SENTENCE OF DEATH

New Zealand Herald, Volume LVIII, Issue 17889, 17 September 1921, Page 8

SENTENCE OF DEATH

. '• ; : ■•-'-.=- ! siy-.-:;t- t » ! .Vsas r *'--.'::r.':""''. '■' .-'■"■'■ •' -■•■:•"- OBTG-ABOTO CRIME. THIRD TRSAI OF IE KAHU. HO EVIDENCE FOE DEFENCE COUNSEL'S LONG ADDRESS. SUGGESTION OF APPEAL. [BY TELEGRAPH.—OWN ooaiußSpajroENT.3

HAMILTON. Friday. After three trials, Hakaraia to Kahu was to-day found guilty of murdering Patrick Richard Elliot, at Ongaroto, on Easter Sunday, and was sentenced to death by Mr. Justice Stringer. After sentence had been passed, Mr. Hampson, counsel for the accused, stated that he proposed to go to the Court of Appeal on the point as to whether or not the Judge at a previous trial had contravened the law in his summing up. Throughout the day the prisoner had sat quite unconcerned, but after sentence had been pronounced he collapsed, and had to be halfcarried from the dock. Tbe Solicitor-General., Mr, W. C. McGregor, K.C., in his address to the jury, said he did not propose to exercise his right to reply after counsel for the defence. There were two main points for the jury to consider: Was Elliot murdered, and did Kahu murder him There was no doubt as to the former, and he thought they should return an affirmative answer to the second. The defence had called no evidence, relying upon two statements which, to his mind, helped to support, (.he case for the Crown. Hie submitted th.it the substantial facts were incontrovertible—that Kaha shot Elliot and put his body in the river. What other inference could the jury draw, and what alternative did the defence ofhj?—None.

Oasa fox the Prosecution. | Counsel contended that suicide was out of the question, and accident was excluded by accused's own statement. Death was proved to have been instantaneous, and a dead man could not have dragged himself and his gun into the river. By saying -there was no accident, that both re-1 turned "to their whares, and that he did lit fire a shot that day, accused conclusively closed the door of escape from the tacts. Counsel quoted authorities on circumstantial evidence, and said that in tome cases it was more convincing than ; direct evidence. In the present case he likened the evidence to a rope composed of many strands, if one of which broke the others remained to connect prisoner with .the crime. What were these strands ? There were three main branches, the obvious facte, the conclusions and infer* ences that might reasonably be drawn .'rom the facta, and, lastly, the statements. He suggested that in the aggregate these pointed conclusive!' to Kahu having murdered Elliot. After dealing with the evidence, counsel suctioned the offer the Crown had made, to have any blood tests made for tht. defence at the expanse of the Grown, and said no request was made for tins to be done.

. Question of Motive. As to .motive, counsel said it was apparently twofold—love of motley and love of a. woman. Crimes veto often commit'. ted -with very littlamotive, but it they ./were "satisfied that there was a motive, : : they need not feoubl© about its adequacy. With regard to accused's statements, conn- .' sal urged that they were inconsistent and untruthful, and aatead why this- should he, unless accused -was trying to cover up his tracks. After pointing out that many d the witnesses were neighbours of tie accused, and Maoris, ha asked the jury to imagine a change - of circumstances. "Supposing Elliot . was a relative of yours/' he asked, " would yon, after hearing the evidence, have any doubt as to who killed him? - Having heard the evidence against Katra, -would say at you go shooting with him with money in your pocket*!" Gbun* sal read Mr. Justice Gfcapman's remarks in the Gram case, in which Hie Honor said: ""She duty you have to perform is not the duty that often falto to a jury of dealing with a mass of obnflicfeing evidence, butt, to decide whether the inference from ail the evidence points conclusively to the guilt of the accused, or'whether a true analysis of that evidence leaves.a real doubt.. If there is a serious and grave doubt the accused must get the benefit of that,doubt. If the case is made out- in such a way that there is only one inference, and thai inference is that it points to the guilt of the accused, than you have to give effect to that by your verdict."

Facta and Inferences. Counsel said he wished to adopt those words as bis own, and to ask them to follow them in this caaa. Did not the iacta and inferences point to only one man as the murderer? If they were satisfied, they wot bound by'their oaths and duty to their counter? to find him guilty on the evidence, regardless of the consequences. Mr. McGregor spoke for one hour and a-quarter. Mr. • Hampson said he hao been amazed and horrified to hear the SolicitorGeneral trying to inflame their minds by asking them to regard Elliot in the light of a relative, when they should regard him as a fellow man, who had offered his life in Flanders for the sake of humanity. They could not have an open mind, but they could cast aside any opinions they had, and he asked them to do so. He submitted that circumstantial evidence should be examined .with grave care. It had been laid down that the Crown had to provide the best evidence available, and that before circumstantial evidence could be accepted, it had to be so strong that there was no other reasonable explanation of the hypothesis it was sought to prove. Mr. McGregor had compared circumstantial evidence to a rope. He submitted that they should test every strand and see whether the rope wae strong enough to hang a man. ii there was the least doubt they should not be satisfied. Counsel proceeded to sift the evidence piece by piece. With respect to the hip pocket being inside out, he submitted that if it was out when the body was recovered, it was no proof that it was like that whin lie body was put into the river; neither was it any proof of robbery. It was not an uncommon thing for nwn like this to go round with a pocket hanging outside. The Crown had not proved that Elliot had money. If he had, why did ho keep his mate, waiting so long for a- small amount that he owed? Elliot did not receive much in wages, and probably spent it as it was earned. Kahu owned frnir horses, and had interests in valuable timber blocks, yet the Crown asked them Id say that Kahu murdered Elliot for hip wages, when he could have sold a horse if he had wanted money. Referring to the new evidence that Kahu said he would grt even with Elliot, counsel said it ivas giotejque to suggest that Kahu .-lii'i'ld live beside Elliot for. six months and then murder him because he had limit en him for £2. Counsel attacked the police for not providing an interpreter when the statement was taken from accused.

Referring to the two-up school, counsel said that at, two-up, by a. doubling sysU'ni, it. was easy to win or lose a large amount in a shoj time. As a reliable witness saw act used with a single £1 at the start of the school it was quite feasible tliaf he won the money that other witnesses saw later. Reviewing the evidence at great length, counsel attacked that given by Mr, Hazard and by the new witness Keepa Hamilton, which, he submitted, was unreliable. Assuming that the h!ood<-ts.ius on the trousers were human Wood, counsel asked them to consider the various ways in which human Mood could have got them If it had come there as suggested by the

Crown why were the trousers so slightly: ?siaS^ejd^:wheiii.thei : evidence - flowed thai deceased must have - been- bleeding* profusely ■■?■%, : ; It was not. for him, 'continued counsel, to ,pot r forward conclusive proof of inno- [ cence; Ifc- was for the Crown to teove j accused's guilt. '■- Elliot might have ! gone out earjy on the Monday morning and been aho& by accident. He did not, say XaA was the case, but while there was that possibility, the jury could not disregard it. Counsel referred to the ordeals which accused had had to undergo m connection with- the two previous trials, and said his. hair was now full of white hairs. The Bed Indians had brought torture to a fine art, but he knew of no greater refinement of torture than to put accused into the witness-box. Bather than let him face that ordeal counsel said he would cut off his own right han£, The address lasted 2| hours. The Judge's Summing Up. The Judge commenced to com up at 2 p.m. He said what t&tey had to coneider was whether Kahu killed Elliot, und they should not allow any extraneous matters to influence them. Counsel for the defence had performed a roost difficult task very ably, an,'d they should give every reasonable weight, to his arguments. There was little doubt that Elliot was murdered. It was almost absurd to suggest suicide as his gun and body would have been found on the spot. It would also have required elaborate care to inflict such & wound. The same would apply to an accident, as the gun and body would also have bean found. Personally he could not see how a man could drag a Era behind him and cause such a wound, ooking at the case in a reasonable way, there seemed little doubt that Elliot was murdered. If they were satisfied thstt he was murdered they had to ask who murdered him. It seamed .clear that Elliot was shot with a double-barrelled gun and thrown into the river.

Indications of Robbery. Robbery was the apparent motive, and it would be rather far-fetched to suggestthat it was because of the incident ! n connection with the sale of the gun. There was evidence that Elliot had money on the Saturday, and he might have been carrying other money, and accused might have been aware of it. At any rate there were indications that he was robbed, and if thoy found that the pocket was pulled out it would help to confirm the theory of jobbery. It was clear that Elliot was murdered on Sunday or Monday. If killed on the Sutday it. would point to accused, the last one seen with him. as the one responsible. Accused said they returned home on the Sunday, and if this was not true it showed a very ominous fight on the case. If it was" "a case of accident or suicide accused must have known. Ti* Hikn had said the whares ware closed on the Sundaj evening and early on Monday found the whares still closed. It was for them to decide whether Elliot got up early and went away. If it was true that accused was seen on the Sunday - night this was contrary to accused's story that on returning home he went straight to bed. It did not matter much which way he was going. The important .point was that he was there alone. Kahu said he left Elliot in bed at five o'clock on Monday morning. If that was true, by seven o'clock he must have got up, had breakfast, and, unobserved, gone back over the same ground be hod been with Kahu, and had met a man armed with a double-barrelled mm who shot him with No. 3 cartridges. That was the only other alternative, and it was for them to decide whether that was a reasonable explanation. The theory of the Crown was that the shots on Sunday afternoon were those which killed Elliot. There was a strong suspicion against accused, but it was for them to decide if there was proof against' accused.

Attitude of Accused. Sis Honor reviewed the evidence at some length with respect to the blood on the trousers. He said that Mr. ArmUage was highly qualified, and the method of the testing was now recognised to be beyond all possible doubt. There could be no question of Mr. Armitage's standing, and when he said he had no doubt they were human bloodstains they would be wrong to doubt him; in fact, wrong if they did not accept him. If it was human blood, accused accounted for it in a false way, indicating that he had a reason for concealing fee stains. Accused's conduct m some way indicated guilt, and was not that of an innocent man who took an interest in a man he had been on friendly terms with. It was also rather remarkable that accused should not show concern at the loss of his friend. Kami had said he looked for Elliot on the way to Mokai, but Sarah, his companion, said that he did not mention Elliot to her. With respect to fee money, the Judge said there could be no question that the £5 notes paid to Elliot on Saturday got into circulation at Mokai on Monday, or that accused was "flashing" notes about at Mokai when, according to his own version, ho had spent nearly all his money. It was also significant that, as a result of the two-ap transactions, Elliot's two notes got into circulation. If they though* Elliot was robbed the robbery must have put the notes into circulation at Mokai. They should examine these matters wife care and also accused's statements.

Ho Alternative Explanation. In conclusion, ho asked them to consider the relevant facta, and ask themselves i* the only reasonable inference to be drawn from them was that Kahu killed Elliot. If they found that was so they should return a verdict of guilty. If they could find any other alternative—and he could see none, although it was for them to decidethen they should adopt it and acquit accused. The' jury retired at 3.30 p.m. and returned at 6.1S p.m., with a verdict of guilty. To the sheriffs question if accused had anything to say why sentenco of death should not be pronounced, Mr. Hampson said he wished to move to apply to the Appeal Court under section 442, on the point that the Judge's direction to the jury at the previous trial was a contravention of section 421 in that comment was made on the fact that accused did not gire evidence. The Judge said that whatever happened at the previous trial had nothing to do with the present. Mr. Hampson said he had considered the matter, and was of opinion that it did. His Honor said he could not consider the matter then, and, addressing the prisoner, who for the first time appeared to show some concern, said that after a careful trial, conducted most fairly by the officers of the Crown, and in which he had had the assistance of an able counsel, he 1 had been found guilty of; a foul and treacherous murder of a fellow workman and friend, the sole motive apparently being to possess himself of a few paltry pounds which apparently he knew he had. The evidence was circumstantial, but in the opinion of the jury it was sufficiently strong to convince them of his guilt. He had nothing else to say but to pronounce the sentence of death.

Sentence Pronounced. Adjusting the black cap and speaking with strong emotion, the Judge pronounced the usual sentence of death. Kahu said nothing, and was assisted from the dock, where he gave way to hysterical weeping. The Judge thanked the jury for their verdict, with which he said he quite agreed, and excused them from service for two years. Discussion then arose as to the point raised by Mr. Harnpson. The SolicitorGeneral said he quite agreed with the Judge that what happened at the previous trial had nothing to do with the present trial. Mr. Haoiipson's only course was to apply to the Court of Appeal. The Judge said he felt he could not. agree to Mr. HampsonV request, but would facilitate him in bringing the mat ter before the Appeal Court. Mr. Harnpson agreed to do this and the Court adjourned.