APPLICATION FOR NEW TRIAL

Dominion, Volume 14, Issue 169, 13 April 1921, Page 10

APPLICATION FOR NEW TRIAL

THE CASE OF FRANKLYN JOHN SMITH. The Court of Appeal (Second Division), which sat yesterday, considered the second application for a new trial of Franklyn John Smith, a prisoner serving seven years’ imprisonment with hard labour on a charge of rape. The assault occurred in Auckland, on April 18, 1920, and the accused was convicted on June 80, after tho jury had retired for 5| hours, finally bringing in a verdict of guilty, with a recommendation to mercy. The case was partly heard at the Inst sittings of the Court of Appeal, when Mr. Allan Moody appeared for the appellant, and the Court decided to hear further evidence. Yesterday, Mr. M. Myers and Mr. A. Moody represented the prisoner. The Solicitor-General (Mr. W. Macgregor) appeared for the Crown. On’ tho bench were Their Honours Mr. Justice Sim, Mr. Justice Hosking, Mr. Justice Stringer, Mr. Justice Herdman, and Mr. Justice Salmond. Mr Myers, for the appellant, laid emphasis on the jury’s long retirement and recommendation to mercy. _ Mr. Justice Hosking: One juror might have held out. There is no special significance in the fact of the long retirement. Mr. Myers read portions of evidence from the trial in Auckland, and submitted that the evidence for the prosecution was not such as to enable the jury to deal reasonably with it in considering their verdict. Tho evidence of the prosecutrix, he contended, was not borne out bv medical evidence. ‘Mr. justice Herdman: The girls evidence was never contradicted. Mr Mvers; Your Honour, I don’t care whether’it is?. . For the purposes of this argument I propose to omit the prisoner’s testimony altogether. Mr Justice Salmond: Are you contending that there was no evidence to go to th Mr. U Myers: No. I consider the evidence was not sufficient to warrant the verdict of guilty. . , Mr Mvers further pointed out that the sentencing Judge had taken no notice of the recommendation to mercy made tho jury; and counsel thought he was quite right. On no consideration should the verdict be allowed to stand. It had been laid down that "facts proved should not be consistent only with guilt, bu, should lie consistent with innocence The onus was on the Crown to every inference except that of juilt. "Otherwise,” he added, "the ’rad. i.m of our law, ‘the benefit of the doubt, is useless.” ~ „ "It is being used to its full capacii. • remarked His Honour Mr. Justice Herd-

Counsel reviewed the evidence at- kngth, and contradicted most Qf the assertions of the prosecutrix. Mr. Moody addressed the t.ourt on similar lines. . , , Mr. Macgregor contended that determination of the question whether the girl in the case had given credible evidence rested with the jury, and they had given their verdict. The Crown was convinced that the appellant s attd de in giving.evidence was finch that .he jury would think him capable of anything; and this, coupled with the evidence, brought the jury’s verdict against him Nothing had been withheld ftoin the jury, and the evidence had been pieced clearly before them. Mr. Justice Hosking commented that the cross-examining and questioning of the appellant at his trial on 1-1 S eoubrionet "Pit Pot” nnd similar matters, was not consistent with proper conduct of a tr Mr. Myers: And the "stage-managing,” to The Solicitor-General referred to the complete difference between the statements of the appellant and the ir<*ecutrix. The girl had been found by her friend in tears after the occurenee. She had been induced to go room with the appellant heqau:-? he had promised to give her a position on ?. theatrical circuit. . Mr. Myers: She had refused to, join the circn'i 4 ’ before going ’ '-e !»<•»»

with Smith. , M.r Macirreffor common.s-d on failure of the friends of the appellant to go into court and give any evidence on his behalf. The girl’s evidence was supported absolutely by 'hat .’l/en by the doctor who examined I er. After Mr. Moody had briefly replied the Bench reserved its decision.