SEVEN YEARS’ GAOL

Manawatu Standard, Volume LVI, Issue 59, 7 February 1936, Page 10

SEVEN YEARS’ GAOL

SENTENCE IMPOSED. CONSPIRACY IN ARSON. Sentence of seven years’ imprisonment with hard labour oil each of two charges, the terms to be concurrent, was passed by His Honour Mr Justice Blair in the Supreme Court at Palmerston North, yesterday afternoon, on, Douglas Henry Colin Baker, aged 50, a brewer, of Palmerston North, immediately after he had been found guilty on counts of conspiracy in arson, and of counselling and procuring arson through the destruction of the Makotuku Hotel by fire on May 8, 1933. “I cannot see a single redeeming feature about this case,” said His Honour in passing sentence. “It is most lamentable,’ and you are a very fortunate man, because there might have been a tragedy. There were people there, but you did not bother to find out how many. I think that this is a very, very shocking case indeed, because your part was much worse than the two men you employed. It is evident that you did it for a purely selfish purpose, and endangered life for the benefit of your own pocket.” CONCLUSION OF EVIDENCE.

The counts brought against accused were: (1) That, on or about May 8, 1933, and on divers dates prior thereto, at Makotuku and Palmerston North, he did conspire with Edwin Walter Barringer to commit arson; (2) that Barringer did commit arson by wilfully setting fire to the Makotuku Hotel, the property of Baker, and that Baker did counsel and procure Barringer to commit the said offence, thereby becoming a party thereto and guilty thereof. • Mr H. R. Cooper (Crown Solicitor) conducted the case for the prosecution , and Mr H. F. O’Leary, K.C., with him Mr T. M. N. Rodgers, appeared for accused. Evidence was given by xUY Young, insurance agent, Harold Mullaney, insurance manager, and George Guthrie Wilson, insurance and commission agent, all of Palmerston North relating to insurances. Detective Barling stated in evidence that, on December 4 last, he had interviewed accused relative to the fire and shown him two explanations given the police in July and August. Accused, in the first, had said he bought the hotel for £3OOO in 1928 or 1929, and sold it shortly afterwards tor £3600, but it came back on hiß hands. The last time he visited the premises before the fire was on April 26, 1933. He did not expect to receive any insurance, and he had suffered a dead loss. Accused, in the second statement had said he was at Fordell on May 7, and did not return to I almerston North until 1.30 a.m. on May 8. He did not receive word ot tne fire until between 3 p.m. and 4 p.m. thatlday, and went to Makotuku next day. Accused, in a third statement, made later, had stated that at tne time of the fire he did net know ot ins financial position, or the actual insurances held on the hotel. He had not seen the sale advertised by the mortgagee and had never spoken to the licensee, or- even joked with him about the fire which had put him (accused) out of pocket about £|oOHe did not know McGill, and had never commissioned Barringer or given him any money except tor tne purchase of goods. He did not know that Barringer knew McGill. Continuing, his evidence Detective Barling said he had difficulty in tracing a cheque for £7 alleged to have been signed by accused or stamped with the brewery stamp for Barrrnger. The latter gave an authority for the inspection of his bank account, but accused declined to act similarly until lie had seen Ins brother. Next day. the authority form was returned unsigned. . . . . Mr O’Leary (cross-examining), asked was it not a fact that a relative of witness worked in a rival brewery, and witness replied that that was so, but it bad never crossed his mind. Witness said that the pass-books of both the brewery and Douglas Baker had been brought to him later for inspection, it being stated that they were an exact copy of the bank s books. Witness inspected them, but could find no trace of a cheque for £7. He could have obtained an order under the Banking Act for the inspection of the accounts. Further cross-examining, Mr O Leary said that the Makotuku Hotel licensee at the time of tlie fire, Senk, had stated that after he had given his evidence in the Lower Court Detective Barling had reminded liim that he had made several omissions. Detective Barling said lio did not see Senk until the Lower Court hearing. He had compiled a statement of the facts to make sure Senk was telljng the truth so far as he knew it, and Senk had told him after the Court that he had not said as much as lie would like to have done, and had forgotten several points. Witness had told him to remember in the Supreme Court, as he was not going to “get the stick” for telling tlie Mr O’Leary: You reminded him that he had not come up to the mark 7 You refreshed his memory after Ins statements in the Lower Court ? Witness: I said ho would not get the stick for telling tlie truth. Mr O’Leary : Nobody is going to get the stick for telling the truth,_ but they will get it for not telling it on the first available- occasion. Continuing his cross-examination, Mr O’Leary said lie suggested that it liad been unfair to accused- not to explain in the Lower Court that his brother had brought the* pass-books to him (witness) for examination. Witness said it was not evidence. The Lower Court hearing was not tlie finish of the case. OTHER EVIDENCE.

Edwin Walter Barringer, electrician, 1 crave evidence that he had for some time known accused, who had mentioned that he would be pleased to get rid of the hotel, as it was a financial burden. Accused had made reference to one, McGill, asking witness to get in touch with him and inquire what lie would charge to burn the hotel. McGill wanted £ls in advance, but Baker gave witness £7, saying it was all be could afford then. This was by cheque, with the brewery stamp. McGill said he must have cash, and witness went back to Baker, who gave him the money. Later, witness met accused, who said, “those fellows had better hurry up and fire the hotel.” Shortly before the fire witness had driven accused to Makotuku for an interview with Senk. During the journey Baker said Senk owed him money, and the hotel would have to be burned if lie could not get some sort of a settlement. They went to Makotuku on a second occasion. This time they went upstairs to wash their hands. On May 7 witness accompanied McGill at night in a hired car to Makotuku. They had left Palmerston North at about 11 p.m. There was a brace and bit in the car and this witness handed to McGill, who went through the hotel gate. Witness took the car 500 yards away and waited. Ten minutes later McGill came running and they threw away bottles which had been used, 'and which McGill had brought back in a sack. Witness said, “Did you set it alight?” and McGill replied, “You will see in a minute.” They stopped on a rise for a drink, and witness saw a flame come out of a corner of the hotel, and iu a very short period

witness heard a voice call out “Fire.” They then returned home. Witness had pleaded guilty to his share in the offence and was now serving a sentence. The day after the fire witness had seen accused, who said: “I see they made a job at Makotuku. Who did it, McGill or the other follow?” Witness replied that it was McGill, and asked accused where he (accused) had been. Accused said he was “well away” between Wanganui and Patea. Later, accused, with witness, went to the scene of the fire to see the licensee, Senk, who seemed to be very angry. Returning to Palmerston North, accused said Senk would get the blame, as ho had previously been in a burned hotel. Witness received nothing for his share in the destruction of the hotel, and had no interest in it whatever. Some weeks after the fire Baker handed witness a 10s note or £1 note and said: “Give that to McGill,” asking for a receipt. Cross-examined, witness waid that it was McGill who actually fired the hotel, and up to the present no charge had been made against McGill in respect of the burning. Witness did some work for accused, for whicli he was paid, and when witness left for Hamilton they were on friendly terms. Subsequently there was trouble about a lathe witness had left stored at accused’s premises, and a summons was actually issued for the return of it. Mr O’Leary: You made a claim for damages but abandoned it, and the goods were returned? Witness: I abandoned tho claim for a reason. Witness said he liad been charged last year with the destruction of a motor-car by arson in Palmerston North six years ago, but this charge had been withdrawn. Mr O’Leary: Was the charge withdrawn before or after you gave evidence concerning the Makotuku Hotel fire?—l cannot say. Was any inducement held out to you to have the case withdrawn?—No. Did you trouble to find out why the case did not proceed against you ?—lt may not be correct, but I believe the owner was not in New Zealand.

Cross-examined regarding tho cheque for £7 allegedly received from accused, witness said he thought the cheque had been operated on, until he gave tlie matter further consideration. McGill had said •he would not take accused’s cheques. Mr O’Leary: That was because of the difficulty you and Detective Barling were in, racking your brains for an explanation why the cheque of £7 could not be traced? Witness said matter occurred three years ago. He was hazy with drink then, and had remembered, since he gave his evidence in the Lower Court, that he had received £7 in cash. Mr O’ Leary said he suggested that witness did not think of that until lie got into difficulty. " Witness: What difficulty. Mr O’Leary: You led the police to believe that the cheque was not used. There was no mention in the Lower Court six weeks ago about the cash. Is it because your recollection was at fault ?- —Yes.

Mr O’Leary: This was a vital thing, and yet no mention was made of it when the case was first heard in the Magistrate’s Court. Why?—Faulty memory. How many statements did you make to the police ? —One. Was there only one? —There was another at the beginning. Was that an untruthful one then? —No, but it was not quite accurate. And in that statement did yon say that Baker had nothing to do with it? —I cannot say. Was there anything like that?—l do not think that Baker was mentioned in it. This concluded tlie case for the Crown, and Mr O’Leary intimated that iro evidence would be called for the defence, but he would address the jury. Counsel for the Crown then addressed the jury. ADDRESS FOR DEFENCE.

Addressing the jury for the defence after the luncheon adjournment, Mr O’Leary said that, stripped of its legal phraseology, tlie indictment charged accused with arson, through counselling and procuring it, a crime which was fraught with very serious consequences. • The jury had to consider only evidence which was clear, reliable and trustworthy, and did not come from a polluted source. Evidence had been given by a mail who was not only an accomplice in arson, but who had shown other dishonest traits. The past good character of accused had to be taken into consideration. The law had always said it would be unsafe to convict a man on the evidence of an accomplice unless that was materially corroborated. It always insisted that a jury be warned of that danger. Firstly, the reason for that was that an accomplice was a criminal. Secondly, it was easy for him to fix responsibility on tlie wrong man by substituting the names of his associates. Thirdly, lie could recount a great deal of truthful matter, and then slip in a vital allegation. There was the element of hostility, and the hope of leniency through implicating someone else. Primarily, the Crown’s case was the evidence of Barringer, but were liis statements true in the vital parts? "inquiries in the direction of tracing a cheque for £7 allegedly paid by Baker for the commission of the crime had been unsuccessful. Counsel said lie had a complaint to make against the evidence ot Detective 'Barling ill the Lower Court. -It left the inference that Baker had something to hide through his brother refusing permission for the inspection of tlie firm’s bank account, because nothing was said about 'the pass-book being brought to him for examination. The detective should have been more candid. Had be been unable to attend the Supreme Court, his depositions in the Lower Court would have been admissible, and there would have been no opportunity of extracting vital information which placed a different complexion on the case. Barringer had abandoned his original story and inveiited a new one in order to get over the crucial difficulty which wrecked the Crown case.

“Why has McGill not been charged with arson in this case?” asked Mr O’Leary. Mr Cooper objected to this, stating that opposing counsel had no right to ask that, because he (Mr Cooper) could not give evidence in the case which he was prosecuting. Mr O’Leary should have asked Detective Barling that question. Mr O’Leary: I .am going to comment. I see no reason why— Mr Cooper: I can give you the reason why. k Mr O’Leary said that in addition- to Barringer’s evidence, the Crown had sought to show that accused was hard up and had a motive. If Barringer had told the truth, McGill should have been charged as well as Baker. Further, the evidence given by tlie licensee, Senk, liad been mild und harmless in the Lower Court, but after being reminded he had now-come forward with fresh information. There was nothing about the insurance policy transactions of accused, said Mr O’Leary, to suggest that he had acted improperly, fraudulently or dishonestly. Baker had never received one penny in cash out of the fire. His position was immeasurably worse; because ho was left with only the license, the section of land and a few outbuildings. He attempted to rebuild, failed and

lost the property ivhen the contractors and their workmen descended on it with their liens. JUDGE’S SUMMING UP. Summing up. His Honour said the case was peculiar in that, apart from broad principles, there was little law in it. It consisted entirely of facts and the inferences to be drawn from them. His Honour said he did not intend to draw contrasts between the facts, and if any were susceptible of two constructions, accused was entitled to tho benefit of the more favourable one.

Tho jury retired at 3.25 p.m. and returned at 4.45 p.m. with a verdict of guilty on both charges. “I should just like to say' that I agree with your verdict,” commented His Honour in discharging the jury. Pleading for leniency on behalf of accused, Mr Rodgers said that accused liad perhaps been unfortunate in that he liad been tried in bad company. His was an isolated case, and he had previously borne a good character. He was a muddler and more foolish than criminal. It was obvious that he had gained nothing out of the fire. His Honour: 1 think that he did. From his point of view it may have been bad arithmetic, and he did not get what lie expected, but lie certainly did better with the fire than without it. Mr Rodgers: He still owes the mortgagees something. ' His Honour : He owes them less than he otherwise did. Mr Rodgers said prisoner had not indicated any criminal inclinations. It was a reasonable assumption that he had probably been persuaded into the crime by other persons without a full realisation of what it involved. His Honour then passed sentence as stated.