THE COOPER CASE.

Manawatu Herald, Volume XLV, Issue 2586, 29 May 1923, Page 3

THE COOPER CASE.

CONVICTION MUST STAND. COURT REFUSES LEAVE TO APPEAL. Wellington, Last Night. The Court of Appeal this morning heard argument in the matter of an application of Daniel Richard Cooper for leave- to appeal to the Court of Appeal against his conviction for murder. At Cooper’s trial his counsel, Mr Treadwell, asked Mr Justice Chapman to reserve for the opinion of the Appeal • Court the following questions: (1) The point as to the admissibility against Cooper of evidence relating to the disappearance of any other child than Miss McLeod’s child; the one for the murder of whom he was indicted; (2) as to whether Cooper and his wife should not have been tried separately. Mr Justice Chapman, however, refused to reserve these questions. He admitted the evidence objected to and refused to separate the trial. A motion for leave to appeal to the Court of Appeal was, therefore, filed this morning before the Court of Appeal. Mr C. A. L. Treadwell, and with him Mr Hanna, appeared in support of the motion, while Mr W. C. McGregor, K.C., SolicitorGeneral, and with him Mr Maeassey, for the Crown, opposed.

On the Bench were His Honour Sir Robert Stout, Mr Justice Hosking, and Mr Justice Salmond. Mr Treadwell, for Cooper, said he did not intend to argue the question of a separate trial. As to the admissibility of evidence, he submitted that the evidence objected to was not admissible on the ground that there was no prima facie case of murder by the Coopers, or either of them at the time when such evidence was tendered by the Crown. Mr Justice Salmond: You say that such evidence is not admissible unless there is sufficient evidence to convict without it? Mr Treadwell: Yes. Sir Robert Stout: Then it would be useless admitting such evidence at all.

Mr Treadwell, continuing his argument, said that unless the corpus delicti was established there was no case to go to the jury. Mr Justice Salmond: What is the corpus delicti? Apparently it is the offence in itself independently of the question of who committed it. Mr Treadwell: Yes.

Mr Treadwell, in continuation of his argument, dealt with legal authorities, which he contended supported his propositions. There was, he said, no evidence at the time the evidence objected to was tendered that Miss McLeod’s child was dead, much less that it was murdered. The identity of the body found was not proved; it was only after the facts of the murder had been established that evidence as to other bodies being found could be adduced for the purpose of proving that accused was the culprit. Mr Justice Salmond: Must there be a prima facie case of felonious intent for the evidence to be admitted? Mr Treadwell: There must be proof of murder. Mr .Justice Salmond: You say that the evidence is only admissible to confirm a prima facie case of felonious intent in a case which is ready to go to a jury? Mr Treadwell: Yes. Mr Justice Salmond: Must there be a prima facie case on which accused could be convicted? Mr Treadwell contended further that the Crown could not call evidence of similar but unconnected facts to prove the main fact on which the Crown relied. The evidence as to Miss Comich’s child was, he said, inadmissible in that it did not tend to prove the intention to commit murder. In continuation of his argument, Mi’ Treadwell said that in the wellknown N.Z. case of Rex. v. Deans, a baby farming case, the body of child in respect of which a charge of murder was laid, had been identified before evidence as to the discovery of other bodies was admitted. In Cooper’s case the body of the child was not identified. Sir Robert Stout: “Surely there was evidence of identification?” Mr Treadwell: “It is submitted that there was no reasonable evidence of identification. There can be no reasonable doubt that identification was not established and could not be established by evidence.” Continuing, Mr Treadwell said that to establish a prima, facie case the evidence must go a long way further than ,that, for instance, in a charge of concealment of birth. Even a confession of murder would not be said to establish a prima facie ease of murder against the person making the confession. Sir John Salmond: “What authority have you for that statement?”

Mr Treadwell referred to legal authorities on law of evidence, which he maintained supported his proposition. There must, he concluded, be cogent evidence, and not mere speculation to establish a prima facie case of murder. In Cooper’s case such evidence was not present. Mr MacGregor, K.C., SolicitorGeneral for the Crown, said that Mr Treadwell’s submissions were based on a misconception of law. These contentions were, he said, disposed of in the New South Wales baby farming case of Makin v . the Attorney-General. The true position, he said) was that in proper eases, evidence or similar but unconnected facts could be admitted to show accused was guilty of a particular crime. Cooper’s was such a case. In Cooper’s statements, he had admitted receiving children and

he had even used the words “system and business.” Why should not the Crown show what had become of the children? Sir John Salmond: “That is the question we have to decide.” The legal position in New Zealand said Pie Solicitor-General, was set out in the case of Rex. v. Wlhitta (a case of a charge of bookmaking). That case, he said showed that evidence of similar, but unconnected facts was admissible to prove the main charge.

Mr Justice Hosking: “Could the Crown have set out and given evidence of these other bodies, without first giving evidence of the main facts charged against Cooper?”

The Solicitor-General: “It is submitted that it could.” Mr Treadwell addressed the Court shortly in reply, and said that the case of Makin v. the Attorney-Gen-eral did not touch the present case. At the conclusion of argument, the Chief Justice said that the Court was of the opinion that leave to appeal must be refused, but that in view of the gravity of the case, the reasons of the Court would be given in writing, either on Tuesday or Wednesday next.

The Court of Appeal then adjourned until 10.30 to-morrow morning.