ONGAROTO MURDER

Dominion, Volume 15, Issue 1, 26 September 1921, Page 6

ONGAROTO MURDER

THE ALLEGED MISDIRECTION CONDEMNED MAN APPEALS BUT WITHOUT SUCCESS Leave to appeal from the sen- - fence of death passed upon him in connection with the Ongaroto murder has been refused Hakaraia te Kahu, the Maori, who, after three trials, was found , guilty of killing Patrick Elliott. The Court of Appeal, consisting of Their Honours Mr. Justice Sim (President), Mr. Justice Hosking, Mr. Justice Stringer, Mr. Justice Herdman, and Mr. Justice Salmond, heard the application on Saturday morning, and came to its decision without hearing the Solicitor-General (Mr. W. C. MacGregor, K.C.). The application was made by the condemned man’s barrister (Mr. M. H. Hampson) on the ground that 1 His Horour. Mr. Justice Stringer had misdirected the jury at the second trial. He submitted that there was a question of law’involved. The finding of the Court was communicated to Cabinet immediately after the jugdment had been de-

livered. The first trial began on June 21, and the second on August 2, disagreements being recorded by the jury in each instance. At the second trial, after a retirement of four hours and a half, the jury returned, and made to Mr. Justice Stringer the following application:— "The jury would like your advice on tho view they should take if they consider that evidence has not .been brought forward by tho defence in support of counsel's suggestion, when, in their option, it could have been procured. I his relates mainly to the question of the money found on accused on March 23. His Honour answered: 'lt was open for the defence, if they thought fit and proper, to bring evidence with regard to this Thev have chosen not to do so. Mr.’Hampson . . . has not called any evidence on that point. Ton must, therefore, draw your own conclusions from this.” Tho jury was unable to "■Prominent officials attended the Court on Saturday morning, among, whom were the Hon. E- P. Lee (Minister of Justice). Mr. J. O'Donovan (Commissioner or Police), Chief Detective Ward, Mr. C. Broberg, and members of the Bar. “Misdirection Under Act.” In opening his case. Mr. Ham pson submitted that the direction *<> jury (given above) was a misdirection□ nder section 423 of the Crimes Act. Ho had suggested to the Court, in opposing the order for a third trial, that Mr. Stringer should reserve the question of ffiw regarding the reply to the jury "cHon 442. Crimes Act); but the Judg had refused to reserve the question., Mr. Justice Stringer interposed. It I remember rightly,” he said, ‘ you said it was a good /time for a change of T< Mr ß Hampson replied that he had not said that. No application had been made until ho had stated his special grounds. Continuing his address he contended that under section 442 there wne a question of law whether or not tbs Jury at the second trial had been misJdirected. .. Mr. Justice Sim: How can a question >.of tew arising out of the second trial be cpnlicable to the third? litr. Hampson, replied that three aspects had to be taken into consideration- First, the effect tho alleged, misdirection had on the second jury; secondly. what action should be taken regarding the rights of the second trial; and, fhirdlv, what the effect had been on the third trial. Section 442. he thought, stated clearly that a Judge "ould reserve anv question of law nt a trial or proceedings. The question whether or not the refusal was a clire** contravention or section 423 was'a question of law. "Biit von are arguing now as to the second trial,'” said Mr. Justice Hoskinz, CounseJ further referred to the case of Rex v. Parkinson, in which non-direetion toot misdirection) had Involved no qu'’ 0 - tion of law. Principles th" exercise of the discretion of the Oo'rrt whether to reserve, a point or not. "Th* real question is.” said counsel, 'that u there is a point of law. which is not settled authoritatively and is capable of more than one viewpoint, then, however much the Judges disagrees, tho question should bo reserved.’’ A Few Suggestions. At this stage Mr. Justice Hosking commented that in England in such cases counsel did not even, have tho right ,o appeal to the Attorney-General. Mr. Hampson: “Under the legislation of 1920 I can come here. I respectfully submit that the fact that I no*se>flv« that right probably influenced. His Honour in not reserving the point as requested. Had I had. no right. I think His Honour would have reserved the case. . .." He added that Mr, Justice •Stringer had replied to a written question. The jury at the second trial was a most intelligent one. , ~ Mr. Justice Herdman: What would have'been the value of reserving the point? The Court would havq had to decide ns to a third trial. Mr. Hampson: In hope. Your Honour, that a disagreement might have been prevented. He added that the answer was against the prisoner. , "Do you mean that a jury should hare submitted no question?” asked Mr. Justice Herdman. "They had tho evidence, and on the evidence they should come to their decision,” was the answer. "I can’t see the value,” maintained tho Judge.

Mr. Hampson said that had tho answer not been adverse, the Court would have had power to award a new trial and to have oimshod the verdict. Mr. Hampson further contended that the Act never intended or corttemplated that disagreements should go on ad infinitum. At the second trial the nrisoner was in a worse position when the jurv disagreed, than ho would have been had a verdict of guilty been brought: for tire disagreement was come to although tho Judge’s answer was adverse to the prisoner. Mr. Hampson, in suhseouent remarks, referred again to the publicity tho case had received. There was not a jnrv that, did not have any knowledge of the comment. He asked the Court to grant leave to state the case. The Judgment. The members of the Court discussed tno matter among themselves without retiring. After some minutes, Mr. Justice Sim announced that tho Court had decided to reject the application without hearing the Crown case from the Solici-tor-General. Tn view of the importance of tho case a wriiten judgment would bo given. Tho Court then retired. At noon it resumed, and tho following judgment was read: — Wo are satisfied that tho answer giveli by the learned Judge at tho second trial did not amount to comment within tho meaning of section 423 of the Crimes Act. Tho question submitted by the jury does

not refe’ - specifically to evidence by the accused himself, but to the evidence of any persons who might be called to support the suggestions made by counsel as to the money in the possession of the accused. Tho answer given by the learned Judge deals with that subject, and carefully avoids any reference to any evidence which might have been given by tho prisoner himself. In the case of Rex v. Barker, 'it was held that reference by counsel to the fact that evidence for the prosecution had not been contradicted wa« not comment within the meaning of tho section. That case is authority for saying that the comment prohibited is a specific reference to the fact that the accused himself has not, givpn evidence. It is desirable to add that improper comment on a trial which results in a disagreement cannot be treated as raising a question of law on a subsequent trial. The application is therefore dismissed