NOT GUILTY

Sun (Auckland), Volume I, Issue 188, 29 October 1927, Page 1

NOT GUILTY

Dalmatian Acquitted On Charge Of Murdering Maori Girl’s Baby THREE DAYS’ TRIAL ENDS PAUL LENDICH, the Dalmatian gum-digger, stepped from the dock at the Supreme Court this morning a free man. For three days he had stood his trial for the murder of the infant child of Rosie Te Whiu, at Kauri Flat, near Kaitaia, on August 23.

The jury arrived at its verdict of not guilty after a retirement of only 25 minutes.

TN his evidence, Paul Lendich said -*• he had been keeping company with Rosie Te Whiu since about July o£ last year. He wanted to marry her. but her mother would not agree. He detailed what happened at his whare on August 23, and denied all statements made by Rosie about a baby having been born. The doctor asked him i£ a baby had been born, and witness said he had seen no baby. The defence was concluded at 9.45 p.m., and the final stages were entered into this morning. An Eloquent Appeal “Take this man who is brought from the dungeon to the dock; from the dock to the witness box with the warder’s hand on his shoulder; aye, and the noose about his neck. Yet he has never wavered from his story, he has been frank and candid throughout,” said Mr. G. P. Finlay in the course of an eloquent appeal to the jury for the Dalmatian’s acquittal. “I want you to compare his candour with that of the other side.”

"I want first of all to emphasise what your verdict will mean,” said Mr. Finlay. “Every element that goes to prove the crime of murder must be absolutely proven.” The conviction of a person without the production of the body was a dangerous one. Counsel quoted a case of three men who were hanged for the murder of a man who had disappeared, but who reappeared two years later. “If you can’t find the body, or proof that it was alive, you must be morally certain that it was in existence and that it was killed. The possibilities of death in this case are more numerous than that of murder. You must look at this case for certainty, not •uspicions or conjecture.” The Crown said there was corroboTation of Rosie’s statement, but a man's life should not depend on the word from one person’s mouth. Her evidence was not corroborated, ■ad it was not possible to convict on ancorroborative evidence.

“Should you believe Rosie? I beg to say that the Crown could not ask that. We have it that the child was living: that it was murdered. We have it on common ground that something was born. The prisoner has never denied that Rosie gave birth to something. You have to consider whether that was a living child. “The doctors say it might have been a child, and Mihi can’t say there was a child. The only evidence you have of a living child is of the girl herself. You can only iudce of her statements from her conduct. You can tell if she is truthful from what she said before. Ab soon as Rosie told prisoner about the “something” outside, he said he would go and get Mrs. Divich. Would he ask that lady to make clothes for a child if he was going to murder it? “He went to Mrs. Divich because Rosie was ill. He brings her down to see if the birth is imminent, and arranges for her to come down through the morning. If he got that woman to help in the confinement, I say he had only the thought of helping Rosie through the period and seeing that the child had all human assistance. “You find that Rosie Te Whiu is deprived of her first-born child, and to a woman friend she is bright and cheerful. “You know the very beasts of the forest and field will bellow and howl if their offspring are taken •way. Is that square with the conduct of the girl? “If there had been one lingering thought in that girl’s heart that this have been the dearest thing in the world, she would scarcely have been happy and cheerful as was proved to he the case. And if he had killed a haby would she not have shrunk from the man?” “Instead, she returned to live with him. The extraordinary thing is that it was only after the trouble with her tnother that the girl tells everyone •bout a baby. “This is no case at all, and this man’s life cannot be taken on the evidence.” ths° Unse * asked the jury to believe ’he story of the accused. He pointed cot that everyone had been impressed with his candour and frankness Not cne word or gesture of guilt had fallen troin him. k I claim to have established that siut* 63 story is highly improbable, nd that the prisoner cannot be conteted on the evidence you have had fore you. And I ask you to say that £* r i’s evidence is not sufficient to end a man to the gallows. Never 8 a jury been asked to convict on e uncorroborated evidence of one person.”

“But I must say that the case could not stand on her evidence alone.” “Where is the baby?” he asked. "If the child was born, then the whole of the evidence must be true. “Her evidence gave a complete story. If it were an invention it was a complete invention. He asked what reason she could have in inventing such a story and why all the animosity between the girl's people and the prisoner. It must have struck them that the prisoner’s attitude prior to the birth was decidedly apathetic. “We have the fact of pregnancy; we have the girl's story of the birth, and does the effect of all the evidence convey to your minds the conviction that there was an infant? If you are satisfied that a child was born, then you are entitled to ask who was responsible for its disappearance, and to bring in a verdict of guilty.” Counsel asked that everything be weighed carefully. No Sentiment or Sympathy “So much has been said about the gravity of this case that it is useless for me to exhort you to exert every care in coming to your decision/’ said Mr. Justice Herdman. “The facts must be considered with absolute impartiality. Nothing must influence you. If the facts convince you that he is guilty, then no sentiment or sympathy should sway you.” A high standard of proof was required in cases of this sort, continued his Honour. The onus of proof lay with the Crown. It had to carry the case beyond the region of speculation and suspicion. There could be no doubt that the girl was pregnant, but no body had been produced and none found, although diligent search had been made. It was not necessary to produce the body. The Crown had only to prove that the child was born and that it lived.

“The foundation of the case is the evidence of this girl Rosie. Her morals are just about as meagre as her word is unreliable.”

“You had to face the problem whether, if the child was born, it was alive or dead. I will refer you to the medical evidence which was comprehensive and covered all points. I wish you specially to consider the evidence of Dr. Rix, who told you that the girl suffered from a disease that could cause the death of a child.

If you think the child was dead at the time of birth, then you cannot convict this man. I hardly think you could take the responsibility of saying he is guilty on evidence such as this.” The jury retired at 11 a.m. and returned at 11.25 a.m. with a verdict of not guilty. Mr. Paterson intimated that owing to the verdict and the nature of the evidence, he did not propose to proceed on the charge of concealment of birth. He would apply to the Attor-ney-General for a nulli prosequi. His Honour said that was a wise course, and discharged Lendich, and pending the granting of the nulli prosequi he would be allowed his liberty.