A WOMAN'S CAPE

Evening Post, Volume CXVI, Issue 146, 18 December 1933, Page 11

A WOMAN'S CAPE

CONVICTION QUASHED

THEFT NOT LEGALLY PROVED

A conviction entered in the Magistrate's Court recently by Mr. J. S. Barton, S.M., against John Paton Hardy on a charge of stealing a woman's cape was quashed by the Chief Justice (Sir Michael Myers) at the Supreme Court today, his Honour holding that the case had not been proved. The case against Hardy at the' lower Court was of interest owing to the fact that after he had been charged with tho offence he married a woman who had previously made a statement to the polico concerning the cape. As a result the police were unable to use the statement as evidence against Hardy. . Outlining tho facts of the case at tho hearing of the appeal today, Mr. C. Evans-Scott said that on December 16, 1932, a cape was stolen from the bedroom of Mrs. Dyer, wife of the licensee of the New Zealander Hotel., Nothing was seen of the cape until March 4 of this year, when Mrs. Dyer, who was then in Christchurch, happened to see a woman wearing her cape in the street. She stopped the woman, who told her that tho cape had been given to her by her sister, a Miss McCon■nochie, of AVellington. . Mrs. Dyer reported tho matter to the police, and Miss McConnocMe was interviewed. She made a statement, and she was to be called as a witness against Hardy. The accused Hardy was also • interviewed. He was asked if he would go to the Taranaki Street Police Station, but he refused. He was then informed that the police were inquiring into the theft of a cape. It was believed that he had given the cape to Jliss McConnochie. He was told that the police would like,an explanation of his conduct. He replied that anything he gave to Miss McConnochie he could produce receipts for. Hardy said that the police could "hoist" (charge) him and that he would make his explanation to a Magistrate if necessary. Hardy.was charged with the theft of the cape. As Mrs. Dyer was in Christchurch, a remand was obtained until March 16. On March 15 Hardy married Miss McConnochie, who thus became na longer a compellable witness. It was then decided to make a joint charge of theft against them both. After the joint charge had been preferred the police were unable to find Jlrs. Hardy until last month. AVhen they eventually came before the lower Court application was made for separate trials, and this was granted. The case against Mrs. Hardy was dismissed, and Hardy was convicted and sentenced to' three months' imprisonment. Evidence was called by Mr. JSyansScott. COUNSEL'S SUBMISSIONS. Jlr. T. P. McCarthy, who- appeared for Hardy, submitted that there was no evidence that Hardy had ever had the cape in his possession, and that a prima facie case had not been made out. Mr. Evans-Scott contended that if Hardy had not given the cape to Miss McConnochie ho would have said so. If Hardy's statement was considered in the way in which counsel submitted, it-should be considered that it amounted to an admission that he had given the cape to Miss McConnochie. It w_ts a peculiar thing for a man not to answer a statement such-"as that made by Miss McConnochie. His Honour: A man cannot be convicted simply because of a peculiarity. He must-be convicted upon evidence. He.must be convicted upon proof, and not upon suspicion. . ' His Honour said he was not prepared to hold that there.was any legal proof, that Hardy had given the cape to Miss McConnochie. . Mr. Evans-Scott: If your Honour is against hie as to what can be taken from that conversation, there is no use me taking the matter further. "MERE SUSPICION." His Honour: I undoubtedly am, Mr. Evans-Scott. Ido not for a moment say that this man did not steal that cape, but I do say that the-onus is upon the prosecution. . . . You have not proved to my mind that this man gave Miss McConnochie the cape, and if you have not proved that he gave her the cape you cannot say that you have traced the stolen property to his posses* sion. , Mr. Evans-Scott drew his Honour's attention to the fact that the accused had married the woman whose statement might have been used in evidence against him. .-"■ His Honour: I decline to convict any person upon what I regard as mere suspicion. A criminal offence must be proved, and this has not been proved. I am not concerned with a question as to whether or not he did steal the capp. lam concerned with regularity of the" conviction. I am concerned with the question as to whether or not the offence has been proved, and however suspicious I'may be I certainly do not intend to convict..-. It would be_ very improper if I did, unless the evidence was such as tp satisfy me that the man is guilty. The appeal was allowed and the conviction quashed. ■■ :