A NEW TRIAL

Hokitika Guardian, 6 October 1928, Page 2

A NEW TRIAL

' ; CALLING OF WITNESS WAS irregular t WELLINGTON, Oct. 4. v The Coijrt, of-Appeal was engaged this afternoon in hearing argument on the case, the King v. Robert M’Contf/key, stated by Mr Justice Smith under the provisions of the Crimes Ac p. On Justice Ostler, ,Mr Justice MacGregor, and Mr Justice.Rlair. For, the Crown i'i Air A. C. Fair appeaved, and for the ■ prisoner Mr H. R. Cooper.

The main facts are that accused was " j.arraigned-.at, the last 1 cjariiinal. sittings ;' pf!‘ the Supreme Court' at Pajnverston ■ i North upon ah indictment that he did * oji: Jupie, '3oth: 1928; indecently assault female. The substance of the case 'lfqjv■ thfevlGrown was that accused was of th# giylthat she < was of ’sixteen years, that girl,: and that corn seii^/lj|:itwhich the Crown denjed, rio‘defence. Apart from proof ihiat the girl was under the age ,of v sixteen -yearej .it was, .open to the Yvjpry vto 'find oh the evidence either . that the girl did or did .-not consent to acts The girl stated in evidence that she was fifteen years £ o£ .certificate was proi duced by the Crown. This was the only, evidence adduced as to her age. * Mr Cooper j ; on behalf of accused, submitted that-there was no case to go to

1 the jury/as there was no evidence to connect the girl with the girl named in " '■'•the birth certificate, . In summing up to the jury Judge Smith directed that the evidence rvas sufficient to show that the girl was under the age of sixteen years. Accused w-as found guilty by the jury. When accused appeared for sentence'his counsel asked that a case be prepared by the presiding Judge for the opinion of the Court of Appeal, in particular dealing .with the question of the girl’s age. ; A further question also raised in the case stated is whether the evidence of Captain Thorn, a Salvation Army officer who visited M’Oonkey while the latter was awaiting trial, should have been admitted. Captain Thorn was called bythe polic«e, hut was objected to by counsel for the defence, as communications werq niade to him in hi professional character/ In opening, Mr Cooper, on behalf of the prisoner, outlined the facts which

he had to the jury in the Court below. He submitted that, production, ofbirth: certificate was not sufficient evidence to establish the age of .such a person, unless independent ' evidence , was adduced identifying the girl ;jn Court : witli tlie one referred to - in the birth certificate. No such filr-therg-evidence- .was' brought, but his ; Honor considered that production of the birth certificate was sufficient, and directed the jury to that effect. H<* asked whether Mr Justice Smith acted rightly in law in allowing the Crown to call Captain Thorn after evidence for the defence had been called. He contended that Captain Thorn’s evi-

dence was inadmissible, first because it was- irrefevant. It could in no way affect the guilt of the accused. It was inadmissible secondly because it was only evidence to contradict a statement made by a witness under crossexamination. Further, Captain Thorn went there as a religious adviser. Any statement made to a religious adviser under such circumstances must be considered as a confession, and as such was inadmissible. Mr Fair, for the Crown, contended •that thte question of age did not arise in this case, for the question of „ consent, was not raised for the defence., : Evidence as to age'was only required to rebut the defence of consent. It would be required if consent was alleged by the defence. Such* defence must be affirmative, and could not Iv presumed. Accused made a complete denial of the offence, and therefore could not raise the alternative de-; fence of consent. Mr; Fair then proceeded to deal with the' palling of Captain Thorn, assertf-;\ ing ;bhat a new- trial seemed justifiable ■' tn him. , V- Their Honors were unanimous in de!j ciding that • a new trial should be alii •; lowed on the ground that the calling •; ;v of Captain Thorn was clearly irregular, j in~-. . ....... - SI .