JURY DISAGREES.

Auckland Star, Volume XLVIII, Issue 35, 9 February 1917, Page 2

JURY DISAGREES.

ON SERIOUS CHARGE. A QUESTION OF AGE. "JUDGE'S COMMENTS ON ACCUSED'S SILENCEHarry Ambrose Brinkoff, alias Harry "Lee, a returned soldier, was on Wednesday charged with having committed rape on a girl under the age of 1G years in Western Park. He was alternately charged with unlawful carnal knowledge. Hon. J. A. Tole, K.C., appeared for the Crown, and Mr. H. H. Ostler for accused. The case occupied the greater portion ot the day, and was continued yesterday [morning. After four hours' retirement the jury returned to the Court at 4.5 p.m., the "foreman stating that on a matter of contradictory evidence the jury could not agree. The point was handed to his Honor (Mr. Justice Hosking) in writing. THE AGE QUESTION. His Honor said the question was concerned with the age ol the girl. The jury had reasonable grounds to believe that accused believed the girl to be over the age of 16 years. The defence on that point had to prove the contention. It was not the duty of the Crown. If, by the evidence, the jury believed the defence had established the fact then the accused would have to be acquitted. It the point was not established the jury was entitled to discard the defence. His Honor could not say anything to help the jury to make up their minds on the question. They would, however, have to take into consideration what the appearance of the girl would convey, as to age, to a reasonable person. On the other liand. there was the answer given to the detective and to the accused's silence. JURY AGAIN RETIRES. Mt. H. H. Ostler, upon the retirement of the jury again, drew attention to his Honor's dire-*tion to the jury upon the accused's silence. Counf-el had been looking into the Act. When accused for an indictable offence was dealt with in the lower court an express form of words ■was put to him, asking him what he had to say, and stipulating that he is not obliged to say anything, as anything he "may state may be used in the course of later proceedings against him. If that "was so reflection upon the accused's silence seemed to be unwarranted. If not then the invitation of the Court to accused to withhold and reserve his defence was nothing but a snare and a delusion. His Honor said that the accused's periformance was certainly extraordinary. He did not take steps early to state what he believed to be the girl's age, in face of the latter's statement that she was 15 years. It was not exactly what one would deem to be the conduct of an innocent man, who would speak out if he was in the truth. He had drawn the jury's attention to the point owing to the contradictory nature of the evidence in its relation to the detective's statement. Mr. Ostler said that, in view of the ■unfavourable comment made on the accused's silence, he would ask that the point raised be put to the Court of Appeal. His Honor agreed to this, and explained that in directing the jury he had put the position quite plainly. The two jparties gave contradictory evidence, and what were then wanted were the collateral facts. The accused's sile.ice was one of such. His Honor said he would note that he repeated his direction «n the return of the jury, indicating that if it were not a circumstance—the matter of accused's silence—they might not pay attention to it. but on the second return of the jury, he had told them it was a circumstance, with the others, for determining on which side the probability of truth lay. DISAGREEMENT. At five o'clock the jury returned, the foreman inquiring whether a verdict of indecent a?sault could be given. His Honor said the position in respect of the age question would be the same as on the charge under consideration. If the girl was over the age of sixteen the question of consent would •be raised. The jury conferred, and the foreman announced a disagreement. His Honor expressed his appreciation of the care with which the jury had evidently deliberated over the case, and discharged them till Monday at 10.30 The case will be reheard. Mr. Ostler undertook the production of the accused, who was allowed out on baiL