Supreme Court Man Acquitted On Charge Of Metal Theft

Press, Volume C, Issue 29509, 10 May 1961, Page 8

Supreme Court Man Acquitted On Charge Of Metal Theft

Douglas Hesse, aged 39, a workman and part-time scrap-metal dealer, was acquitted by a jury in the Supreme Court yesterday on a charge of stealing scrap metal valued at £3l 6s 3d, the property of Adcock and Sons., Ltd., sheet-metal workers. on November 1, 1960. Mr Justice Richmond discharged Hesse. The jury took 50 minutes to reach its verdict. Mr C. M. Roper conducted the case for the Crown. Mr B. McClelland, with him Mr R. G. Blunt, appeared for Hesse. If the jury thought it was a reasonable probability that the scrap metal was sold on credit, then that was the end of the matter and the accused must be acquitted, said Mr McClelland in his final address to the jury. “You might well think it was a sale which was to be booked up to the men who took it. There was no hue and cry when they left the yard with the scrap metal. A. month later a letter is sent by Adcock to Foster asking for the prices charged so they can be put on an invoice. There is no hue and cry about theft on November 1 or on December 6. "I suggest to you it was not a cash sale but merely one on credit, with a bill to be sent out later. If you think that, then Hesse must be acquitted.” “Unreliable” Mr McClelland said the second vital question was one of identification. He suggested strongly that the Crown witnesses were unreliable in this respect. They had seen Newsome standing near the accused outside the Court at the opening of the criminal session, and immediately said Newsome was the man who was with the accused when he took the scrap metal. “When they told the police about the man they said was with the accused, they said he was dark, thick set. with Maori blood, aged between 30 and 40. Then they identify Newsome, aged 17, nearly 18, as that man. Newsome. on oath, said he does not know the accused, McQuoid, Coster, or Adcock. It is obvious the Crown witnesses are mistaken about Newsome. Therefore you may well think they are mistaken about the accused.” Counsel said that Coster and McQuoid had said they were the ones who took the scrap metal and paid for it later. Coster said he had signed the docket. “Why should Coster come here and commit perjury? What benefit would it be to him to stick his neck out, if he is lying? McQuoid only knew the accused for a short time, so why should he commit perjury? “Both these men were out of Court when the Crown witnesses gave evidence. They gave their evidence unhesitatingly and were not tripped once in cross-exam-ination. Can you. imagine them giving a story that is a complete fabrication without being tripped up? “The Crown has charged Hesse and now Newsome with this theft. Now we have Coster and McQuoid saying in effect, ‘We are sorry; it wasn’t Hesse and Newsome, it was us.’ So we have the peculiar situation of the Crown, if its case is right, of saying that Coster. McQuoid. Newsome and Hesse, who denies the theft, are all liars.” Mr McClelland submitted that the jury must have reasonable doubts whether the sale of the scrap metal was a cash one and whether the accused was one of the men who took the scrap. Police Criticised Counsel criticised the method employed by the police to identify the accused. The accused had asked to be put on an identification parade but had never been put on one. “This is because the Crown witness, Trewern. had been shown police photographs and picked out the accused. The danger of this is that jurors must then know that the accused must have had previous convictions.

“The photographs have not been produced here. The other photographs may have been of men with beards or Maoris. I do not know, and you do not, because we have not seen the photographs. “This is the danger of not using the proper means of identification—a parade. I am not suggesting that De-’ tective Main pointed but the accused’s photograph to Trewern. To be fair to Detective Main. Trewern said he did not. But Detective Main knew that Grimes had lent his truck to the accused, and you might think that by a gesture or a word the detective indicated the accused’s photograph. “The accused has admitted that he has previous convictions but that his last offence was eight years ago. It must be that the police photograph is eight years old, and you may think the accused has changed a lot in eight years,” Mr McClelland said. Crown’s Submissions Mr Roper said the defence’ counsel well knew that the Crown could not disclose the fact that an accused person had previous convictions. To produce the photographs in Court would have done this. “If my learned friend had told the Crown that the accused was going to disclose his previous convictions, then the photographs could have been produced by the Crown without doing the accused any harm,” Mr Roper said. The case had taken an unusual turn, Mr Roper said. The jury had listened to both the witnesses for the Crown and for the defence, and their stories were diametrically opposed. "You have heard evidence that it is quite customary to use false names and false addresses in the scrap-metal trade. In these circumstances you may well think it essential that all dealings should be on a strictly cash basis,” counsel said. The jury had seen Coster. McQuoid, and Newsome paraded before it by the defence. The jury had also seen the accused. Coster, McQuoid and Newsome were not fairheaded, but it was significant that Adcock’s, when Coster telephoned from Dunedin, the day after the accused’s arrest, to say he was the man who had taken the scrap metal, had replied: "Are you the fair one?” Mr Roper said If the jury believed the defence story, neither of the Crown witnesses, Trewern or Dellow, had seen the accused. “But here we have, if that is the case, both these two

men identifying the accused, who is connected with this particular deal because he lent them Grimes's truck," Mr Roper said. Summing-Up The case really turned on the two points—whether it was a cash sale and whether the accused was one of the men who took the scrap, said his Honour in his sum-ming-up. He said that if the jury was satisifled that it was a cash sale, it might consider possession of the scrap metal had been obtained by a trick. If the jury was satisfied that the accused ' had been properly identified, it had to be satisfied that he had realised it was a cash sale and had taken advantage of having the scrap metal loaded on the truck. The evidence that it was a cash sale seemed to be Adcock’s statement that cash sales were the rule of his firm and the rule in the scrap metal trade. The evidence of the letter asking for prices to be included in the November accounts and Coster’s evidence that cash sales were not the custom of the trade was contrary to Adcock’s statement There seemed to be little evidence apart from Adcock’s statement that cash sales were the custom, said his Honour. Identification There was no legal compulsion on the police to hold an identification parade and there was nothing legally wrong with asking a witness to pick out a photograph, said his Honour. “However, if the police choose to use this method there is room for comment as to the reliability that can be attached to the identification by way of photographs. "In this case it is unfortunate, for the reason given by Mr Roper, that the photographs have not been produced here to see how similar the types of men in the photographs were to the accused and so on.” His Honour said the case was a most unusual one in that not only had the accused said on oath that he had nothing to do with the transaction but also two men had said on oath that they were the ones involved in the transaction. “If you believe the evidence of the Crown then you must believe that these two witnesses have come here to commit perjury,” his Honour said. If the jury believed that what the accused and his witnesses said was true it must acquit. If the jury had some doubt whether what they Said was true or not it should acquit the accused.