor fire engine.
Coroner Disagrees
The outspoken Coroner said “I am bound to accept the verdict, but I disagree with it, particularly in view of the evidence tendered regarding the rate of speed at which the engine rounded Bowen Street corner”
Understandably, perhaps, within days the police charged both Driver Spry and Deputy Superintendent O’Brien on 2 counts… manslaughter and driving recklessly thereby causing the death of Amy Kensington. Among the first witnesses at the hearing was Amy’s husband, William Charles Kensington, Under-Secretary for Lands, who revealed that he had witnessed the accident while looking out an office window in the Government Buildings, and on being called to the scene saw his daughter lying on the ground with one of her legs broken, and his wife dead. Other witnesses said the appliance was “going faster than tram-cars usually do”, despite there being many pedestrians about. Countering this the lawyer for the Brigade quoted the Fire Brigade Act 1906 which said “on any alarm of fire the Superintendent should with all possible speed proceed to the place where such fire was, and there direct those working of the brigade”… and so on, “but this did not mean disregard for the safety of the public”.
Committed for Trial
When it came time for a verdict the Magistrate said “this case is of such great importance to the public that while I sympathise with the defendants, I think it better for them that the facts concerning the rate of speed at which they were going should be decided by a jury in the higher court. I was on the appliance during the test run and I was satisfied that it had been declutched, and that the declutching had reduced the speed one third. But the questions were in what proximity to the corner was the declutching done, and what was the speed which preceded impact. This is where the conflict of evidence comes in, and I believe it should be decided in the higher court. I am committing both accused for trial”. The defendants reserved their defence and were allowed bail, each in his own recognisance, in the sum of £100.
Supreme Court – Grand Jury says “No”.
On February 5th the two accused went before the Supreme Court. A Grand Jury had first to decide whether, on the strength of the evidence adduced, the two should stand trial. The Jury examined many witnesses over the course of one and half days and, having considered its verdict, returned to the courtroom. The Jury told Mr Justice Cooper that it was returning a No Bill, that jury members thought that on balance, the weight of evidence did not warrant the matter going to trial. William Stephen O’Brien and Palmer Otto Spry were discharged.
Auckland: Not So Fortunate
Meanwhile in Auckland the Fire Brigade’s new Ariel motor appliance had been involved in an accident in Ponsonby where a man was knocked down.
The 1906 Ariel, first motorised fire appliance in Auckland
Weekly News – Sir George Grey Special Collections, Auckland Libraries
The appliance was out on a test-run after repairs to the motor. It was following the path of the tram-tracks along Ponsonby Road when a tram coming in the opposite direction was encountered. It stopped. A man stepped off the rear of the tram, walked around the back of it, crossed in front of the fire engine and was run down.
George Tremayne was charged with negligently driving the fire appliance and appeared in the Police Court. Evidence was given that the appliance was travelling at 15 mph (24 kph) and knocked the man clean off his feet into the air. Witnesses said the driver did well to stop vehicle within a few lengths but if it had been in proceeding in its proper place on the left of the road the accident may have been prevented. However the driver said that he had steered the fire engine trying to avoid the man and had the man not “made a rush” he would never have been struck.
The magistrate said “I hold that the driver did not keep as near to the left side of the road as practicable. That’s the whole question. I am imposing a fine of £3, and costs £3 3s.
Manslaughter? Riccarton Road at Night.
In December 1906 a passenger in a motorcar was killed when it collided with a horse and dray on the Riccarton Road, Christchurch. There was an inquest and police immediately laid a charge of manslaughter against the driver of the car, William Thomas Felton.
The accident occurred at night on a bend in the road near the Plough Inn (later Riccarton Hotel). Evidence was given in the Magistrate’s Court that those in the car had been drinking, that the lights on the dray were weak, or might have been mistaken, and that the car was at times during the journey driven on the wrong side of the road. George Tancred de Montalk was thrown clear when the two vehicles collided and died on impact with the road. Felton was sent for trial in the Supreme Court where the degree of negligence was argued. For the motorist in these circumstances – what amounted to culpability?
The prosecution quoted case law… “Any person who undertakes to drive another in a vehicle was legally obliged to take reasonable care for the safety of his companion and anyone they might meet”.
The defence believed the collision occurred because the lights on the dray were dim and appeared to be further away than they were, and it was contended that motor vehicles frequently travel on the wrong side to get a better going, smoother, a more easily negotiated path.
The Judge, summing up, said it was a question of whether the accused used reasonable care to avoid danger in driving the motor-car.
The jury retired, returned to court after an hour and delivered a “Not Guilty” verdict. Felton was discharged.
Manslaughter? Car Vs Horse Vs Tram
Just after 10’o clock one night in February 1908, Christchurch Doctor William Diamond, had been summoned by Syd Merrett to attend his wife who was giving birth. Doctor and the expectant father set off in the doctor’s car, losing no time responding to the patient – Diamond afterwards admitted that he was “in a hurry to attend upon Mrs Merrett”.
At some point along Lincoln Road near Clarence Road a horse being led by its groom shied at the noise and sight of an approaching electric tram car. Dr Diamond’s car arrived on the scene at this moment: the horse loomed out of the darkness and collided with the car, causing Dr Diamond to swerve on to the wrong side of the road. In trying to correct the car, it ran into the path of an approaching city-bound tram which hit it broadside on, turning it around and carrying it along the tracks until it came against a tramway centre power pole. It was wrecked. Sydney Raymond Merrett was thrown clear of the vehicle and lay in the street, seriously injured. He died a week later in hospital.
Inquest Hears of High Speed
At the inquest a policeman and civilians attested the high speed the vehicle was travelling while others assumed that Dr Diamond, in making the swerves he did, was attempting to dodge first the horse and then the tramcar.
The Coroner, summing up, told the jury “You have to consider just one question – whether Mr Merrett’s death is due directly or indirectly to any act of negligence or omission or commission on the part driver of the car”.
The Jury, after forty minutes’ retirement, returned a verdict “that Mr Merrett met his death, by a motorcar accident, no blame being attachable to anyone, as Dr Diamond, in our opinion, did his best under the circumstances”. A rider was added – “That motorists should observe the existing regulations regarding the speed limit, it being the opinion of the jury that motorists do exceed that limit, and are not checked by the authorities.”
Charge Laid
The rider might have been enough to encourage police to act. Yes. They charged the doctor with causing the death of Merritt by his negligent and improper driving (under the Motor-Cars Regulation Act), thereby committing the crime of manslaughter. In mid-April the hearing was held in the Magistrate’s Court. It resulted in Dr Diamond being committal to trial.
In the Supreme Court Mr Justice Denniston asked the Jury to determine whether there was a case to answer. He told the Jury “…manslaughter depends on neglect, and in the present case the negligence alleged is the careless or reckless driving and management of a motor car. The doctor was going as fast as he possibly could to his patient, but that is not in itself an answer, because an excessive degree of speed would not be justified merely because the object of it was good. A man must consider his duty to the public. It’s clear that in a sense the affair was accidental, but the jury will have to say whether the evidence discloses negligence on which a jury might reasonably convict”.
The Jury entered “no bill” against Dr Diamond: its members did not think a trial was justified in all the circumstances. The doctor was discharged.
“Truth” Dives In
The weekly newspaper “Truth” was not impressed, saying the “antiquated” Grand Jury system of deciding whether there’s a case to answer on these serious charges, was an anachronism leading to unjustified discharges.
“The doctor was charged with travelling at an excessive speed, that he had no warning horn, and that he’ didn’t have proper control over his machine, nor did he exercise due care to avoid a collision.
Mr Justice Denniston
Weekly News – Sir George Grey Special Collections, Auckland Libraries, AWNS-19020911-8-2
Mr Justice Denniston found it necessary to add that the “grand” jury must not allow any sympathy it might feel for the doctor to interfere with its duty. Why should he find it necessary to give that warning “Truth” doesn’t know, but surmises that the learned judge knew the jury was representative of a class, more liable to favour it to a much greater extent than if the culprit were a mere butcher or a baker”.
Well-Known Auckland Motorist Prosecuted
One of Auckland’s pioneering motorists and prominent dentists, Frederick John Rayner, faced two charges after he was seen allegedly speeding in Wellesley Street in April 1909.
Frederick John Rayner… dentist and motorist, Herman John Schmidt – Sir George Grey Special Collections, Auckland Libraries, 31-61369
Mr Rayner was also charged with “using a car with the mark prescribed by the motor regulations not easily distinguishable”. Three Justices of the Peace heard the case. A policeman said he saw the vehicle travel down Wellesley Street at more than 20 mph (32 kph), a dangerous speed, but could not identify the car because its number plate was scraped and illegible.
Intersection of Queen and Wellesley Streets, 1909, now the Civic Theatre. Frederick J. Rayner owned and operated the American Dental Parlors. Henry Winkelmann – Sir George Grey Special Collections, Auckland Libraries, 1-W874
Rayner’s defence counsel said the car was properly numbered at the rear, while the constable had only looked at the front. Rayner told the Court that had he come down Wellesley Street at 20 mph, as alleged, it would be more dangerous to the driver than to the public. He estimated his speed at 10 miles an hour. The Court dismissed both charges.
Manslaughter? Car vs 2 Poles, Military Manoeuvres
Christchurch’s Automobile Association decided in October 1909 to assist the volunteer military forces by arranging cars to transport some of the troops to and from scheduled manoeuvres at Yaldhurst. The Humphreys’ family car was offered to be driven by a young member of the family, William Avery Humphreys. Evidence later showed he’d had a few drinks… wine and beer… by late afternoon when military training had ended and the time came for Humphreys to transport four Officers back to Christchurch city. Those who spoke with Humphreys at that time said he was sober and capable of driving the car, so once his passengers were aboard he departed, the first in a considerable convoy of private cars conveying soldiers.
On Riccarton road, near the Plough Inn (later Riccarton Hotel), the car got into a skid heading for the gutter. Humphreys attempted to turn the car outwards, back into the street, but at that point the rear of the car struck a cast iron tramway pole. The rear of the car was smashed in and a rear wheel dislodged. He battled with the steering wheel, disengaged the clutch and braked but before he could get the car into the road proper, and stopped, it struck another tramway pole.
The crash on Riccarton Road
F. B. Huhes, Weekly News – Auckland Libraries Heritage Collections AWNS-19091021-5-2
The impact cut the car in two and overturned the wreckage. Some occupants were thrown clear: others were trapped beneath the wreckage. All were injured, but one, Captain William Ostello Pavitt, had suffered the brunt of the impact with the second pole and was dead.
Inquest
William Reeve Haselden, Stipendiary Magistrate, Coroner and noted jurist, empanelled a jury for the inquest into Pavitt’s death.
W. R. Haselden, SM
NZ Truth – Papers Past, National Library of New Zealand
The driver of the car, Humphreys, gave evidence that he had been drinking on that day, “I had six or seven measures throughout the day but I don’t think this impaired my driving. At first I thought mal-functioning steering gear caused the car to slew to the left, but later considered a flat tyre may have been to blame. My speed at the time was not excessive and we were not racing the other cars: they followed, so there was no one to race with”.
George John Smith, Lieutenant-Colonel Commanding the Second Infantry Battalion, gave evidence about Humphrey’s sobriety, “Colonel Hawkins was the second person to indicate Humphreys had been drinking. I went across to see him to satisfy myself as to his condition and I was perfectly satisfied that he was sober”.
The Officers in the car, a mechanic, police and witnesses to the event gave evidence before two extraordinary addresses were made to the jury.
The first was from Humphrey’s lawyer, Mr Beswick, “I admit it isn’t usual to address juries at coroner’s inquests, but the present one is a somewhat peculiar case. It will be part of the function of the jury, if the facts point in that direction, to show that the blame rests on a particular person. As far as the evidence went, there’s nothing to show that Humphreys was in any way culpable or criminally negligent in connection with the accident”.
Then the Coroner, Mr Haselden, felt moved to include in his address to the jury: “There’s no evidence of negligence on the part of Humphreys that justifies a verdict of manslaughter. If the jury brings in such a verdict, the result will be that an information will be laid against Humphreys and it’ll be felt immediately that he is being made the victim of an unfortunate set of circumstances, and the sympathy now being deeply felt for Captain Pavitt will, in some measure be transferred to Humphreys”.
With those words ringing in their ears, members of the jury retired and after just a quarter of an hour returned with a verdict “deceased was accidentally killed, and that no blame I was attachable to anyone”.
Charges Laid
The police did not agree. Humphreys was camping at New Brighton with some friends on October 24th when his holiday was interrupted by the arrival of police who arrested him. The charge was “by neglect and improper driving of a motor car caused the death of William Ostell Pavitt, and did thereby commit the crime of manslaughter”.
Defendant was remanded on bail later that day and then the hearing was held in November. Matters heard at the inquest were re-litigated, but of note was the defence’s request to clear the Court while some of the evidence was adduced and the Coroner’s appearance to hand over notes taken during the inquest. More than 20 witnesses were called, many of whom gave evidence about Humphreys’ state of sobriety. Some said he was unsteady on his feet before driving from Yaldhurst, others testified that he was driving carelessly (rolling a cigarette) speeding (the throttle wide open) and at one stage during the journey lost his way near Riccarton racecourse. After a two day hearing Humphreys was committed to trial in the Supreme Court.
The Jury Decides
Mr Justice Dennison asked the Grand Jury to consider the evidence in light of the manslaughter charge which he defined as “culpable homicide not amounting to murder”. His Honour traversed events that day on Riccarton Road, repeated some matters that arose at the inquest and during the lower court hearing and told the Grand Jury that members had only to decide if, on the evidence for the prosecution, a prima facie case in support of these allegations should be put before a jury at trial. The Grand Jury took the legitimate, but unusual, course of examining all those who were able to give evidence relating to the affair including some who did not give evidence in the Magistrate’s Court. At the conclusion the Grand Jury retired, but could not find unanimity. After lengthy discussions members returned to the courtroom, the foreman revealing to the Judge that its 18 members were evenly split, 9 for putting Humphreys on trial, 9 against. At which point Mr Justice Denniston said that in that case the jury could not find a True Bill, because there had to be least twelve jurors in favour. The Grand Jury consequently announced a No Bill and Humphreys left the court a free man.
“Truth” Again
This was the second case of a driver, a member of a well-known Christchurch family, cleared of manslaughter in connection with an automobile accident.
The columnist in “Truth” swung into action, again criticising the Grand Jury system whereby it decided whether an accused was sent for trial in the Supreme Court. Again the weekly newspaper said it was a sensation that the “upper class” had again “got away with murder” despite, in this latest case, evidence of intoxication, carelessness and high speed. “The ancient Grand Jury system has its merits” the columnist wrote, “but may become a victim of class bias”.
Manslaughter? Cathedral Square
On January 19th 1912 a motor accident happened right outside Warner’s Hotel in Cathedral Square, Christchurch when a car knocked down a pedestrian. Reginald Blunden was the driver: Thomas Ryan, the victim, was a 64 year old Papanui man who died in hospital later that same day.
An inquest heard that Mr Ryan was well used to traffic “in town”, he had good hearing and eyesight and was familiar with traffic flow in the Square. Police alleged excessive speed lead to the accident. A witness said it appeared that Ryan jumped on the front of the car to save himself and the vehicle knocked him over and the body was dragged some distance. The Coroner’s jury concluded that Ryan died as the result of injuries received by being knocked down by a motor-car driven by Reginald Blunden”.
Charge Laid
Police moved on the case and charged Blunden with manslaughter and following material evidence heard in the Magistrate’s Court, he was committed for trial at the Supreme Court. He pleaded not guilty and was bailed.
Mr Justice Denniston, now well-practiced in manslaughter cases as the result of motor accidents, told the Grand Jury “that this case turns on an alleged omission on the accused’s part without lawful excuse to take reasonable care and skill in the driving of a motor-car. A driver is bound to take reasonable care and to have reasonable skill. It was not a case of a young blood dashing recklessly into a crowd, and there was no malice in the matter. You, however, must not try the case. You will only be justified in throwing out a bill if you think the evidence of the prosecution is such that no twelve reasonable men could come to a conclusion on it at trial”.
The Grand Jury decided exactly that and announced a “No Bill”. Blunden was discharged.
The “Truth” is ALL the More Livid
The weekly newspaper opened a fusillade against the Grand Jury system with “Once more a ‘”grand” jury in Christchurch has thrown out the bill in the case of a wealthy and influential accused person charged with, manslaughter after a stipendiary magistrate had satisfied himself that there was a prima facie case to meet before a common jury. This sort of thing is becoming so common in the unholy city as to amount to a public scandal…” Again the columnist listed all members of the Grand Jury as if to point to these men who got it so wrong.
“The grand jury is a survival of feudal times” the column continued, “and an anachronism, in our twentieth century civilisation. Its mere existence is a reflection upon our stipendiary magistrates, whose knowledge of law and experience in criminal trials is made nugatory by a body of men ignorant of the first principles of law and equity, and whose main function has always frankly been to prevent any of the upper ten from getting into hot water”.
Penrose Fatality in 1920 Results in 4 Trials
In February 1920 a cyclist was knocked off his bike and killed at Penrose. Police knew who the driver was, 23 year old Alfred Thomas Percy Victor Dare, but could not locate him. It was thought he might stow away on a California-bound ship, but a thorough search of the vessel before it sailed revealed nothing. Dare had, in fact, shipped out, but he had taken a coastal ship to the far North where he was recognised and arrested in Mangonui. Back in Auckland he was charged with murder of cyclist Arthur John Horton.
It was alleged Dare had taken a Ford car from outside Fuller’s Theatre in the city. Notwithstanding it was a stolen car, he brazenly gave an off-duty policeman he knew, Constable Welson, a lift to Freemans Bay where they visited several hotels for a few drinks. Alone again, the Court was told, Dare went on to Newmarket before making his way towards Onehunga. He picked up two men in Manukau Road, Royal Oak, but they “hopped off” as soon as they could when they realised he was a dangerous driver. Plenty of other witnesses attested excessive speed and seeing the car parked outside numerous local hotels. Some took the car’s number: A2817. Others said, late afternoon, the car was seen passing through Mangere and Otahuhu, now with two persons inside, and still speeding and zig-zagging all over the road.
In Church Street, Penrose, the car and a cycle collided, killing cyclist Arthur John Horton who was on his way to work at the meat works. The Ford did not stop but “raced on” despite frontal damage. It was taken to a garage for repairs. The garage-man said both occupants appeared intoxicated. Like most witnesses called, he could not be certain of the identity of the driver. The car’s owner went to collect his vehicle and found it was going to cost about forty pounds to repair the damage. Dare ran away to Northland: ironically it was his friend, Constable Welson, who found him at Mangonui in the Far North where he was arrested.
Dare was committed for trial in the Supreme Court amid legal argument whether the charge should be murder. A Jury decided he should be tried for manslaughter before judge and jury. Defence Counsel advanced the main defence, one of identity arguing that Dare may not have been driving the Ford at the time of the accident. There were two in the car, he submitted, and the other man could have been behind the wheel. The Judge, summing up told the jury that Dare had not told police at the time that there had been another driver, that this had been a surprise defence, but one which the jury must consider. After some four hours the jury told the judge they could not agree and a new trial was ordered.
Re-trial
At the re-trial the Defence again raised the question of who the driver had been at the time of the collision, pointing out to the jury that so many witnesses could not say, categorically, who was behind the wheel: Dare or his companion. The jury returned a verdict of Not Guilty.
Alfred Thomas Percy Victor Dare was further charged with having committed mischief by damaging a car and a bicycle, arising from the accident in Church Street, Penrose.
The Press described his travels across Auckland as a “joyride” and one or two newspapers made much amusement of the “lift” Dare had given his policeman friend in the stolen Ford car. The jury could not agree and a new trial was ordered, the fourth in connection with the accident.
At the re-trial on the mischief charge a verdict of Guilty was returned. In sentencing Dare, His Honour said that although there could be no moral doubt that the accused was responsible for the death of Mr. Horton, he had been acquitted of manslaughter, and His Honour said he would not allow his own feeling in that respect to influence him. He took into account Dare’s good reputation and service at the front in World War One and his assurance he would not drive a car again. Dare was placed on probation for 3 years, to work and live as directed by probation officers and not to drink alcohol.
Source:
Papers Past, National Library of New Zealand
RCC 18.01.19
