APPEAL.

Auckland Star, Volume LXVII, Issue 57, 7 March 1936, Page 10

APPEAL.

MAREO'S PLEA.

LEAVE GRANTED. ,

NEW TRIAL SOUGHT.

FULL CO'JRT TO DECIDE.

MB, JUSTICE FAIR'S RULING.

Leave to ask the Court of Appeal for j a new trial on the grounds that the , verdict was against the weight of evidence was granted to Eric Mareo, the Auckland musician, by Mr. Justice Fair j in the Supreme Court this morning, t Mareo was sentenced to death for the 1 murder of his wife, Thelma Clarice Mareo, by the administration of the f drug veronal. The application will be f heard at the sittings of the Court of Appeal, which open in Wellington on Monday next. , Last Tuesday Marco's counsel, Mr. t Trevor Henry and Mr. K. C. Aekins, j sought from Mr. Justice Fair leave to i apply to the Appeal Court and lengthy argument was heard by Mr. Henry and i Mr. A. H. Johnstone, iv.C. Mr. Justice 1 Fair reserved his decision on that day. f Written judgment was read by his Honor in court this morning. Mr. Johnstone and Mr. R. Meredith represented the Crown, and Mr. Henry and Mr. Aekins appeared for Mareo. The prisoner was not in court. Principles of Appeal. In giving his decision this morning, . his Honor said that the application for leave to apply to the Court of Appeal for a new trial, on the ground that the verdict of guilty found against the prisoner on February 26 was against the weight of evidence, was made under section 446 of the Crimes Act, 1908, and was opposed by the Crown. The principles upon which it was to be determined had been considered in several cases. The effect of the decisions in those cases was that, in order to enable leave to, be given, it should be shown that it might be reasonably argued, not necessarily successfully,' that the verdict was against the weight of evidence. That meant that an argument deserving of consideration must be adduced to the'effect that the evidence of some essential fact or facts in the Crown s case, or, at least, of some fact or facts that had an important bearing on the case, was such-that the jury should not have accepted it as sufficient proof. "It is not necessary, in order to enable me to grant leave, that I should be of opinion that the contentions will or may be successful," continued his Honor, who then dealt with cases dealing with similar applications, notably Biex v. Yujnovich, Rex v. Bruges, Rex v. Styche and Rex v. Tarrant. Circumstantial Evidence. "In tie present case," said his Honor, "the Crown's case rested on circumstantial evidence, and the Crown was required to exclude any reasonable hypothesis which might account for the death of Mrs. Mareo other than that it was caused by veronal administered by the accused with the intention of so causing if. It was not contested at the conclusion of the Crown's case that it had been proved that Mrs. Mareo's death was due to veronal poisoning. The Crown had, in addition, to prove: (1) That 6he did not commit suicide by such means. (2) That she did not die by misadventure, i.e., by taking a lethal dose, either intending to take a medicinal dose of veronal or intending to take some other drug. (3) That she did die as a result of veronal administered by the accused with the intention of causing her death. The two former propositions are, of course, involved in the proof of the latter." Counsel for the prisoner contended on this application that it was reasonably arguable that there were essential facts of the Crown's case which, upon careful examination and analysis, no reasonable man would have considered proved to an extent amounting to moral certainty, or proved beyond reasonable doubt, in compliance with the higher degree of assurance required in criminal cases.. Many matters were referred to / by counsel, but I think it is preferable not to.set them out in detail. Contention. Counsel for the accused also claimed that a large part of the Crown's case depended on "inferences, plus the interpretation put on certain matters by medical witnesses and further inferences drawn, therefrom," and that these should not have been accepted. The Crown submitted that all the evidence questioned might properly have been accepted by the jury in proof of the charge, and to exclude suicide and misadventure, whether considered independently or in conjunction with the other evidence adduced. Moreover, they said that apart altogether from the facts, proof of which ' was questioned, the verdict was sound, ; and that it was not reasonably arguable that the verdict was against the weight of evidence. '. In cases proved by direct evidence the jury had to consider the of ;< witnesses, and the proof as to the existence or non-existence of facts, declared the judge. The task was one which jurors were undertaking frequently in the ordinary course of tlieir lives. Circumstantial evidence called for the determination of facts by inferences i'; from other sets of facts, and must be iJ such as to be not only consistent with 5 n-uilt, but inconsistent with any other }, rational hypothesis. Although jurors had experience of this process, it could, not be undertaken with the same, con--6 fidence as the determination of facts IP sought to be proved by direct evidence, ' unless the jur6rs had special experience •. of the difficulty. t Inferences Drawn. "Moreover, in the present case," said h his Honor, "the jury was asked to con- £ sider whether the inferences drawn by I the . expert witnesses from the evidence «?• put before them were correct. Inter-) P ences were therefore required to be made p' not only as to the reasonable possibility |T. of suicide or misadventure, but as to the I validity of the inferences drawn by the If: medical witnesses from the facts deposed | "In view of the difficulty of saying that |V 'an inference sought to lie drawn is the I- only one possible on the facts upon i. which it is founded, and in view of the k. scope for a difference of opinion as to |. the weight toattached to facts 1;, deposed to in relation to inferences K: required to be drawn, Ido not think that 1 . I can say there is not a reasonably arguA able ground upon which it may be contended, not necessarily successfully, that

the verdict was sucli as the jury, reviewing the principal facts and the inferences to be drawn from them, could not reasonably have-found." t ■ * Judge Withholds Opinion. The question as to whether a case was reasonably arguable might be decided in different ways by equally competent persons, and his Honor was not disposed to prevent the prisoner from submitting his motion to tlio Court of Appeal for its decision, particularly as such leave was in favorem vitae. "In saying this," concluded his Honor, "I purposely refrain from expressing any opinion whatever upon the question whether the inferences which, it may be assumed, were drawn by the jury were or were not properly drawn, or whether their verdict was or was not one which a jury, viewing the whole of the evidence- reasonably, could not properly find. These are questions to be decided by the Court of Appeal. The prisoner will therefore be given leave to apply to the Court of Appeal, at the sittings commencing on Monday next, for a new trial, on the'ground that the verdict was against the weight of evidence." Printing of Evidence. After his Honor had completed reading his decision, Mr. Henry mentioned the preparation of the evidence and the necessary papers for the Court of Appeal. It is customary in such cases to have all the evidence and legal application prepared and printed in book form. "Would your Honor consider an application to dispose with the printing- of the matter for the Court of Appeal?"' asked counsel. "It is cheaper to have the matter typed rather than have it printed, and the cost is an important matter to the prisoner."

His Honor said that the prisoner might have the necessary papers put before the Court of Appeal in typed form instead of having them printed.