CASE FOR DEFENCE

Evening Post, Volume CXVII, Issue 145, 21 June 1934, Page 12

CASE FOR DEFENCE

BAYLY MURDER TRIAL

REVIEW OF THE EVIDENCE

COUNSEL'S SUBMISSIONS

(By Telegraph—Press Association.) AUCKLAND, June 20. After addressing the jury for 14 flours,-Mr. Northcroft, who is defending William Alfred Bayly on a charge of double murder, had not concluded when the Court rose this evening. He is expected to occupy all tomorrow before he ends his address, while it is probable that the jury will spend all Friday visiting Ruawaro. Dealing this afternoon ■with the legal aspect of suspected murder when no corpse was discovered, MrJ Northcroft advised the jury that if no corpse had been found, circumstantial evidence that murder had been committed had- to

be as strong as direct evidence,

Bayly is charged with murdering Christobel Lakey and Samuel Pender Lakey at Euawaro on October 15, 1933.

The Crown Prosecutor, Mr. V. E. Meredith, with him Mr. F. McCarthy, is: prosecuting, while' Bayly is represented by Mr." E. H. Northcroft and Mi\ L. P. Leary, instructed by Mr. R. B. Lusk. Mr. Justice Herdman.is on the Bench.

Mr. Northcroft stated that it would bo shown that the presence of bones at Bayly's property showed that they could not have been placed there by Bayly. The police had been at Bayly's on November 16, some weeks before Bayly had been arrested and bones began to be found. They then took two bottles of charcoal. There was rid bone in that charcoal. If the Crown's theory was correct, it was amazing that neither bone nor ashes of bone had been found then. The defence declared that this charcoal represented ash from the boiler when the pigs were killed. The charcoal had yielded a piece of lead, but this might well have come from an old lead-headed nail or a piece of flashing. Mr. Meredith had admitted that the lead could have come from debris in a number of innocent ways. On November 16 Detective Findlay had taken deposits from fight across the cow yard. AH that was obtained.comprised infinitesimal quantities of bonedust. '■ . SCRAPINGS TAKEN BY POLICE. "We know the whole place was searched over and scrapings taken," continued counsel. "Detective Allsppp took five scrapings, all of which were negative save one from the drum, at the. bore. That -was charcoal and ash with bone dust, burnt nails, and staples. There was also lead. There is nothing inconsistent with what Bayly said was the use of the drum. He told the police that he cut the drum- to heat iron at the bore. You have there miscellaneous bits of nails such as those from a packing case, .which Bayly told the police he had used in a fire there.

-"That exhausts all that was found on November 16. Anything which looked like ash. or charcoal was taken, but no bone, was : found. Any bone found subsequently must be regarded with, the utmost suspicion. The bone found later was found m positions where it must have' been found during this seaTch, if it was there then.

"During a.further search on November 29 everything had been thoroughly inspected. Scrapings from where the drum stood, also the two. parts of the drum,, were taken, and. again nothing suspicious was discovered. In other Words, detectives had been over the place again and again," declared counsel. "If anything incriminating were to be found' it would have been found then. ... ' . . ' ?

''After Bayly was arrested'we start to get .material found when searches for this very class, of material had been already carried out. One exhibit taken at Bayly's by other.detectives has been described as obtained from 'tho cowyard. There is no evidence that the bone fragments comprising this exhibit had been washed. Can you believe that they had been in the-cowyard, trampled in. mud and dung,, from the middle" of October to. the middle of December?" he asked. "I don't hesitate to suggest, using the language of miners, that that gives clear indications of salting."

Mr. Meredith said that a large number came from the dip.

,"I quite expected that point,", replied Mr. Northcroft. "The police themselves have made no attempt to put in one container the bones they got from the dip and in the other container the bones got from the cowyard." "THE CLEAREST PROOF." . After further argument, .Mr. Northcroft. said he was prepared to read the evidence of every constable on this question. ' ■

"Perhaps you had better do it," remarked his Honour.

"I repeaj; that the bone found on that occasion'is the" clearest proof that someone deposited bone at Bayly's place in. an effort to assist the police to get evidence against Bayly," contended counsel, who reiterated the point that if the material had lain in the yard and the dip for six weeks it would not bear .its present appearance.

"The same observation applies to the lighter,".-lie continued. "If that lighter had lain in the dip, could it possibly have remained in . this condition all that time? Even the wadding in the bottom is comparatively clean." The finding* of the material ''in Bayly's garden was almost more mysterious, said counsel. The Crown invited the jury to believe that Bayly concealed the material about the sheep dip and cowshed and dug it into the garden. The police iad been looking everywhere for Lakey's body. Constable Elms arrived at Bayly's at midday on October 16. The garden then must have been, according to the Crown theory,, conspicuously freshly dug. Next day detectives visited Bayly's, as did Constable McEachern, who had lunch there. During the same week other police officers, including Chief Detective Sweeney, had visited Bayly's, while on tho Saturday . the police arrived with a search warrant, inspecting the property thoroughly. Yet beneath their eyes was a piece of ground newly dug in which it was now said incriminating evidence was found. Actually the garden had not been dug then._ "When the police did commence to dig in tho garden they went straight to a.small area 10ft by 10ft, wheT.e the material was found.

"All that is found there is negative," continued Mr. Nortlicroft. All that had been found was the rubbish commonly found after a domestic bonfire. 'There was also found bone resting" on the' sods. This was in such small quantities that it • could easily haye. been dibbed in', without disturbing the appearance of the garden. In other words, it could easily havo been placed there by a person other than Bayly. "When the police arrived they went straight to the place and commenced .to dig. The whole vegetable garden had been, neglected.

ACTION BY ANOTHER PARTY?

"It may have been accidental, hut it strongly suggests that someone placed the material there,, and. then through an indirect channel comrnuni-

cated with tho police, as I suggested was" done with regard to the guns," continued Mr. Northcroft.

Mr. Meredith said that the police had dug the whole garden. Mr. Northcroft replied that the whole 'garden had now been dug by the defence at his orders, so unfortunately the jury could not judge, but he would read the record of tho evidence to show how much garden had been dug.

He then read part of Detective Allsopp's evidence.

"The point I make is this: The police went to the garden. At the very point where they started digging material is found," he continued. "The paint is too significant to overlook. The point has been made that bone had been found with wood ash in.each instance. Ash is a good fertiliser, and Bayly used it-frequently. Wherever bone had been placed it would have been found in conjunction with ash throughout the garden." .

There was one curious matter- in relation to the teeth, said counsel. False teeth are very resistant to fire. Of the set of 13 teeth only four have been found at Bayly's. Lakey's upper set had one tooth missing. There was found on October 16 a spare tooth at Lakey's house. This tooth did not harmonise with the rest of the teeth. "When the police found the teeth at Bayly's, and compared the loose tooth with these, they found that they did not fit, so another loose tooth had been then conveniently found at Lakey's.

"It is a most extraordinary thing," he continued. "How does that tooth come to be found at Lakey's in December at a place the police had thoroughly searched?" ' Another fact was that none of the lower teeth nor part of the jaw had been found. Of all the bones of the skull found, all related to the upper portion, and none related to the lower portion:.. . : ONLY SMALL PART OF SKELETON. -The only part of the? Crown ease which survived cross-examination, Mr. Northcroft declared, was that a small portion of a human skeleton had been found at Bayly's concealed in extraordinary places. On that alone the jury was asked to convict Bayly. "I ask you if. there is any evidence' on which you' are entitled to act that Lakey is dead at all," he declared. " Although there be evidences of crime, and circumstantial evidence links an accused person with that crime, circumstantial evidence cannot be used, or must be used with caution, to prove that a crime has been' committed. In other words, there must be a corpse or the existence of a corpse demonstrated by proper evidence before a person can be convicted of murder." After reading authorities in support of. his contention, counsel said that unless the fact that murder had been done was proved/a body must' be found. Circumstantial evidence niust be as cogent as direct evidence in identifying remains before any. jury was justified in that there had been murder, let alone concluding that there had been murder by an accused person. The jury would have to be definitely satisfied in the "first place that the remains were those of Lakey; the Judge would direct the jury on this point. "The jury -will be directed properly, you can rest assured of that," observed his Honour. Mr. Northcroft said that counsel was entitled 'to bring the Judge's attention to any matter on which the jury should be directed. "If counsel is correct," rejoined his Honour. Mr. Northcroft said that the jury had to consider whether Lakey might even now reappear in some obscure part of New Zealand, or even have gone overseas. It was for them to say whether Lakey was dead. It was on the evidence of experts alone that the jury was invited to form the view that the relics exhibited represented one body. Counsel then ■ quoted from several volumes passages relating to expert evidence. ■ \ ' . . "A FALSE SCENT." "It is notable that of all the bones positively identified as human, all but four or five came from the upper part of the skull, which is the commonest form of human relic to be found," said, Mr.'Northcroft: "I suggest to you that these are thp remains of a few casuallycollected bones, collected for the purpose of burning and scattering on his property," declared counsel, who said that any oily, vegetable or resinous material coming in contact with dry bones in a. fire would give a charred, bubbly appearance. The jury would remember the. experiment of burning bone with molasses. If molasses would give, that result, any other oily material in a fire would give bubbly matter. Charred and bubbly material had been said to occur where muscle was present on bone, yet on one exhibit bubbly material covered.portion of the broken edge of the bone. None had'been found in the interior of the skull where it woiild'be expected .if the. skull was burnt with the brain tissues inside. There was every reason to believe that these .bones were a miscellaneous collection which could easily be picked up anywhere to provide a 1 false scent, not to leod to the conviction of Bayly, but to divert suspicion from the,person responsible. The Crown . had advanced the proposition that all the bones had been burnt at the same time* and for the. same length of time, but this could not be supported, concluded Mr. Northcroft. ' '

After counsel intimated that the point on which he was about to next embark was lengthy, the' Court adjourned.