SECOND TRIAL.

Auckland Star, Volume LXVII, Issue 185, 6 August 1936, Page 23

SECOND TRIAL.

JURY DISAGREES. CHARGES AGAINST WOMAN. THE JUDGE'S SUMMING-UP. (By Telegraph.—Special to " Star.") NAPIER, Wednesday. After deliberations lasting for four hours tlie jury in tlie case at tlie Supreme Court in which Isabel Annie Aves, alias Craike, married woman, of Hastings, was charged on seven counts with making unlawful use of an instrument, failed to agree. A new trial was ordered to open at Napier on August IS. No evidence was called by the defence.

"It has come to my knowledge that people are saying that no person should be charged with this offence unless tlie persons involved are placed in the dock alongside accused," said Mr. H. B. Lusk, Crown Prosecutor, in opening his address. '"Iliat is an improper suggestion, and it is quite evident that it would be impossible to secure a verdict ill such a case. The principal evidence in this case is that of a girl or a woman who had been operated on. Are we to say that we would rather see this crime flourish in our midst than that the Crown should call this evidence? A person carrying on this offence has in most cases a most lucrative business."

Mr. Lusk asked the jury to contemplate whether the stories of the principal female witnesses were concoctions. He examined the testimony of all the witnesses, especially that of the principal witnesses, in close detail, and pointed out that not one of the witnesses had been shaken by crossexamination. "It would be almost inconceivable to suggest that all these witnesses have entered into a conspiracy and told the same story," he said. "If it is suggested that Aves was lending money, you are at liberty to investigate the books, and you will see that she must have had au extensive clientele in the money-lending business. You have evidence that in a period of two years accused made purchases of over 200 instruments. In the hands of anyone other than a medical practitioner these instruments could be used for only one purpose. It has been suggested that a section of the property could be seen from the house next door. Gentlemen, the burying of the bodies of children such as you have seen in the picture is not carried out in the light of day. If you are to believe the first female witness, accused told her she buried tlie remains in lime in the garden. In such a manner were they found." "Connecting Link Not Proved."

"What you have to consider," said Mr. C. G. Harker, counsel for accused, ''is whether you dare to convict on the evidence of accomplices. It is a painful matter for me to criticise the character of these witnesses. The first wifness has told us she did not marry the man responsible because lie was not the man she loved. You could perhaps forgive a moral lapse between two persons with a genuine attachment. Concerning the evidence of Dr. Lynch, you will remember that he said it was possible for a woman to use an instrument on herself. In not one case of the discoveries has the connecting link with the accused been proved by the Crown. There is a hiatus there which the Crown has not briaged.""

Although instruments had been produced, Mr. Harker continued, there'had been no evidence that they were found in accused's house at all. A number had been mentioned, and there was evidence that two had been found in the yard. There was nothing to prove the interpretation which the Crown evidence had tsVtt^P 011 le cliscover y Pf books and 1.0.TJ. s. "If they had a guilty significance they could have been destroyed with a match," lie said. "Yet Aves had no objection to the police finding them and examining them to their heart's content."

In his summing up Mr. Justice Blair pointed out that the jury were concerned with only two matters. The first wa3 as to whether an instrument was used, and secondly what was the intent with which the instrument was used. Those were two simple questions. He remarked that any person who took a noxious drug for the purpose of procuring a certain result was guilty of an offence. You are only asked to find whether, to your reasonable satisfaction, an instrument was used on one, more or all of the persons involved, and what was the intention. The offence is the intention behind the use of the instrument. The Crown relies upon the statements of various witnesses that the operations were successful. In all criminal cases from murder downwards the law is the same—the onus is upon the Crown to establish the allegation. If at the end of the Crown's case matters are left in doubt and you feel the Crown has not sheeted home the crime then accused is entitled to the benefit." Question of First Approach. His Honor directed the jury on retirement to take the charges one by one, and to ask themselves in each case whether they were satisfied that guilt had been proved, or whether they were! not satisfied that it had.

"It has been stressed by the defence that the witnesses had first approached the accused, and that she had not approached them. Frankly, I did not see the meaning of the contention, as it would be impossible for Aves to keep in track with all women in trouble in New Zealand. You are entitled to believe the story of the girls without the corroboration, or you are entitled to consider that it was a wicked concoction for the purpose of getting' this woman into trouble. The Crown's case is that the women asked for something to be done and that something was done with a certain result. The last witness was in tile premises at the time the police arrived, and the very fact that she made a statement is entirely different from the taking of a statement on oath before the Court. If you accept the general evidence of the Crown you may consider there was a general business being carried on. I have no doubt that whatever way the evidence presents itself to you you will return a verdict accordingly." The jury then retired. When the jury returned after four hours, the foreman, when asked for their decision, replied, "No agreement." Mr. Justice Blair: May I take it, Mr. Foreman, that there is no possibility of an agreement? The Foreman: No hope at all, your Honor.

The Judge: I could not be of any assistance to the jury?—l think not, your Honor. Mr. Lusk then applied for a new trial and a change of venue. The Judge: I am prepared to grant formally the request for a new 'rial. The date of August 18 was then fixed as the opening of the re-hearing, to begin ?fter Mr. Justice Blair's return from the Gisborne session.