FRESH TRIALS SOUGHT

Evening Star, Issue 19351, 10 September 1926, Page 5

FRESH TRIALS SOUGHT

CONVICTION OF POLIAIHH AMD HARMS ARGUMENT BEFORE JUDGE Sitting in Chambers this morning. His Honor Mr Justice Sim heard an application for fresh trials for Sidney Harris and George M‘Kay Polwarth, who were convicted at the May sessions on charges of robbery with violence and tlio theft of a cash box from a corporation bus. The ground of the application was that the verdicts were against the weight of evidence. Mr C. J. L. White appeared in support of the motion. Mr F. B. Adams (Crown Prosecutor) appeared to oppose the motion. Mr White said the motion was brought under section 44G of the Crimes Act. The application arose out of the prosecution by the Crown against the two accused at the May sittings of the Supremo Court. There were throe m-. dictmonts against Harris _ and two against Polwarth. On one indictment Harris was acquitted, but on the other two Harris and Polwarth were jointly convicted. One of these alleged offences W:ts in respect of robbery of a man named Ramsay, and the other in respect of the alleged theft of a cash box from a City Corporation bus. Learned counsel went on to quote cases to show that there had been no unreasonable delay in hrnging the case for a retrial. The real point at issue on the question of delay was whether the CroWn would bo prejudiced by such delay. There was nothing in the present case to show that it would be. His Honor: Nothing to show that it would not be. Mr White went on to say that appeals to-the Court of Appeal in civil actions could bo brought within foul months. In both of the present cases applications had been made to the Minister of Justice, and the present proceedings were launched lour days after the receipt of the letter from the Minister in the matter. He contended that the position was that the judge had simply to decide whether the case had some merit or whether it was frivolous. Mr White was proceeding to make reference to His Honor’s summing up in the cases in the .Supremo Court, but His Honor asked counsel not to touch that aspect of the matter. There were only two facts that coukl connect the two accused with the robbery case, continued Mr White. _ These were that they were in the neighborhood shortly after the commission of liie crime and the identification by Ramsay for what it was worth. There Were six men concerned in the robbery. At th o Terminus Hotel shortly afterwards there were only three men—liairis, Polwarth, and another. The licensee said that other men had been about, but ho did not know if they had been with the accused. When the constable came along there wore only three men there. That would seem to indicate that there were only three men m the party with the two accused. Learned counsel submitted that there was nothing suspicious in the lact that the accused were found outside the terminus Hotel. , , ~ . His Honor: There is the fact that they were in the neighborhood almost immediately after the robbery. Mr White: They gave a reason lor being there. His Honor: They did not give any reason. Mr White said the licensee gave a reason for their being there. _ Ho said they were endeavoring to obtain liquor. Learned counsel went on to say that apparently the three men were sober, and yet they remained in the locality when they knew Ramsay would make some complaint to the police. In respect of identification, it was submitted that, having regard to the presumption of innocence, up jury could find tin) accused guilty. There was no proot beyond all reasonable doubt, and than was required by law. Ramsay was not able to identify the men when ho was taken past the Terminus Hotel hv the constable, who had no trouble m identifying Harris. Yet live days later Ramsay identified Polwarth at the telegraph Office as one of the men who had' robbed him. Later he recognised Polwarth and Harris in the police yard. His Honor pointed out that at Ino Terminus Hotel Ramsay only had an opportunity of identifying Harris. J-O could not see Polwarth’s face. Mr White submitted that there was not sufficient evidence to rebut the presumption of innocence or to show that the case had been proved beyond all. reasonable doubt. The evidence ot identification was shockingly weak. With regard to the cash box case, Mr White said it depended solely on circumstantial evidence, and he submitted it was the practice ol the courU to grant a retrial in such cases. Mr Adams: The case was decided on direct evidence. They were seen cornmi Ring the crime. , hits Honor: They were seen in ho bus near where the money was, Jhe Crown did not show that someone else had not been there before them. The case rested on the evidence ot the hoys. When the boys arrivd the bus was there and the driver was gone, so unit it was possible for someone to have stolen the money beiore the accused came along. His Honor asked if the accused wished to apply for a retrial in tins case if it were not granted in the otner. If they did get a rehearing in the cash box case, they would still Jiave to (serve the three years on the other. Mr White replied that the accused wished a retrial in tins case, even if they did not get it in the other. Mr White wont on to quote contradictions m the evidence of the tno boys. The evidence of the hoys, h« said, was an amassing mass of contra dictions. H was difficult to say ;f any wei'dit at all .should he attached to it. He contended that the notions ul both men were consistent with innocence. Jf they were guilty, why did they stay there and dally about ? The constable said that Polwarth was cirrymg a parcel, and ho understood it to he a teddy bear, as he folk it. His Honor: The cash box was teinuj in the stream.

Mr Adams; Yes, in tbc bed of the Leith. Mr While referred fo the money tl at was found on Harris, and said it did not correspond with what was taken from the cash box. The only real suspicion against the accused was that they gave wrong names to the constable. Apparently they were trying to get drink, for they were seen c-ut-side an hotel. That was probably tho real reason for their being there In view of the extraordinary nature of the evidence ho did not think either application could be said to he frivolous. Mr Adams submitted that the rpicstion of whether the applications uiro frivolous did not matter very much, lie contended that the applications had to bo considered on the ground of whether there was any reasonable ai suable ground for appeal. In both c,,mv; lie submitted there was no such reasonable ground. In the roobery charge the evidence of the frown was unconlradicted. Thor" wa< no .--in of evidence af all. The case was one in which the material bciore. the jury justified tho verdict. His. Honor: ft was a question ol whether the jury believed Ramsay's evidence. If they believed Ramsay's evidence, there was no doubt they were right in convicting. Mr Adams: la view of that, your