COUNSEL CONTINUES

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

COUNSEL CONTINUES

TODAY'S PROCEEDINGS

CLOSE EXAMINATION

(By Telegraph—Press Association.)

AUCKLAND, This Day. After speaking for two and a half days, senior counsel for the defence, Mr. Northcroft, continued his. address to the jury on Bayly's-behalf when the.Supreme Court resumed this morning. Counsel is not expected to finish his address before the Court rises this evening. There was again a large attendance of the public, who followed Mr. Northcroft point by point with the keenest interest.

Mr. Northcroft continued to deal with, various points relating to the appearance of bones included in the exhibits. Counsel said he would' suggest that the bones had not been broken up by burning, but deliberately broken up to provide evidence for the police.. He then showed the jury an exhibit which he declared showed none of the fragility that was to be expected when bones were broken of themselves after burning. He suggested that it had been broken by being pounded: on a clay surface.

"Like this exhibit, many exhibits, when examined critically with an open mind, show characteristics such as that," he continued. "That bone has not been broken at Bayly's place by Bayly, because on the police' account the bones were broken on the concrete floor. Had the polico fulfilled their duties thoroughly they would have examined the earth on the bone, analysed it, and found where- it came from."

Counsel next showed the jury another bone, said to be from a shin. That bone had been smashed before it was put in the fire. "Look at the firm edges," he said. Other exhibits, he

declared, were also strongly suggestive of a miscellaneous collection of bones, including a skull, having tyjen burnt and scattered about Bayly's property. Apart from very few, such as arm bones, they were bones which could have belonged to different bodies, irrespective of age or sex. There was nothing to show that the arm bones and other bones were from the same person who owned the skull. Some of them might have belonged 'to a big man, while some of them, and the small skull, might eve., be a woman*. Tho_ suggestion that there were no duplicates meant nothing, as apart ■from the skull there were only three or four fragments of bones identified definitely as human. It was extraordinary that bones which were most protected and would bo destroyed last had not been found, while more exposed bones such as the skull, the elbow, and the heel had survived. Charred bubbly matter was so indiscriminately disposed with the bones as to suggest that they came- from the fuel rather than from the flesh on the bones, as it was found where it should not be found, and was missing where it was to,be expected to bo seen. THE CIGARETTE LiaHTEE,. Counsel then dealt with factors which tho Crown claimed connected Lakey with the bones. What was there to prevent Bayly having been given wick material for his cigarette lighter by Mrs., Lakey when they were still friendly. There was nothing to justify the view that ' the lighter was not Bayly's own. The evidence that this lighter was Lakey's had been extraordinarily weak. All the witnesses had said that Lakey's hair was auburn, going grey. The tuft produced was brown, and there was nothing to suggest auburn about it. At counsel's request the jury handled tho tuft individually, each examining it closely. After reminding the jury of the comparison with Mrs. Bayly's hair made by Mr. Leary, Mr. Northcroft said' that had the hair been torn from Lakey's head the. roots would be expected to be found in conjunction with it. The intense heat in the drum.would shrivel the hair up if it had been through the fire described by the Crown, which said that the tuft had been subjected to such heat as to destroy the possibility of blood tests for congealed matter. It should have been possible for the Crown to produce Lakey's hair, as three brushes were found in the house. However, the Court had.been offered no conclusions as to what had been found when the brushes were inspected. The hair in the tuft had been cut, and not -pulled out. It might well' be Mrs. Bayly's. "There is not a scrap of evidence on which the Crown can rely to show that the hair is from Lakey's body," he contended. THE WATCH EXHIBIT. After remarking that the mark found by the police on'the brace runners was observable on many brands, Mr. Northcroft said that there was no evidence that Lakey's watch was missing or that he wore it on that day. Stevens had said that Lakey's watch was identifiable by scratchings inside it. In the case produced there were no marks visible to the naked eye. The jury closely inspected part of the watch case. "See if you dan see the marks with or without a glass," invited counsel, who, in reply to his Honour, said that the portion was the only part of the case that had been recovered. The watch was not of uncommon type; indeed, six had been sold at Huntly, while many might have been sold in Hamilton and Auckland. There might be. many such watches in the district. 'Ono might just as easily have been owned by Bayly or Lakey. Had Bayly wished'to dispose of the watch he could have thrown'it into, the lake. If he had wanted to conceal its identity he could have crushed; it with an axe. . ' "No one but a lunatic could believe that it had been treated in this manner to conceal , its identity,'? continued counsel. The class of working trousers .worn by Bayly, he proceeded, had the -'same type of button .as was attached to tho Palmer nap trousers worn by Lakoy. To suggest that the fragments of cloth represented parts of Lakey's clothing was unfair and unjustified. Old clothes burnt as refuse on a bonfire/would give tho same type of fragments. CRIPPEN CASE RECALLED. Counsel recalled the Crippen case, in which a piece of cloth recognisable as from Crippen's pyjamas" sheeted the crime home to him. In this case the Crown did not merely say, "Here is a piece of pyjama cloth." They took it a step further and proved its definite character. The Crown iv the present case had not connected the fragments in any way with Lakey. The gumboots worn by Lakey had black uppers and white soles, and were of a type commonly used'iu the district. Bayly himself wore such boots. "Here again there was nothing to connect the fragments with " Lakey's boots," said counsel. "There is nothing of identification at all here s "

He then reverted to a legal authority previously. quoted to show that it was improper to convict unless there was indisputable proof that the person alleged-to have been murdered had been murdered.

"Each anpL every one of you must be_ satisfied that if you',find my client guilty," in six or twelve months Lakey will not turn up alive or his body be discovered in circumstances not associating Bayly with his disappearance," continued Mr. Northcroft, who then turned to the manner of Mrs. Lakey's death. Dr. Gilmour, in his first report, had said her death was due to asphyxia, and it was not until ho came to the Supreme Court that Dr. Waddell had said she died from drowning. Her death might have arisen from drowning, coma supervening on a blow, or strangulation. The real question was: Did she-get a blow which knocked her out, and then in a state' of coma asphyxiate, in which case there was no murder, or did she receive a blow which rendered her unconscious, and was-slw then placed in the water to drown ? "NOT PROVED DROWNED" "1 put it to you that Mrs. Lakey has never been proved to have been drowned," declared counsel, who then reviewed ' the medical evidence. "I invite you to' regard with a good deal of suspicion the evidence given by Dr. Giliuour on that point." Dr. Gilrnour had said that if she had been lying on dry land ho would not have said she died of drowning. Ho was assuming, therefore, that because she was found in the water she must have been drowned.

After quoting from a work on medical jurisprudence from which Dr. Gilmour had dissented, counsel said that in view of this his evidence must be regarded with further suspicion. Dr. McFarlane had said that death was not due to drowning. Ho was. the first doctor to see Mrs. Lakey who performed a postmortem examination. If the jury was not satisfied that Mrs. Lakey was drowned, there was nothing to justify the belief that she was murdered by Bayly or anyone else. Tlio jury_ must be satisfied . that it was criminal and not accidental. If a person saw Mrs. Lakey lying there, believed her to be dead, and placed her in the water, that was not murder.

THE BLOOD TESTS.

Mr. Northeroft described the manner of applying the precipitin test for human blood. Dr. Gilmour had said he had not checked the anti-serum used, later saying that control tests had been made with the blood of-sheep, pigs, and, ho thought, a rabbit. No control tests had been made in regard to horse, cow,

hare, or pukeko blood. Dr. Gilmour had then sheltered himself by saying that because the serum came from a well-known house, it must be all right. However reputable the firm might he, there was a possibility of human error. No witness was entitled to say that blood was human unless he had tested the anti-serum used with all other types of blood. The Crown had removed every particle of bloodstains from Bayly's trousers, leaving none with which the defence could check the tests.

Counsel next discussed the blood group tests. All human beings fell into ones of four groups. If the blood found on Bayly's knife; sledge, and trousers had been group-tested and had been found to be not blood from the accused, his wife, or his children, that would have been a point against the accused, while if the blood in Lakey's yard had been found to be in a similar group the Crown case would have been strengthened. Dr. Gilmour had said there was not sufficient blood to perform tests, but ho might not have been skilful enough to apply the tests. There was no question that the tests could bo done with the most minute stains. Had Dr. Gilmour left availablo for the defence some portion of the-stains, then it would have been open to the defence to call persons who could do it, or to send the stains to Sydney or some other centre where there were pathologists sufficiently skilful to do it. The defence then might have had an opportunity of declaring that the stains on Bayly's trousers were his own definitely, and not Lakey's or Mrs. Lakey's.