SERIOUS ASSAULT

Evening Star, Issue 19785, 8 February 1928, Page 6

SERIOUS ASSAULT

farmer badly injured ACCUSED FOUND GUILTY In the Supreme Court yesterday afteriioon William M'Kinnel was charged with, on or about October 10 of last year at Roxburgh, assaulting Henry Bayley so as to cause him actual bodily harm. There was also a charge that accused caused actual bodily harm under such circumstances that, if death had ensued, he would have been guilty of manslaughter. Mr W. A. Bodkin appeared for the accused, who pleaded not guilty. The Crown Prosecutor (Mr F. B. Adams), in outlining the case, said the two counts referred to the same occurrence. The jury would have to consider the question of provocation (though it was contended for the Crown there was none), and also the question of the degree of force. Even if the jury were satisfied that Bayley was the aggressor, they would have to ask themselves if the degree of force was reasonable in the circumstances of the case. It was alleged that the assault Was a cowardly and unprovoked one. Bayley was an older man than the accused, and was severely injured. Accused would not give any explanation to the police, nor would he allow Ins son to do so.

Henry Bayley said he was a sheep fanner near Roxburgh, and was just ou sixty years of age. He had known accused for about eight years; accused had a sheep run about six miles away from his place. Till 1925 they were on friendly terms, but since then he bad ignored M'Kinncl, and passed him as a stranger. The estrangement was owing to some ‘ action taken by the Rabbit Board, of which witness was a member. On October 10 witness drove from Roxburgh in a dray lor his sheep run. Twice in Roxburgh bo had seen accused, but nothing was said. About half a mile from Roxburgh MTCinncl, in a gig, drove past. When abreast ot one of witness’s leading horses, M'Kinnel called out something. Then M'Kinnel went past a little way, pulled up, and got out. Witness drove past. Then accused got into his gig again, drove on, and said he would wait for witness up the road. Witness took no notice. A quarter of a mile further ou the accused was joined by his son, who was riding, and further on bv another man, who was also riding. 'At the hill the accused stopped his gig to speak to a and witness caught up to him. Forty cards further on witness pulled up bis horses to give them a drink at the water race. When witness reached the top of the hill ho saw the accused hall a mile further on. The accused bad stopped. As witness got up to accused he saw the accused picking up something that he took to be stones, and threw them into the big. _ M'Kinncl threw off bis coat, and said: “ Conn* on, come on.” Witness replied thav he' did not want to have anything to do with him, and accused replied that lie would come to him. Accused came on to the dray, and witness told bun to get off or he would throw him off Then the horses bolted, and witness went for the reins. Accused then bit witness a blow on the bead; witness was sure M’Kinncl had a stone in Ins hand. Everything went black with him for a time. Do was in a dazed con dit-ion, and did not, remember clearly what happened. When he came to, the accused was bolding him round Urn nock, and struck him two blows ou the nose. Witness let go the reins and took bold of accused, '(’be accused said: "Look out for your horses,” and witness went back to the reins. The accused got out of the cart. The horses were galloping, but after some distance witness managed to pull thorn up. Ho wont on, and later gave information to the police. To Mr Bodkin; Since accused bad been prosecuted witness bad frequently met him. On October 10 accused did not claim the bames that witness’s leading horse was wearing. Witness did not at any time jump out of Ins cart and challenge the accused. About a year ago a man named Crossan asked witness: "Are yon carrying that stick for MTvinnol?” and witness replied: "Yes.” Crossan was only joking. Evidence was also given by Dr Noel Fulton, John Janies Kinaston, Constable M'Mahon, William Gordon Harris, and James Williams. For the defence Mr Bodkin said that any blows struck by accused were used in self-defence

Accused, giving evidence, said that on October 10, when near the bridge, he called out to Bayley. “Those are my hames.” Bayley swore at him. and said: “I’ll paint you red with your own blood.” Witness drove on to get out of Bayley’s way. Ho did_ not want to fight. At the top of the bill he was repairing a trace when Bayley drove up. Bayley came across to witness, gi abbed 'him by the back of tho neck, and started kicking and punching him. Witness got a hold of Bayley’s head, and punched him about the eyes and nose. Bayley let go his hold, and witness also let go. Bayley’s horses bad begun to walk on, and Bayley went to catch them. To the Crown Prosecutor; Witness thought it was the mention of tho hnmes that infuriated Bayley and led him to make the attack. 'Bayley was the aggressor. Witness was on bis way to the run. and did not turn _ back to Roxburgh to inform the police. _ He did not regard the matte'’ as serious. The blows he struck were struck in self-defence. Witness’s nose was bleeding as a result of the fight. John Stringer and Tan M'Kinncl gave evidence, which supported the testimony of the accused. The court then adjourned, ami resumed tlii.s morning. In addressing the jury Mr Bodkin said he relied on the defence that the blows struck by M'Kinncl wore used in self-defence, if Hie jury believed that, then they would have to consider the degree of force used. In striking the blows M'Kinncl was governed by a certain element of fear, and learned counsel suggested that in those circumstances the accused was justihed in hitting as haul as possible, the only evidence against M Kinncl was that of Bayley, and as it was not corroborated m any detail, it should be considered with a good deal ot caution. M'Kinncl had been reported by the police to be a quiet and wellconducted man, and why it was sug-

gested ho suddenly changed into a beast and committed a cowardly and unprovoked assault was difficult to understand. There was a considerable clement of doubt in the case, and accused was entitled to the benefit of any doubt. The Crown Prosecutor, in addressing the jury, said they should look at the matter from a common-sense point of view in deciding whether accused committed the assault or not. They had been told two entirely different stories, and it was for them to deal with the probabilities. Learned counsel suggested that it was the man who was nursing grievances who committed the assault; it was M'Kinncl who had grievances, not Bayley. Learned counsel suggested that tho evidence of accused and his two witnesses with regard to the account of the actual conflict was deliberately false. It seemed impossible to believe the story of accused that Bayley, after suffering the injuries, which consisted of a large cut on tho head, a broken nose, aml a fracture of the base of the skull, ran after his dray. Even if accused wore acting in selfdefence he had no right to use the force he did; if accused did fear ho could easily have called on the two young fellows to assist him. His Honor, in summing up, said it was clear the injuries were caused by the accused, so that the undisputed facts of the case brought accused within tho terms of the section. It was then a question of what answer accused had to make. Accused said it was done in self-defence; therefore the onus of proving that rested with him. As a matter of law, even if the story of accused and his witnesses wore believed, it was the plain duty of the jury to convict accused because lie had brought himself within the terms of section 78, which' provided that, a person assaulted was justified in using force “if he believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm.” His Honor said that, speaking for himself, he would have no hesitation in declaring that tho story of accused and his witnesses was absolutely incredible. The jury retired at 11.32 a.m., and returned at 12.1 ff p.m. with a verdict of not guilty on the charge of assault but guilty on the charge oi causing bodily harm under circumstances that.‘if death had occurred, accused would have been guilty of manslaughter. The prisoner was remanded for sentence.