DEFENCE OPENED

Evening Post, Volume CXXXI, Issue 113, 15 May 1941, Page 5

DEFENCE OPENED

TRIAL OF NEILING

THEORY ADVANCED

MEDICAL WITNESS

The theory that the deceased had suffered her injuries through a fall on the beach at Oriental .Bay, and medical evidence conflicting with that presented by the Crown, were features of the defence which was opened in the Supreme Court yesterday afternoon on . behalf of Leonard Neiling, a labourer, aged 29, charged with the murder of Mrs. Marjory Livingston Horton at Wellington on or about January 9, 1941. The case is being heard by the Chief Justice (Sir Michael Myers) and a jury of twelve. Mr. C. H. Weston. K.C., and Mr. W. R. Birks are conducting the case for the Crown, and the accused is represented by Mr. W. E. Leicester and Mr. T. P. McCarthy. Mr. Leicester opened his case with the statutory definitions of culpable homicide, and said that at no stage in the case was it encumbent upon the prisoner to establish his innocence The onus was on the Crown to prove guilt and that onus never shifted. The case could conveniently be approached from three stages. The first was the onus that was cast upon the Crown of establishing that the accused was the man who travelled with Mrs Horton and who accompanied her lo the place at Oriental Bay where she and the man got out. of the taxi and proceeded clown to the beach. The second stage was to prove that Neiling was also the man who remained with Mrs. Horton to the th^e when she was on the beach. The third stage was the stage to which the medical evidence had been entirely directed. Assuming that the accused was the man who had remained with Mrs. Horton while the injuries were sustained, the Crown had yet to prove to the satisfaction of the jury that he committed murder. The Crown, in his submission, must prove on the facts that the theory put forward for the prosecution was the only reasonable theory on which the jury should act. NO ONUS ON DEFENCE. The defence hoped to show that the Crown's theory fell very far short as being the only reasonable theory, and that the alternative was the more likely of the two. There was no onus upon the defence s to prove that it had the more likely theory, but only to show that it wa s a feasible theory Once the jury was. satisfied that the alternative theory was feasible, how could they say that the Crown had established its case beyond all reasonable doubt? The prosecution must establish the guilt of the accused, and there was no burden upon him to prove his innocence. Referring to the onus upon the Crown to establish that Neiling was the man who travelled from Lower Hutt to Oriental Bay with Mrs. Horton, Mr. Leicester said it. was sufficient for his purpose at the moment to say that there were disquieting features about the identification. ■So far as the second stage was concerned—the allegation that the accused was the man with Mrs. Horton when she received her injuries—there was no direct evidence as to how the injuries occurred. The Crown must satisfy the jury that Neiling remained with Mrs. Horton. The furthest*any .admission on his part went was that Detective McLennan stated that at one stage of the interview with the accused Neiling admitted that he had been N to the Carlton Hotel and had been in Oriental Bay that' night. When the prisoner was accosted in Auckland blood was found on his trousers pocket and his handkerchief, but the. evidence showed that that was capable of a quite innocent explanation. As for the blood on the front of his clothes, the defence would have something to say about the very curious fact that if the prisoner had held Mrs. Horton down there was no blood on the sleeves. ACCUSED ON LICENCE. The Crown had made a point of the fact that JNeiling had given some incorrect answers to Constable Needham at Auckland. The evidence for the defence would show that the accused, at the time, had been released on probationary licence from prison. Under ar ordinary licence a man had to report to a probation officer regularly, and was not entitled to leave a place without giving forty-eight hours' notice to the officer. A special provision of the accused's probationary licence was that he took out a prohibition order against himself. He had left Wellington without 48 hours' notice, and he had then been drinking in Auckland. Any incorrect statement was entirely apposite, because he knew the constable was looking for him for breach of probation. The evidence would show that it was not the act of a man afraid of implication in a charge of murder. On a charge of breach of probation there could be a heavy fine or imprisonment, and the obligation of having to serve the rest of the original sentence, and those facts would ■. account for any incorrect statements | by Neiling. It was suggested by the Crown that the accused had been running away from Wellington after the crime had been committed. So far from disappearing, he called on the probation officer the next day, went to Petone on a number of occasions, saw Mr. Quinn about a job, and spent some three or four days with a Mr. and Mrs. Quintal at Plimmerton before going to Palmerston North. LACK OF MOTIVE. Even assuming that the accused was established as the man who went to Oriental Bay with Mrs. Horton, the Crown had advanced no motive for the injuries caused to the deceased. It was clear that whatever way Mrs. Horton received the injuries, in the hardened state of her arteries the injuries were capable in themselves of producing shock which would set up a clot causing the thrombosis from which she died. The alternative theory was that the injuries were not caused by blows at all. Both Dr. Lynch and Dr. Mercer said that the blows which preceded the alleged throttling were sufficient in themselves to render the deceased unconscious, but in that case, what need was there for the accused to attempt to throttle her in order to carry out his purpose ? Two things which Van Crown must establish were that the death of Mrs. Horton was due to the voluntary acts of the accused, and that those acts were intentional and unprovoked. The theory put forward by the defence commenced from the fact that the deceased's dentures were found a few inches apart on the rough surface below the retaining wall. The evidence would be that it was practically impossible for a blow to dislodge the upper false teeth of any person, and that if they ha"d been dislodged they Would almost certainly have been broken. The theory continued on the line that at some stage of the evening the deceased, because of the quantity of liquor she had consumed during the preceding hours and which must have made her unsteady on her feet on the irregular surface, felt sick and put her teeth down at the foot of the wall. It was suggested that, finding herself unsteady on her feet, she went back towards the wall. She was wearing shoes with high heels, and the defence suggested that she fell, probably more than once, causing the injuries to her

head. " The disposition of the blood on the parapet indicated that she fell either against the parapet or rested with her head against it. The bloodstains on the accused's coat could be accounted for by his having got be;hind her and dragged her on to the I parapet. That would account also for the bruises on the body. If, as was alleged by the Crown, the deceased, a woman of slight build, was savagely assailed to the extent of the injuries caused, why was it that there were no marks on the back ol the head? asked Mr. Leicester. The knotted handkerchief was consistent with an attempt having been made to stop the flow of blood from her wounds. The absence of blood on the accused's coat sleeves was not consistent with the Crown's case. On the medical aspects of the case. Mr. Leicester said there was not one case known to medical science of partial asphyxia or compression of the carotid arteries setting up thrombosis. Evidence would be given that it was most unlikely that the injuries alone, if treated properly, would have resulted in death, and that the alleged throttling was most unlikely in the absence of finger marks on the throat. ACCUSED'S MOVEMENTS. Frances Rose Quintal, married woman, of Plimmerton, said she had known the accused for about four years. On Friday evening, January 10, the accused came to her house with her husband. 'Ac stayed there until the morning of January 12. He wanted to get work in Auckland and so get away from the men he had been associating with. Witness understood that when he left Plimmerton on the 12th the accused was going to Palmerston North. Robert Watt, probation officer at V. ellington, said that the accused was arrested in Auckland '-n January 23 on an information sworn out by witness for breach of his probation. The offence for which the accused had been imprisoned was breaking and entering. To Mr. Weston. witness said the records showed that the accused was released at Christchurch on January 7. Dr. A. E. Park said pathologists did j not have to deal with the living as patients—they dealt with specimens and tissues in the laboratory and in popt-mortem examinations. Mr. Leicester: Would you tell us if, in your opinion, the theory put for<ward by the Crown is the only one possible?—l think there is another possible explanation of the cause of the injuries. Are there any features of the case which you find difficult to reconcile with the Crown's theory?— There are seven features, some of them small, which in my mind, taken in the aggregate, throw some doubt on the Crown's theory. First, continued Dr. Park, there was] the position in which the dentures were found, and he thought the inference could be drawn that they were placed in that position. Second, there was the absence of bruises or signs of injury behind the head of the deceased, j Third, there was the finding of a knotted handkerchief, which suggested the possibility of its having been used to stop the flow of blood from the wound. Fourth, there was a mass of bloodstains on the edge of the parapet and another collection of bloodstains on the stones close to the foot of the parapet. They would suggest, that the deceased's head had rested in those positions for some little time to allow the blood to accumulate. Fifth, there was the absence of bloodstains. | on the sleeves particularly, and elsewhere on the trousers of the accused. He did not think it was likely for the accused to have struck Mrs. Horton or throttled her while she was bleeding from a wound or wounds without

getting blood elsewhere than in the positions described by Dr. Lynch. Six, there was the absence of abrasions anywhere on the deceased's head and face. He would expect that repeated blows with the first would show some evidence of an abrasion. The seventh feature was the manner in which the alleged throttling was done, so as to compress the carotid arteries without asphyxiating and killing the victim, and, in addition, the failure of the alleged throttling to leave finger-marks on the victim's throat.

Dr, Park said he thought one could give an alternative theory which might account for the injuries found on Mrs. Horton.

"If the woman felt sick," said Dr. Park, "removed her teeth, placing them alongside the parapet where they might easily be located in the dark, and then, in the course of her movements, owing to the combination of high heels, uneven surface, the dark, and alcohol, she stumbled and fell either once or more than once, she could cut her chin and her forehead. There are several places where that could have occurred. The subsequent bruising and swelling of the deceased's face and neck as the result of her injuries might account for the appearances found several hours later, and subsequently at the post-mortem.

"Assuming a fall, she may then have been dragged up and leaned against the parapet, thus, accounting for the blood found in this locality. Here an attempt might have been made to stanch the blood by means of the knotted handkerchief. Later she may have been dragged on to the parapet, possibly in a semi-conscious condition from shock and loss of blood, and was subsequently found in this position. The appearances suggest that intercourse occurred while she was semiconscious."

The cut on the forehead was most consistent with a fall, continued witness, and he thought one might say that the deep cut on the chin was more consistent with a fall than with a blow. The deceased had an extremely fragile jaw and the cut was two inches long. Cuts due to a blow with a fist were made by the splitting of the skin over a hard surface. In his opinion, Mrs. Horton's jaw would crumble up too easily to afford a sufficiently hard surface on which to split the skin to the extent of twc inches. He did not think the skin would split unless it encountered something very hard and somewhat sharp. On a fragile jaw one blow would tend to fracture the whole jaw.

An injury on, say, the calf of the leg might cause bruising on the ankle. From what he could judge of the postmortem report, the bruising on the deceased's face could be accounted for in that way. The deceased was a woman liable to cerebral thrombosis. Apart from any question of throttling, he thought that the injuries, plus the shock,, would definitely have predisposed the deceased to thrombosis. He was not satisfied from what he had heard of the case that there was throttling. Assuming, however, that there was throttling, he did not think that throttling by itself would bring on thrombosis. With throttling one would have expected to find fingermarks on the victim's throat.

Compression of the carotid arteries was difficult. He did «not think that in the present case the carotid arteries could have been compressed, nor that any such compression would lead to clotting causing thrombosis. Again, he did not think partial asphyxia could have rmich effect in causing thrombosis. •He could find no record of thrombosis having resulted from asphyxia or compression of the carotid arteries. Mrs. Horton's injuries were severe, but, in the absence of cerebral thrombosis, he did not think they would have been fatal.