OWEN KANE'S CASE.

Wanganui Chronicle, Volume XIX, Issue 3206, 31 October 1876, Page 2

OWEN KANE'S CASE.

Fiat Justitia, Euat Ccelum. {To tlie Editor of the Chronicle.) Sic, — It is with much reluctance that I take upon myself to call public attention to the case against Owen Kane, lately tried in the Supreme Court. I hoped that some one better qualified than I can pretend to be might have come forward to protest against the, verdict, as being based upon utterly insufficient, and frequently contradictory, evidence. I" am avwge of the great difficulty that must neafpy always exist in establishing the gilt of a man charged with the offence attributed to Owen Kane ; .but, on the other hand, I am also aware of the equally great difficulty attendant on the endeavour to disprove such a charge. Even where a prisoner h§s the advantage of counsel (which Kane had not), scarcely any positive defence is possible. If an alibi, or j incompetency, can be proved, the prisoner escapes. Otherwise, ..jbhe defence is dependent solely upon such negative evidence as improbability and unreliability of witnesses. But in the particular case in question, an. alibi was impossible. The prisoner made as good a defence as could be expected from a man unepucated, unaccustomed to legal forms, and with the burden upon his mind of the fearful results of a failure to establish his innocence. But bystanders could not fail to notice point after point, which he, in his anxiety, let slip; and it is to some of those points that I am desirous of calling public attention, in the hope that if (as I believe) injustice has been done, steps may be taken to remedy it before the indellible disgrace of the latter portion of the sentence falls upon the unhappy man. First, then, Kane was charged with the commission of an offence on a certain Thursday. The girl upon whom it was alleged to have been committed, after contradicting herself a dozen times, at last settled down to the statement that the offence was not committed on a Thursday at aIJ, but upon a consecutive Tuesday and Wednesday, and (omitting the Thursday) a third time on the Friday. The prisoner very properly pointed out that the Thursday described in the indictment not being one of these three days, the charge and the evidence were absolutely incompatible. This was overruled by the Judge, who said that the exact day was immaterial. I was much struck with this ruling, remembering certain somewhat similar cases, in which everything was considered to depend upon correspondence of time. It was stated by the girl that she was told by the nurse to take out a plate into the kitcheu,irad,-after returning thencs, to take out a second plate. It was at the time of her takiug out the second plate (she said) that the offence was committed. The next day (Wednesday) she was again told to take out two separate plates, and the offence (she said) was again committed. The Thursday seems to have been a dies non, but on the Friday she was again told (she said) to tike out two separate plates, and the offencs was committed the third lime. When the nurse was examined, she denied ever sending the child into the kitchen with plates ! Although the offence was (as alleged) committed three times (that is, on the Tuesday, Wednesday, and Friday) the child made no complaint whatever to any person. But on the Sunday, the nurse (with whom she slept) noticed certain things which caused her to make inquiries of the child, and to examine the underclothing she had worn during the week. Two articles were observed °to be soiled in a peculiar manner, one of which was put in the wash-tub (!) and the other preserved for the inspection of a medical man. Meanwhile, the stepmother, and afterwards the father, cross-questioned the child, who at last stated that Kane had committed the offence. When the doctor arrived, he examined the child and the reserved article of underclothing, and pronounced that the offence had been committed. The prisoner was thereupon taken into custody. Now, I aak attention to the folio win <* questions : — ° Is it likely that the chiH, having been subjected to acute pain, as shown by her own and the doctor's testimony, (l) Never cried out or made subsequent complaint ; (2) Went again next day into the kitchen, when the offence was repeated ; (3) Went again, two days after, into the kitchen, when it was ngain committed ? Why was only one article of underclothing preserved? Why did not tho doctor insist upon the other being carefully dried, removed, and examined ? Why was not the man's clothing examined ? Why did not the doctor make the one examination which the.circumstances suggested as' indispensable? " Want of instructions from the police," is a very lame excuse. The doctor is not a young man, who need be afraid of a policeman, or bashful in dealing with a delicate case. Was he not once a Coroner P And, if so, would he then have considered " want of instructions from the police " sufficient excuse for a medical man to neglect the very examination which alone could positively prove that— (l) A crime of the kind had been committed at all: and— (2) That a man— not a mere boy— had been concerned in it. He said the article lie examined showed the presence of three different substances, viz,, d (say) A, B, and C. But on being pressed in the Court, he had to admit that he amid not be sure that B and C were present it all ! It is a positive fact that this gen;leuaan at first stated without reservation that the article was discoloured by the combined action of A, B, and C, afterwards admitting that he cquld not be sure of the two latter without microscopic examina- ' tion ! And this gentleman had been a Coroner ! I conteni that a proper microscopic examination might even now prove one of two things: rither— (1) That C was not what the doctor asserted it to be ; or (2) That C could uol be connected with the prisoner. Differeno oE age, or constitution, and various other incidents indicate another person. I can imagine n< other reason than the objection to keeping the jury lockod up all night, why the omi|fced microscopic examination was not madj during the trial. It would have been litfr that a dozen men shjuld be shut up ten hours than one man ton years, to say nophin<j of the iudellible

disgrace attaching to being twice flogged. I have before alluded to the disadvantage under which the prisoner laboured in not being 1 defended by counsel. ' This waa particularly noticeable when he endeavoured by cross-examination to elicit that the suspicions of the parents had at first been directed against another person ; that there had been a row in the house on the Sunday when the discovery of the offence was made, and that the word " liar " had been used by another person when interviewed by the parents. Counsel might have forced out a good deal on this subject, and would have quickened the memories of some of the witnesses for the prosecution in a manner that would have been very conducive to the establishing of the truth. There are several other important points to which I cannot with propriety allude in the columns of a public journal. I have had great difficulty in keeping some of those I have referred to within the bounds of adinissibility. I must not conclude without urging the greatness oE the probability that a man of forty years, married, and having three children, whose character was pieviously unblemished, would commit such a crime in the place and under the circumstances alleged. The kitchen is a room with two doors, two windows, and a shuttered loophole. It is actually a thoroughfare, standwith one door opposite the ba.ck door of the hote 1 , and one door towards the yard, a narrow passage only separating it from the hotel. It is liable to intrusion at any moment. Besides the landlord and his wife, there were three other children, and three servants, to say nothing of boarders;, and guests, and neighbours whose windows look right on to the kitchen. One scream, one call, must have brought assistance; while, at any moment, the nurse who had just given the children their dinner, was to be expected to bring in the other plates and table apparatus. The other children (so the girl said) had started for school, and the nurse had gone upstairs, upon each of the three occasions on which the girl was told to take in, first her own, then her brother's dirty plate. [If this occurred only once, not three times, it is the girl's own mis-description, not mme — that is what she said.] But Kane could not know that the children had gone out, and the nurse gone upstairs, except the girl herself told him. But she alleged that she had never spoken to him. The unreliability oE the child's statements was shown in numerous other ways. ' Perhaps the confusion of days and dates (which was almost inxetricable) was only to be expected from a girl of eight years old. But the contradiction between her and the nurse as to the order to take plates into the kitchen was absolute. Then she said the prisoner did not tell her " not to tell," " did not speak to her at all," that she had never seen him till the day the offence occurred, although he had been there about two months, and had taken her pudding when she was one day locked up, and that each time the offence was committed she was in the kitchen " three minutes " — not " two or three minutes," observe, but definitely " three minutes." This coincidence is certainly suggestive of more than spontaneous and truthful utterances. And here I would allude to the delicate way in which the prisoner put his questions when cross-examining the girl and the other two female witnesses. He shove hard to elicit replies on those points on which his case depended, but with an 1 utter absence of that coarseness andinnuendbf rom which, the evidence of the doctor was by no means free. Whether this was natural to the prisoner, or copied from the equal but not superior delicacy of the Drown Prosecutor, I cannot say j but it was very noticeable. Finally, I would remark that the summing up, though eminently fair and impartial, did not seem to me sufficiently explicit for the illiterate and obluse men of whom common jurors are notinfreqently composed. ■ : The summing up did not, I think, point out sufficiently clearly the great difficulty of defending a case of the kind, nor did it sufficiently instruct the jury to give the prisoner the benefit of all doubt. No allusion was made to the necessity for basing the verdict upon the evidence, and the evidence only. The discrepancies between the child's evidence and that oE the nurse, were not pointed out ; nor were the self-contradictions of the child (to my mind) sufficiuntly clearly set forth. As to the legal question whether the day mentioned in the indictment, not being sustained in the evidence, does, or does not, affect the validity of the trial, I do not presume to offer an opinion. I can only repeat that I heard the ruling of the, Judge to the effect that it did not, with very great surprise. _ In conclusion, I wish to raise the question whether the imprisonment of a man for a long term of years, together with flogging, is not a feartul punishment to be dependent upon the unsupported testimony of any child under ten years old. In this case there was not one word of evidence to connect the prisoner with the crime he was tried for, except tho evidenae of a little chit who contradicted herself in every second answer. In spite of modern " improvements " (?) I incline to the good old rule—" One witness shall not rise up against a man for any sin, but at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established,"— l am, &c, Aegus. October 30, 1876.