JURY FAILS TO AGREE.

New Zealand Herald, Volume LVIII, Issue 17853, 6 August 1921, Page 9

JURY FAILS TO AGREE.

ONGAROTO MURDER TRIAL.

FINAL STAGES IN CASE.

ADDRESS FOR DEFENCE

A LENGTHY RETIREMENT. [BY TELEURATH. OWN" CORRESPONDENT.] HAMILTON. Friday. The retrial of Hakaraia Te Kahu, on a charge of murdering Patrick Richard Llliot at Ongaroto on East-er Sunday, was concluded hefore Mr. Justice Stringer m the Supreme Court to-day. After nearly five hours the jury announced that it could not agree upon a verdict, and was accordingly discharged. When the case wa= resumed this morning, Mr. Gillies, for the Crown, intimated that he did not propose to address the jury.

In opening for the defence, Mr. Hamp- ! son said that, in opening, Mr. Gillies. ! with his customary fairness, had asked ! them to make their minds a blank as to [ what they had read or heard before. '' Counsel said this was impossible, hut tie j did ask thrm to cast aside any precon sidered ideas, and to regard the accusal as an innocent man until the Cn.wn proved him otherwise. He knew po man as fair as Mr. Gillies, but in his opening the latter had said he was going *•• prove th.it Kahu's gun shot Elliot, that Elliot had a considerable' sum of money, and that Te Hiku arrived at the wha- ! just as Kahu left. Counsel said he sub- j mittcd, with the utmost confidence, that j the Crown had not proved these facts.

Continuing, he referred to the value - f circumstantial evidence, and said tin- ; strength of it depended upon the im- ' probability of any other explanation than that fact, which it -was intended to prove- j The jury had to consider whether the ' evidence was so strong that, there was ' no possible doubt of the accu?ed's guilt ■ Counsel asked : Was Elliot actually mar- ! dered? Suicide was out of the question, j but there was the possibility of dec-eased • having dropped his gun and it going off. j The doctors said this was possible, but , objected to the idea, on the ground that both barrels exploded. Counsel put it to j them, however, that the concussion from , one barrel alight explode the other. Another possibility was that the deceased's gun might have gone off when he was reaching behind for it. He did not say this happened, but there was the possibility of it, and they had to coq- I sider it. I Position (Of the Wound. Counsel commented on the position jf ; the wound. Most people would aim ht ! the head, and it was remarkable, that if j the shot was deliberately tired it should ' be fired as it was. Dealing with the find ' ing of the body, counsel commented upon I the fact that only one of three men who j found the body had been called. He sub- j mitted the evidence was not the best j available, and it was not proved that the hip pocket was inside out. There j was also the possibility of it being left | like that when the trousers were washed : With regard to the body being in the I water, counsel said that in cases of accident some men kept their heads, bat in : some cases men lost their heads. and ; there was the possibility of a man like accused pushing the body into the river after an accident had occurred. Counsel asked the jury not to review the evidence generally, but to sift it carefully before arriving at a decision. He submitted there was no proof thai deceased had a considerable sum of money in his possession. He was a decent steady man, who probablv spent as he earned. There was also the fact that he had owed one man money since Christmas This man worked with him, vet the Crown asked them to believe that a man with a considerable sum of money did not pay his mates for some months, there was no proof that the deceased was m possession of a considerable sum of money. The Bank Notes. Dealing with the fact that Kahu said nothing to Sarah Williams about Elliot counsel suggested Kahu took " his <nrl" home, and was thinking more about" her than anything else. Counsel suggested the possibility of a mistake being made in the taking of the numbers of the notes I paid to the deceased, and said no evidence had been given as to his move- ' mente from Saturday morning until he was seen on Sunday, and during that i time be might hav e done anything with his money. There was evidence that one of the deceased's notes was in the postmaster's hands on the Tuesday afternoon, but there was no evidence that this was the note that Kahu paid to the hawker on the Monday. Counsel urged that there was nothing in accused'* remark to Campbell Hamilton that " the police would not have known anything unless it had been for the bloodstains, and said it was a remark that anvbodv might make, and was no evidence" of "a guilty mind. With regard to the statement* taken from the accused by the police, counsel submitted that an interpreter should have been present in case the accused might not understand fully what was being saad. The " Two Up " School. Coming to the question of the "two up" school, counsel discredited the evidence of Norman, whom he said would say the first thing that came into his head without carefully considering his evidence and he asked the jury to carefully consider whether his evidence could be accepted. Counsel said there was no evidence that accused had a lot of money when he started to play. If he had lost he would not have been there long, but as he was there for some time the reasonable inference was that he was winning and therefore could be in possession of notes to change. With respect to the changing of the notes, counsel said a witness had said the accused took the £10 note from a bundle an inch thick. If he changed a £10 note it was to get smaller notes, yet what would he want them for i f he had a roll of high denominations, in which case it was certain he could not have got them from Elliot. Counsel sugge>!od the evidence regarding the cartridge shells was not conclusive. The Bloodstains. Coming to the evidence of the bacteriologist, counsel suggested that the Crown should have another bacteriologist to check the tests made, pointing as an example to a recent case where a finger print export was brought from Australia to check the New Zealand expert. With respect to the bloodstains on the trousers, from their position it was evident they would not have got there without staining the shirt. He asked- did accused destroy the shirt and leave the riding pants hanging up where everyone could see them? Turning to the manner of Elliot's death, counsel said it was possible for h;m to have gone out shooting early on the Mondav morning and to have met with an accident or to have met a fri<-nd. who may have given evidence before them, and for this friend to have lost his head when an accident occurred. He did r.nt say this happened, hut did say there was the possibility of such a happenincThere appeared to be an entire absence j of motive, and Kahu had been very frank over the whole matter. Counsel j attacked the. methods adopted by the i police in preparing the case, and said [ ' thev had not put forward all the evidence | that was available. He contended the police fastened on to one man and held on to him. In conclusion he reminded the jury of their responsibility in the case, and said it was for them to say if the Crown had given them such conclusive evidence as would justify a verdict of guiltv. Counsel's address lasted two

His Honor commenced to sum ap at 12.20 p.m. He said that if the jury could conceive any other reasonable hypothesis other than that of accused's guilt they must adopt it. As to whether deceased was murdered, the Judge said it was fow them to consider counsel's snggestaans, To him it appeared that suicide and accident could be eliminated, and that the deceased was murdered. If they were satisfied upon that point thsy had to ask themselves if Elliot returned to his whare on the Sunday night. This was important, because if he did not, not only would it be suspicious, but it would mean that accused made a false statement that tbev returned safely. No one had said definitely that Elliot did not return, but le Hiku had found no one in the whares at 6 p.m. on Sunday, and the $ est momins at 6 a.m. Te Hiku fou D d them in just the same way. Kahu said he left than at o a.m., leaving Elliot in bed, and the question was whether it was possible for oe, cvised to have got away in the hour before Te Hiku arrived. Probability of Bobbery. ~ Thp / :OWn P«* the suggestion to them that deceased d:d not return, and put r\r'" ,is , ; :h " r circumstance? before them The Crown's suggested ?n \Z °\ r ;: : ' nf ""- v , wa -° co " fi rmed bv the alt.mugh it was for them to decide, -it to him that must, havo been the mo,r, Owing to the swollen condition of the hodv His Honor said it woii.d lave b /; en impossible for anyone to be so stupid or so wicked as to trv and interfere with the clothing. With regard to the notes. His H, nor s=id that unless a mistake was made, which wa* possible but unlikely, two notes paid to Elliot on tie Fridav were in circulation at MoVai on il,e Mondav. Elliot might have got rid of them on the Saturday or Sunday norning, hut there was a reasonable possibility that he retained them. Accused was in Mokai early <-.n the Monday mon-.inc. ar.d apparently had a fair sum of money in his possession. Op. 1.-.s own showing he had tliree £5 notes in his possession. After reviewing the evidence, he pointed out that the deceased was shot with a gun which undoubtedly had certain peculiarities, the same as "that of the accused. With regard to Norman's evidence, the Judge said the only thing of value in his evidence was that he said he changed a £10 note for the accused, and this was corroborated by two others. None of this money had actually been identified, but was apparently put- forward to show that the accused" had more money on Monday than he had on Friday. Importance of Bloodstains. If the jury was satisfied that the biood on the upper portion of the riding pants was human blood it was very important. because accused had accounted for it bv saying it was pig blood. Pig blood was present on the lower portion of the pants, whirh had probably got there, as accused suggested, but accused had not accounted for the human blood. His Honor said he did not regard as important the conversation between accused and Hamilton, but said it seemed curious that Te Hiku turned up on the Monday expecting to work, whereas Kahu did not do so. It struck him as rather remarkable that the accused shonld say that he fired his gun. on March 20, yet he did not clean it until mid-day of Easter Sunday. According to accused be did not fire it on that Sunday, yet when examined by the expert it showed signs of fouling. In conclusion, His Honor said he recognised the serious position in which the jury was placed, li they could account for the deceased's death* in some other way than that suggested by the Crown they could adopt it. If not, then there was no alternative but to return a verdict irrespective of the consequences. The jury retired for lunch at 1.50 p.m., : and at 3.50 p.m. retired to consider their | verdict. ' Questions from Jury. After being oat four and a-hali hours J the jury returned and the foreman asked i the Judge what view they should take j m regard Lo the money in accused's ; possession on the Friday night and about j which no- evidence had been given by the defence. The Judge said it was open for the defence to have brought evidence in regard to accused's money transaction. They had, however, thoug'ht fit not to call any evidence and the jury would have to draw such conclusions "as they thought proper. The foreman said another point the*v wished to know was whether a third pair of nding pants was found in the whare, as j accused in Ins statement had said he did j not wear the bloodstained trousers on the I Sunday and he was wearing another pair i when he returned to Ongaroto on the Tues- : day. At the Judge's suggestion Constable Wright was recalled. He said there was a pair of dungarees in the whare. but no other riding pants, except those with the bloodstains. His Honor pointed out that the witness Mrs. Jones had said accused was wearing riding pants on the Sunday. He told the jury that as they had been locked up over four hours he could discharge them, but if there was a reasonable hope of them agreeing they could r.'tire again. If they could, it was desirable, in the interests of everyone, that they should arrive at a verdict, although he did not suggest they should give way on conscientious grounds. No Hope of Agreement. The jury retired again and returned 20 minntes later, and the foreman said there was no hope of reaching an agreement. The jury was discharged and granted exemption from service for two vears. The Crown Prosecutor said there were new regulations which he wished to peruse and he would make an application to the i Judge to-morrow.