NOT PROVEN.

New Zealand Mail, Issue 1060, 23 June 1892, Page 31

NOT PROVEN.

The great blot of our criminal law is the want of power on the part of juries to bring in verdicts of “Not proven.” A long list of cases in British and colonial annals point conclusively to the superiority of the Scotch system, but the original want of the English system remains. In England and the colonies juries are, in other words, supposed by law to be infallible, and juries return the compliment by making an > normous margin in favour of all persons accused of capital crime 3, There can be no doubt

at all that had the criminal law been complete, after the Scotch fashion, the verdict in the Eketahuna ease would have been a verdict of “Not proven.” As 'he law is deficient, according to the English method, the verdict was a verdict of “Not guilty.” If a perfect mountain of facts is discovered at any time big enough to overwhelm the accused, they will nevertheless be as safe from justice as the corpses laid in their graves twenty years ago. The case was one of unusual difficulty, two juries having already failed to agree upon it. On the thiid occasion the Crown separated the prisoners, but made no variation in its theory and little addition to its evidence. The theory was homicide in a sudden quarrel, followed by the act of robbery, as evidenced by the rifled pockets ; and to support the theory there was a chain of circumstances. The defence had no theory at all, but simply contented itself with suggestions designed to show the weakness of the chain of circumstances supporting the Crown case. The rule in cases of circumstantial evidence requires the condition indispensable for a verdict of guilty to be that the guilt of the accused must be the only theory which will account for all the circumstances presented by the evidence. The Crown theory was, during one of the trials of this case, illustrated by the Judge thus : If two men enter a tunnel together, and only one comes out alive at the other end, the other’s dead body being found inside with evidences of murder and robbery, it will be a fair inference that the survivor of the two is the murderer. And it may be added, especially if the survivor, on getting home in the early hours, shows a rather wild anxiety to be relieved from his employment at once, with permission to get away from the neighbourhood. But if it can be shown that there is a doubt whether the two men did enter the tunnel together, then the case must appear weaker against the survivor. That doubt the defence managed to raise, for the evidence was not of the strongest. There was nothing to sustain the suggestion of suicide, but there was nothing on the other hard, apart from the rifled pockets, to preclude any belief as to its possibility. And as the evidence was doubtful as to the last niau seen with the dead man, theie is room for the thought that the presence of death does not always restrain the predatory instincts. That fact the history of all the battle fields of the world establishes conclusively. It is true that none of the people can be said to have been hardened by war experience, but it is also true that nearly everybody—deceased, accused, friends, fellow roysterers —nearly everybody was drunk, and in liquor people are not squeamish. The mere fact that suicide, followed by rapine by a half drunk sneak thief, was made to appear by a clever suggestion of the defence even remotely possible, was enough to prevent the theory of guilt from satisfactorily accounting for all the circumstances proved in evidence. In these cases the demonstration must be without a flaw, must leave no room for any shadow of a doubt; everything, must dovetail into the chain so that no room is left for suppositions. That is the main difficulty of circumstantial evidence. It would ahvays of course be better for a prisoner to produce another theory, which will account for every one of the circumstances. In that case be would remove every reproach from his moral character and obtain from the jury a verdict of acquittal, which every honest man could respect. What has happened is that the verdict of acquittal has been obtained by ' the less difficult process (less difficult in the case of guilt) of weakening the supports of the Crown’s theory. The accused leave the Court free from legal consequences, but with their moral character in dark shadow. They have not proved their innocence, the Crown has not proved their guilt. The moral of the story is that the law ought to provide for such cases by allowing juries to make exactly the light decision, viz , that neither party has proved his case, with the proper consequence that the matter is left open for further investigation.