ONUS ON CROWN.

Auckland Star, Volume LXV, Issue 143, 19 June 1934, Page 8

ONUS ON CROWN.

PROVE BOTH CASES. "SUSPICION NOT ENOUGH." FIRST OF COUNSEL'S ADDRESS. After a lengthy preliminary in which he tokl the jury that, although he was reluctant, lie must present the case for the defence at some length, Mr. Northcroft yesterday attacked the theory of the death of the Lakevs as presented bv the Crown. His address opened at p.m. Alongside Mr. L. P. Leary, second defence counsel, sat Mrs. Bayly, wife of the accused, and in front of him was seated Bayly's fatlier-in-law. Counsel for the Crown had presented the material to show the accused person was in fact guilty of the crime of which he was charged, while it was the duty of counscl for the defence to examine that case critically and in crossexamination, said Mr. Northcroft. Jt was the duty of the judge to direct the jury on matters of law. Mr. Meredith, 110 doubt unintentionally, had made an overstatement 011 the position of the judge in that the judge was to make a direction generally. "The decisions are yours," said Mr. Northcroft, "011 all matters of fact." The function of the judge was to direct 011 matters of law and no doubt his Honor would indicate and point out wliau the moi c important part of the cvidencc was, but whatever view he held it was 110 concein of the jury. The concern of the jury was the opinion which they themselves formed. Mr. Nortlicroit explained to the jury the various forms of murder under the criminal code. "Unless you are satisfied that the circumstances as revealed here are within the headings which 1 have enumerated," he said, "there is no murder, even though you may consider tiie killing is blameworthy, because, the killing then descends to manslaughter, and murder has not been committed." Public Interest in Case. 111 dealing with the public interest in the case, and its effect on the course of events, even to the jury's consideration, Mr. Northcroft said that the public was bound to be concerned when the dead body of Mrs. Lakey was found, and it was not unnatural, too, that there should be disquiet among the relatives at the disappearance of Samuel Lakey. These circumstances, he contended, had been exploited to a degree greater possibly than ever before in the history of the country. A degree of sensationalism had been given to the matter by the Press which was highly dangerous and inimical to his client. He added that the publicity which the case had received prior to and during the hearing at the Police Court had had a very dangerous effect on the impartiality of the community.

The Pres6, counsel said, had picked out the sensational features, not with the intention of harming Bayly, but with the object of interesting their readers. Thus a distorted view had been presented, and a morbid public interest created. Everywhere men met the ease was discussed and aspects had even become, in some quarters, the subject of witticisms. As a result of the Press treatment, unfounded rumours had developed and these had had a most prcjudical effect 011 accused throughout the community. As an outcome, Bayly had been branded as a criminal of the worst type. Freedom from Prejudice.

Counsel warned the jury to free its mind of any prejudice or any obsession of guilt on the part of accused which had been engendered by what had been said before the trial. The system would become a farce if a jury did not confine itself to what was said in Court and ignored everything that had been said outside. In spite of the intensity of the public interest. Bayly had elected" to be tried in the community where he belonged. No application for a change of venue was made because accused and his advisers believed an Auckland jury would disabuse its mind of any preconceptions of guilt.

Mr. Xorthcroft said he was confident that there was little danger that the view of the public as it existed before the case started would affect the jury in any way. Moreover, now that the case had been" dealt with in the Supreme Court 011 a different footing than was possible in the Police Court, it might well be possible that the public view was now entirely different from what it was before the trial started. Onus on Crown.

Dealing with the respective duties of the , counsel for the Crown and (he defence, Mr. Nortlieroft said that -the British system of justice in criminal cases started oIT with an overwhelming presumption of innocence on the part of accused. 1 lie onus was oil the Crown to prove its case to the hilt. Suspicion was not sufficient to displace the responsibiity of the Crown of proving guilt. 1

There were two charges against Bayly and the onus 011 the Crown was the same in each. Jll regard to Mrs. Lakev the nature of her death—and that would be a subject for serious challenge—had to be proved, and further that Bayly was the cause of it. It had also to be proved that Lakev was dead, what was the cause of his death, and then to link Bayly up with the death in such circumstances as would make it murder and not otherwise. Circumstantial Evidence. Mr. Meredith had pointed out that the case was based on circumstantial evidence. The Crown said 110 one saw the alleged crime happen, but that the accumulation of items" pointed very suspiciously to Bayly having committed it. By way of example, to explain the difference between direct and circumstantial evidence, Mr. Nortlicroft quoted a brawl outside a hotel at closing time in which a man seen by a policeman to be struck, fell to the ground and subsequently died.

The circumstances justifying a charge of murder, the indictment would bo 011 direct evidence aiid the case would probably resolve itself into a question as to whether there had been provocation, whether deceased really died from a blow, or various other defences.

I However, the charge would be founded 011 direct evidence as distinct from circumstantial evidence. Mr. Meredith had indicated that the jury could quite safely act upon circumstantial evidence, almost as safely as upon the direct evidence of an unimpeachable witness. It was a matter of common sense and there had been serious warnings by many eminent judges regarding the reliance to be placed 011 circumstantial evidence. They could take a set of circumstances pointing to A bavin" ci-'imitted an olTence, but if those eir° cumstances were viewed fairlv and dispassionately they might indicate just as plainly that B, C or some other

person could have committed the offence, In those circumstances they could not be relied upon. If there were only one circumstance among them to indicate innocence, the whole system of circuiu-. stantial evidence went. Man of Unblemished Character. Discussing the suggestion by Air. Merc-, dith that motive was not important, Mr, Northcroft said it might be true that in some cases an abnormal man might be found doing something for 110 apparent reason. But a normal man did not act in that extraordinary way. Unless the jury cculd see that a proper motive had been established by the Crown then the charges made would be repulsive to the jury and would be rejected. "Bayly is a young man of unblemished character. Notwithstanding all tho rumours to the contrary, Bayly stands before you with an unblemished character," emphasised counsel. "He ig happily married to a lady who \<rs certainly home with nim 011 that night. He is the father'of two children and is obviously considered an affectionate and attentive father to them. He is comfortably placed 011 his farm and friendly to the better of his neighbours. He «as courteous to the police and honest in his statements. lie told the police openly and candidly of his relationship with the La keys. Not in a single instance ha.s he* been proved untruthful in the statements he has made." The characteristics of Mrs. Bayly, added Mr. Northcroft, were not unimportant for this reason. If Airs. Bayly was present on the farm during tho night of the alleged crime, then it was utterly impossible that Mrs. Bayly should not know that something untoward was going 011. When sho knew that her husband was suspected of murder it was not conceivable that she would be able to hide her terror ' if she knew that anything untoward occurred that night. Relations With Lakeys. Referring to what Air. Alcredith had described as the bitter relationship harboured by Bayly toward the Lakeys, the evidence showed that the relationship was perfectly friendly until August, 1932. Bayly and Lakev had worked together, Lakev being employed on Bayly's doing carpentry, and until August, 1932, they shared a common outlet. That was shown by the arrangement which was made over the grazing of some sheep, and such an arrangement in which one farmer grazed his sheep in the other's paddock could not have been carried out unless there was the utmost good will and mutual faith and trust between them. Then came the trouble over those sheep in August, 1932. Air. Aleredith had made much of this trouble, as he was entitled to do, and much had been made of what was alleged to have been said by Bayly, possibly in anger, at that time. It was known from the witness Fnrniss that Bayly had negotiated an outlet with him 011 the opposite side of Lakey's. Ho did not behave as a bitter man would, do because of this quarrel over the sheep. He did what any neighbour would do, he avoided any contact with the Lakeys, and in doing that he did only what a sensible farmer would do He did not, as he could have done, put the Lakeys to the substantial expense of opening up the other road, which he was legitimately entitled to

use. "It. has been suggested that Bayly further showed his animosity by removing the cream stand from Lakey's gate, and it lias been suggested" that that cream stand was their joint property," continued Mr. Nortlicroft. "But if that had been so, the Lakeys would surely have stood up for their own rights and would have made an effort to prevent Bayly from taking the cream stand. That stand was entirely the property of Bayly. His actions over the stand did not show vindictiveness in any way. Now, Furniss has told us that lie was intimate with Bayly. Bayly and his ivife used to go to the Fur.niss' and play tennis, but Furniss never heard a word about this quarrel over the cream stand from Bayly —he heard it from Lakey." "The only other incident was one at Christmas time, 1932. and this incident was put forward by the Crown to show the hostility and bitter feeling of Bayly towards Lakey, but this was quite obviously originated by the witness Stent. At the time when Stent was working for Bayly'he went through Lakey's property to Bayly's. Ho apparently fell foul of Mrs. Lakev for doing so, and. to use the vernacular, was ' ticked off' by her. The evidence was that Bayly had threatened to cut the fence which was used by Stent, ant this is put forward to «how the hostility bv Bayly to the Lakeys. This was stated by Stent and Stent alone. Argument Over a Bull. "When Stent left Bayly's employ that was the end of it. Bayly did not do what had been suggested. *At that timo the outlet through Furniss' property was not complete, and Bayly did some grading on it. lie did not want to run any risks, and made arrangements so that he would never again have to go through Lakey's property. Apart from that Christmas there was also an argument over a bull. The witness Baklick had told the Court that Mrs. Lakey had dogged this bull from her own property back on to Bayly's, but if again there was any venom it was shown at that time only 011 the part of the Lakeys and not by Bayly. There, was the alleged threat of what Bayly would do to a certain part of Lakey's anatomy, but Lakey only laughed, an 1 I think it can be taken that the argument over the bull was not of tho serious and venomous type that the Crown would suggest. There was also the alleged statement by Bayly that the Lakeys would not sec the season out, but in that it was perfectly obvious that Bayly referred to the economic situation. Bayly's father was Lakey's mortgagee, and who would know better than Bayly the financial position of tho Lakeys ? In Irue Perspective. Counsel invited the jury to consider in its true perspective the evidence of enmity, hostility and ill-will which the Ciown advanced and upon which it asked them to believe that Bayly committed double murder because' ho hud had quarrels in August and at Christmas. If matters of that sort were to be seriously advanced and juries were to act upon them, it would lie a desperately unsafe position for any farmer who had had any sort of quarrel with a neighbour and that neighbour came to an untimely end. Quarrels among farmeis, unfortunately, were not uncommon, and these ones appeared to be of the usual type, with 110 degree of vonom, and Bayly had properly withdrawn from any possibility of a recurrence of quarrelling. However, the Crown had become obsessed with the idea of enmity. Mr. Meredith said he could not understand why Bayly should keep 011 telling the police of his quarrels with Lakey. Accused had been entirely candid and honest in answering those questions by indicating that he and Lakey had not had anything to do with each other for several months, but this innocent comment had been seized upon by the police and made the foundation for the suspicion that had eventually placed Bavlv in the dock.