UNANIMOUS DECISION

Sun (Auckland), Volume IV, Issue 1007, 25 June 1930, Page 1

UNANIMOUS DECISION

Appeal Court’s Judgment

EVIDENCE HELD ADMISSIBLE

Reasons To Be Given Later

Press Association WELLINGTON, Today. THE appeal of Arthur Thomas Munn has been dismissed. Munn was sentenced to death in Auckland for murdering his wife, Lillie May Munn. 'The case before the Court of Appeal, which gave its decision this morning as stated above, dealt with the admissibility of certain evidence given at the trial.

Tho court, consisting of the Chief Justice, Sir Michael Myers, Mr. Justice Herdman, Mr. Justice Reed, Mr. Justice Ostler, and Mr. Justice Adams, was engaged yesterday in hearing the argument of counsel on the question of the admissibility of this evidence

Counsel for Munn, Mr. E. 11. Nortlicroft, of Auckland, said the first question was the admissibility of the evidence of the children of accused by his first marriage. Tho Awo girls had lived with accused until two years before the death of the second Mrs. Munn. The son had left home only one year before Mrs. Munn’s death. The evidence of each of these children was broadly to the effect that Munn was of a domineering disposition in his matrimonial affairs, and that lie was quick to be angered, and was violent to his wife.

Such evidence, said Mr. Northcroft. was very little different from that which he was accustomed to hear in maintenance cases, in actions for separation, which were based on cruelty. Such evidence was evidence not of any settled mental state concerning Munn and his wife, but merelv of Munn’s behaviour under certain conditions. “TIME TOO REMOTE” Mr.. Northcroft submitted, first, that this evidence was too remote in point of time to be evidence of malice, especially as it was not inseparably connected with the allegation of murder, and, secondly, that the evidence was not accompanied by any declarations which would tend to prove that Munn was guilty of murder. The evidence of the children, he said, amounted to no more than evidence of a succession of domestic conflicts. Had it been that Mrs. Munn was found in the house dead from violence, said counsel, and had it been sought to suggest that she had died from the very same type of violence as that described in the evidence of the children, then such evidence would be admissible. There must be some logical association between the facts sought to be proved and the type of cruelty described. The danger that evidence such as that in question might inflame the jury against accused was undoubted. Evidence should not be admitted unless it would help the jury in determining whether accused did or did not commit the alleged murder. If the Crown could have brought evidence of cruelty to the wife right up to the time of her death, then there would be a logical association with the alleged crime, but where a long period of time intervened, there was a distinct lack of association, which rendered the evidence irrelevant.

On the suggestion of the Court, Mr. Northcroft postponed his address on the other question until after tho replj’ by Mr. A. Fair, K.C., counsel for the Crown. CONTENTIONS BY CROWN

Mr. Fair submitted that the evidence of the children had been correctly admitted by the Judge. He said evidence of the type such as that had for years past been admitted without objection in criminal cases, in order to establish a motive. The evidence of the children was admissible because it was relevant, and it was relevant in that it had tended to show a motive. It was also relevant to rehut possible defences which might be raised by accused, such as a lack of motive, the intentional taking of the poison, or accidental taking of the poison. The fact that the evidence of the children related to a period at least 12 months before the alleged crime, said Mr. Fair, did not render it inadmissible, for where it was a fair presumption to be taken that the state of mind of accused as described in the evidence would continue, such evidence was admissible notwithstanding the lapse of time between the period referred to and the commission of the alleged crime. Mr. Fair contended that the evi*dence showed that there had been bad relations between husband and wife for over three years before her death: and, lastly, that the evidence was also admissible in establishing a motive. The Court then adjourned, after stating that it would indicate today whether it desired to hear Mr. North- 1 croft on the admissibility of Mrs. Brown’s evidence.

When the court sat this morning, the Chief Justice stated that the Court did not desire to hear Mr. Northcroft on the second point of the appeal, namely, the question of the admissibility of Mrs. Brown’s evidence. The court was unanimously of the opinion that the evidence of the children was admissible; but as the matter was of importance it. would put its reasons into writing at a later date. FACTS RECALLED Before the case for the Crown opened in the Supreme Court at Auckland. it was agreed that the admissibility of certain passages in the depositions of witnesses taken in the ■ Magistrate’s Court should be considered. Counsel for accused objected to the evidence which the Crown proposed to tender, and which was afterward given, of Oliver Arthur Herbert Munn, Dorothy Ida Munn. and Mavis Leone Munn. children of accused by a first marriage, on the ground that the evidence tended to prove that accused was unkind and cruel to his wife in ! her lifetime; that he bere her ill-v/ill; ! and that the act of giving strychnine was designed and not accident r.!. . Mr. Justice Herdnrn decide ‘ that i this fevidencq could be received, but

the jury was warned at the trial that it pointed to a state of affairs some time distant from the date of the alleged murder, and that it was suggested by the defence that there was ill-feeling between father and children. During the trial, counsel for accused objected to the admission of this evidence. Counsel also objected to the passage in the depositions of one Mary Jane Brown, relating to a conversation which, took place between witness and

Mrs. Munn, when she first visited the latter before her death. His Honour ruled that this evidence should be excluded. At the conclusion of the trial Munn was found guilty and sentenced to death.

In pursuance of the objections taken by counsel, a case stated was prepared by Mr. Justice Herdman asking for the opinion of the Court of Appeal on the following questions:' (1) Was the evidence of the children properly admitted? (2) Was the said passage in tho depositions of Mary Jane Brown properly excluded?

THE DEATH PENALTY

HOW SENTENCE IS CARRIED OUT

GOVERNOR’S APPROVAL “The sheriff shall within seven after receiving any notice that the Governor-General will not interfere with such sentence, carry out the same.’* Tho Crimes Act of 1908 provides for the execution of prisoners under sen* tence of death in these words. It provides further, that where sentence of death has been pronounced it shall be the duty of the sheriff of the district in which the execution is to take place to carry out the sentence. In practice, the case of every murderer is considered at a meeting of the Executive Council, attended by ti*e Governor-General and such Ministers of the Crown as are available. Under English law the murderer is permitted three clear weeks between the sentence and the date on which it is carried out. The Crimes Act provides that the sentence shall be carried out within the walls of a prison and is to be attended by a doctor, sheriff, gaoler or any other officers the sheriff may require, together with any justices of the peace and ministers of religion who may wish to attend. Other male spectators, not exceeding ten, unless by leave of the Governor-General, that the sheriff may see fit to admit, may also be present. All these persons must remain until the sentence is complete, according to law, and until the medical practitioner has signed and delivered to the sheriff the necessary sentence. Tho responsibility of finding a suitable person to carry out the execution rests upon the sheriff, who is the registrar of the Supreme Court, and should do one come forward the §he C iff v/ould have to perform the execution. a final recourse volunteers are called for from men serving terms of imprisonment.