NEW TRIAL ORDERED

Gisborne Times, Volume LXXII, Issue 11451, 27 February 1931, Page 2

NEW TRIAL ORDERED

ALLEGED 'PERJURY BY ERIC . iFrancis mack ay. w, - JURiY' FAIL TO AGREE;. After a rctiroinent) of. ;Over four hours ' yesterday, to ' consider their verdict in a charge of perjury against Krib ’ Friiheis Alackay, the jury -at tlie Supremo Court failed to agree, and' oil the'application of tlkrCrown Prosecutor, Air; F.; AY: Nolan, a now trial was ordered. by ..Jlis Honor Mr Justice AtcGregor for the npxt sitting of-the Supreme Court In Gisborne. f • (' The clffirge arps e out of evidence given Alaekay at "an inyu'est' in 'connection. 'with the death of TliOpms. Martin Cotcoran , who was 'killed' when a motor van overturned on tho Makaraka road, on October 27 last, Alackay was also in' the van, but escaped ’with slight -injuries. At tlie inquest, Alackay stated' that Corcoran had. been driving tlie van., but the. coroner held that Alackay had been;' driving. • ; ,> tv: Air’ F. W. Nolan prosecuted ancl. Mr. L. T. Burnard, instructed by Air S. A r , Beaufoy, appeared for accused, who pleaded not guilty. ■ The following jury had been empanelled: Archibald Campbell (foreAmit), AAllliam J, Cd’x, Arthur Hamilton. William H. Simmonds, Edward McFlynn, Stewart Brown, Frederick B. Bousfiold, Arthur Aderoft, Louis H, Bissendcn, Archibald Murray, Thomas Hardy, and George. R. AleKeuzie. . His Honor, in summing up, enlightened the jury as to what constituted’ 'pci-jury uiide-r the'' law Of New Zealand. .The law, he said, dc>- ; scribed perjury as 1 an assertion made by a witness, such assertion being known to be false and being intended to mislead. It was, however, not sufficient to have merely oath against oath, .in the present case there, was, in His Honor’s opinion, ■sufficient corroborative evidence. Tno onus of proof rested on tlie Crown. The point was, was.Corcoran driving .or not? U'iie essential point uas that tlie accused swore before the Coroner that Corcoran was driving. Tho defence ivus Corcoran was driving: and, in any ovent, Maekay was so confused, -after the accident that he did not know what lie was saying. It seemed to Ilis Honor that a great deal of the evidence was not directed precisely "to the point at issue. It consisted of what took place after the accident, but 'tho most material point was: What took place before tlie, accident; who was actually driving!-' There was the usual conflict of evidence in such, cases. A number of people’ get a hurried impression and each in good faith formed mental pictures of what each saw, and the result is confusion. The point is, AYliat is the direct evidence to show who was driving? On that point ,however, there was very little direct evidence—only that given by Air. Sharp and Plainclothes Constable King. His Honor then reviewed the evidence ef each of these witnesses, ft was contended that Alackay was too upset after the accident to make a statement, but,' unfortunately for him, he <nd make a statement, and a clear statement.. Then there was the evidence of Mr. 1 Stubbs, to whom, ill reply to fi question after the' accident, accused said be was coming from Make raka. Accused, therefore, was seep by an independent witness after the accident, asked a simple (mention, and answered it. He therefore evident!f- could . reason fully and correctly. Along with the evidence, the jury should consider the probabilities in flic case. They were asked to believe that, on bis return from Makaraka, Corcoran was driving. AYas it. probable that Alackay who was in the service of tlie Power Board would allow Corcoran to drive a Power Board lorry back? Jt was for tlie jury to consider whether it was not- highly improbable? Again, the jury had seen the lorry. Oho point was that all the serious damage was on the passenger side, and that cor-

responded with the evidence. Was it not probable that the, man who received the’injuries was the man u’ the passenger seat;' Was it. not highly probably that Mack ay, after recovering somewhat from the shock and before actually realising what had happened, blurted out tlxe truth P Ke would not have had time to think of the consequences civil or criminal. Was it not likely that, while the whole thing was fresh in his mind, hti should toil the truth and' then, Inter, realising his position. lie* thought it would be better to say that Corcoran- was driving? They should concentrate on who was driving before the accident. Did the evidence satisfy them who was driving? The • question before the jury was one of pure fact. There, were three views the jury had to consider —(1) They must he convinced that Mackay was driving the lorry, if so they must find him guilty; (2) They must be convinced that Corcoran was driving the lorry; if so, they must iind .Mackay not guilty, (3) After considering the evidence, if they had any reasonable doubt as to who drove the lorry they must find Mackay not guilty, .as the Crown must prove its ease beyond doubt. %

The* jury retired at 10.50 and. at 12.5 p.m., sent .'in a request that they desired to view the lorry again. At <i.ob p.m;, the jury returned and the foreman, anno mice l that they Had failed to agree. The Crown Prosecutor applied lota new trial at the next- sitting of tiie Supreme Court. His Honor granted the application. On the application of Mr. Ruruurd, the accused was released on .bis former bail. ......