APPEAL FAILS.

Hokitika Guardian, 28 September 1921, Page 4

APPEAL FAILS.

THE ON G A ROTO TRAGEDY. DECISION Ol*’ COURT OF APPEAL, j WELLINGTON, Sept. 26. It is tunny years since nil application of the type made to the Court of Appeal oil Saturday has been beforo the Judiciary of New Zealand. AH f i three trials Hakaraia to Txahu, a Alaori, was found guilty by a Hamilton jury of the murder of Patrick Elliott, at Onga.roto. on March 2ith and nas sentenced to death by his Homm AH Justice Stringer. The first and second juries were tillable to agree upon their verdicts and, during the period of retirement of the second jury the i"oi'cmn.it addressed the following question to the Judge:—■ “The jury would like your advice on the view they should take if tl’.ey consider that evidence has not Vcn brought forward by the defen. e in support of Counsel’s suggestions, when in their opinion, it could have been procured. This relates mainly fo the question of the money found on accused on Atari'll 26th.” His Memo r answered: “It was open, for the defence. if. they thought fit and proper, ' to bring evidence with regard io this. They have chosen not to do so. Mr ; ITatnpson. . . . has not called any evidence on that point. Aon must therefore. draw your own conclusions ftom this.”

When the jury finally disagreed and the Crown applied for a third trial, counsel for the prisoner (Afr Ai. H. Tlnnipson) submitted tbat bis Honour s direction to the jury was a misdirection under section, 1211 of the (limes Act. and asked for leave to tiling Hie question before the Court of Appeal. His Honour ruled that it was bis di.lv to order (lie third trial, which was commenced on fsept. 12th. and rosuUed in a verdict of guilty and the -e ntencing to (lentil of the prisoner. Mr .1 unlive Stringer declined to reserve the question raised by counsel on *bo ground Hint proceedings aT one trial bad nlotliing to do with those at a Inlet* trial. On Thursday morning. Air A. \\ . Hlair, acting under instructions from Mr Hampson. made application to tiie Court id Appeal for leave to bring the point before tiie Court. The , e piest was granted, and the question was argued on Saturday before the/ Ailing Chief .lustice (Mr Justice Sim), and their Honours Afr Justice Husking, Mr Justice llcrdman. Mr .in .tiro Si linger, and Mr Justice Salmon'!. Air Hampson appeared in support of the appeal, and the Solicitor-! ! eiicral (Mr AY. C. Ala,'Gregor. K.C.A. fm the Crown.

Mr lla mpsen. alter addressing the Cnurl at length, asked that the quesMon sliould be reserved for a r., ; 0 to he stated ill order that it might he fully argued. Mr Justice Sim said that the ( null did not inti 111] to call upon the Solici-tor-General to reply, and the .ludges then went into retirement. THE DECISION’.

At noon their Honours returned to the Court, and the Acting-Chief Juslive delivered the following jmlginent of the Court: “We, are satisfied that the answer given hy tho learned .fudge at the second trial did not amount' to common! within tho meaning *>f Section 12. Tof the Crimes Act. The question submitted by the jury does not rel’cr specifically to evidence by it,,, accused himself, hut to the evidence of any persons who might he .-ailed to support the suggestions made >v ceiinsol as to the money in the possession of the accused. The answer given' by the learned Judge deals with that subleet, and carefully avoids ally rel'er-

cine lo any evidence which might have been given by the prisoner himself. Hi the case of Rex v. Barker, .T2, V.Z.1..R. HI2. it was held that rel'eretiee hy counsel to the fact that eviik’iiee for the prosecution had not been onlradieted was not eomment within tlm meaning of the section. That ease i- authority for saying that the, comment prohibited is a specific refer,''tlee Io tile act that the accused himself has not given evidence.

Tt is desirable to add that improper comment on a trial which results in a, disagreement cannot, lie treated as iwising a question of law on a suhsoqui'iii trial. I'he npiplieation is therefore dismissed.''.

The decision of the Court was envoy I to the Executive Council immediate.

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