NEW TRIAL ORDERED.

Hawera Star, Volume XLVII, 5 October 1928, Page 5

NEW TRIAL ORDERED.

Lr.CML.ON Or APPEAL COURT. CALLING OF WITNESSES DEEMED IRREUU-EAk. Telegraph—Frcsa Association.) WELLINGTON, Oct. 4. The Court ot Appeal was engaged this afternoon in hearing argument on the case of the King v. xvo~ert lVicKon/vey, stated by ,-\rr. Justice Suncu unuer the provisions Oi tne Crimea Act. The court consisted of judges iteid, ostler, McGregor, and jolair. lor the Crown Mr. A. C. Fair appeared, and for the accused Mr. -H. u.i Cooper. The main facts are that the accused was arraigned at the last criminal sittings of tne Supreme Court at Palmerston North upon an indictment that he did on June 30, indectnly assault a female. The substance of the case for t.ie Crown was that accused was the stepfather of the girl, and she was under, the age of 16 years, that the accused committed an indecent act us tic prised to by the girl, and tiiat consent, if it did exist, which the Crown denied, was no defence. Apart from the prcoi that the girl was under the age of i. 6 years, it was open to the jury to rintl on the e»idence either that the girl did or did not consent to the acts o: indecency. The girl stated in evidence that she was 15 years of age, and tne birth certificate was produced by the Crown. This was the only evidence' adduced as to her age. Mr. Cooper, on behalf of the accused, had submitted that there was no case to go to the jury, as there was no evidence to connect the girl with the girl. named in the birth certificate. In summing up to the jury Mr. Justice Smith had directed that the evidence was suilieient to show that the girl was under j 16 years of age. Accused wu§ found guilty by the jury, and when he appeared for sentence his counsel asked that a case be prepared by the presiding judge for the opinion of the Court ot Appeal, in particular dealing with the question or the girl’s age. A further question also raised in the case stated is whether the evidence o. Captain Thorne, a Salvation Army oft icer who visited MeKonkey while the latter was awaiting trial, should have been admitted. Captain Thorne was called by the police, but was objected to by counsel for the de.ence, as communications were made to him in his professional character. . Mr. Cooper, in opening the case be-| fore the Court ot Appeal on behalf of the accused, outlined the facts j which he had submitted to the jury in the court below. He submitted that the production of a birth certificate was not sufficient evidence to establish the age of such person, unless independent evidence were adduced identifying the girl in court with the one re.erred to in the birth certificate No such iurther evidence was brought, but his Honour considered that the production of a birth certificate was sufficient anti directed the jury to that effect. He also asked whether Mr. Justice Smith acted rightly in law in allowing the Crown to call Captain Thorne after evidence for the defence had been called. He contended that Captain Thorne’s evidence was inadmissible, first because it was irrelevant, as it could in no way affect the guilt of the accused. It was inadmissible secondly because it was only evidence to contradict -the statement made by witnesses under cross-examination. Further, Captain Thorne went there as a religions adviser, and any statement made to a religious adviser under such circumstances must be considered as confession and as such was inadmissible.

Mr. Fair, for the Crown,,contended that the question of age did not arise in this case, for the question of consent was not raised for the defence. Evidence as to age was only required to rebut the defence of consent, and it would only be required if consent was alleged by the defence. Such a defence must be affirmative and could not be presumed. ‘ Accused lmd .made a. complete denial of the offence, and therefore could not raise the alternative defence of consent. Air. Fair then proceeded to deal with the calling of Captain Thorne, asserting that the calling was correct in law, but he intimated that a new trial seemed to be justifiable to him.

Their Honours were unanimous in deciding that a new trial should be allowed, on the grounds that the calling of Captain Thorne was clearly irregular.