CONVICTION FOR MANSLAUGHTER

Press, Volume LXXXVII, Issue 26524, 12 September 1951, Page 8

CONVICTION FOR MANSLAUGHTER

DEATH OF CHILD AT AUCKLAND

HEARING OF APPEAL BEGUN

(New Zealand Press Association) WELLINGTON, September 11.

The hearing began to-day in the Court of Appeal of the appeal of Tony Richard Radich, of Auckland, a fishmonger, against his conviction in May last on a charge of manslaughter of the child Trudie Fay Guthrie, and the subsequent sentence of ten years’ imprisonment with hard labour imposed by Mr Justice Finlay on May 25. Mr Trevor Henry, of Auckland, is appearing in support of the appeal, which is being opposed by Mr V. R. Meredith, Crown Prosecutor, of Auckland.

The grounds of the appeal are set out in Radich’s notice of appeal as follows:

“(1) That the verdict is against the weight of evidence. “(2) That as a result of the refusal of an order for change of venue of the trial a miscarriage of justice has been caused.

“(3) That as a result of the refusal by his Honour the learned judge before whom the said application for a change of venue was heard, to hear the application in chambers and the consequent wide publications of allegations against me, the public mind was so prejudiced against me that I could not receive an impartial trial at the hands of the jury, and suffered a miscarriage of justice and cannot now receive an impartial trial from a jury in any town in New Zealand- . . , . *‘(4) The defence was prohibited by the police from seeing Richard Radich, a son of the appellant, who might have been able to give valuable evidence for the appellant, and so a miscarriage of justice was caused. “(5) The defence was prohibited by the police from seeing Pauline Radich, a daughter of the appellant, who might have been able to give valuable evidence for the appellant, and so a miscarriage of justice was caused. “(6) That his Honour the learned trial Judge wrongfully refused to allow newspapers to be put in in evidence by the defence, and allowed the prosecution to put in a newspaper in evidence. “(7) That his Honour the learned trial Judge wrongfully refused to allow the appellent to show certain sores on his leg. and improperly asked in front of the jury whether the appellant was being called to give evidence.

“<8) That the learned Crown Prosecutor improperly asked a leading question of the witness Pauline Radich in re-examination when hq said, ‘And that you heard him say shut up,’ and that the evidence in reply to such question was inadmissable, thereby constituting a wrongful admission of evidence. “(9) a. That his Honour the learned trial Judge misdirected the jury in that he failed in many respects adequately to put the defence to the jury. b. That his Honour the learned trial Judge misdirected the jury in questions of fact and/or law.” The Court consists of the ActingChief Justice (Sir Arthur Fair), Mr Justice Gresson. Mr Justice Stanton, Mr Justice Hay, and Mr Justice Adams. Hearing in Camera Refused When the case opened this morning, Mr Henry asked for an order that that portion 6f the appeal covered by grounds numbered 2 and, 3 should be heard in camera. He submitted that if Radiclr succeeded on either of those grounds it would be because of undesirable publicity which had already been given him as a result of the application for a change of venue, and further publicity now of the argument and facts relating to that matter would only add to the harm which had been done and render more difficult a fair and impartial trial if a retrial were ordered. The Court retired to consider the application, and on resuming Sir Arthur Fair said that if Mr Henry’s application were granted no member of the public would be entitled to be present and hear what was said. Such an application could be granted only in exceptional cases. The administration of justice in the presence of the public was one of the surest guarantees of liberty, and before the public could be excluded it would be necessary' to establish that exclusion was essential in order that the accused might have a fair trial. That had not been shown in Radich’s case, and the application would be refused. His Honour added that although the hearing of all the appeal was to be open to the public, it did seem to the Court that it was desirable that there should be no publication in the newspapers of the facts or arguments stated in support of the two grounds mentioned, and he felt sure that the newspapers would take note of the Court’s view and refrain from publishing those matters. Counsel’s Address Mr Henry then addressed the Court on the grounds of the appeal. Mr Henry said that Radich, a Dalmatian who came to New Zealand many years ago, became a successful restaurateur and purchased a house in Remuera road, Auckland. He was married, but the parties separated and the custody of the two children of the marriage was with Radich. He had found it necessary to employ a housekeeper, and he had advertised for one. A woman named Fay Guthrie received the position. When she joined the household in Remuera road she had with her her child of one year and 10 months, so that there were living in the house Radich and his two children and Miss Guthrie and her child. Radich, said Mr Henry, appeared to have been very fond of the child, for he often fed the child and tended to its other wants. On the night of the child’s death the household had all had their tea together, after which Miss Guthrie’s child was put to bed in her cot. Miss Guthrie then went to the pictures, and when she returned home she found her child apparently dead. She roused Radich, and an ambulance was called. Attempts were made to revive the child with brandy and water, but she did not swallow. The ambulance man said that the child was dead, and Miss Guthrie then washed the body and was cutting its nails when the police arrived. They had been summoned by the ambulance man. The police took charge of the body, which was badly bruised and marked, and in the early hours of the morning an autopsy was performed, which showed that the child had died from bleeding from a burst liver, and that there was also a broken rib the medical view being that this was a result of violence. In the subsequent police investigation Miss Guthrie denied having washed the child, and suggested that Radich had done so. Radich made a statement m which he denied all guilt, and suggested that it might have been the act of Miss Guthrie. Miss Guthrie had alleged that Radich had previously ill-treated the child. Radich was later arrested and charged with murder.

Second Autopsy Mr Leary, solicitor for Radich, immediately arranged for a second autopsy to be carried out on the child’s body. The medical experts for the defence came to the conclusion that although death was caused as stated by the Crown medical experts, yet the burst liver and broken rib might well have been caused by a minor accident, such as a fall on concrete earlier in the day It was immediately apparent to Mr Leary that it was essential to inquire from Radich’s two children whether the child had sustained such a fall but he was prevented by the police from interviewing the two children. Mr Henry then dealt with the two matters that had been the subject of his earlier application to have heard in camera.

After dealing with these matters, he detailed the attempts made by Radich’s legal advisers to interview his two children, and how they had finally been advised by Police Inspector Walsh

that on no account would he permit the two children to be interviewed. This was denied by the police, who said that they merely instructed Mrs Radich, who then had the custody of the children, that it would be inadvisable to allow them to be interviewed, except in her presence. Mr Henry submitted that the police refusal to allow the prisoner’s counsel to interview the children might have caused a miscarriage of justice. The Court adjourned till to-morrow.