FORMAL OBJECTIONS

New Zealand Times, Volume L, Issue 11522, 18 May 1923, Page 9

FORMAL OBJECTIONS

AGAINST NEW EVIDENCE JUDGE RULES FOR THE CROWN. On resuming yesterday morning the Crown Prosecutor intimated that it was his intention to tender evidence with reference to three other children which had been given into Cooper’s charge, particularly regarding the two other' bodies discovered. He was aware that counsel for the defence had entered a formal objection to the admissibility of this evidence. THE DEAN CASE. That evidence was already on the depositions, commented Mr Treadwell, who stated that evidence of similar facts was not admissible when a corpus delicti was not established. Mention was made of the famous Dean case, counsel emphasising the fact that in all cases decided up to the present a corpus delicti had to be established without question. It was quite possible, taking the medical evidence into consideration, that the child found in tins case was not that of McLeod. There had been no evidence that the child of McLeod was dead or had been murdered. His Honour remarked that in an Australian case mentioned by counsel the body had been burned. The corpus delicti did not mean the body, but it meant the facts of the crime. He added that lie was not going to interfere with facts. Mr Treadwell: Facte raise presumptions 1 His Honour: I don’t know whether facts do raise presumptions. Counsel submitted at length that there must bo sufficient evidence before the jury to convict the prisoners before other evidence could be called. Before the evidence of system had been given in the Dean case, he observed, it was held that the case against the accused had been established beyond doubt. Mr Wilford, on behalf of Mrs Cooper, supported the remarks of oounsel tor the male accused. He also offered a strong objection. “SHAM AND A FRAUD.” The Crown Pfosecutor in th* course of his reply contended that the prosecution bad’ a right to adduce this evidence. On the face of the authorities quoted, the evidence was quite admissible. He submitted that there had been no bona fide intent on the part of the Coopers that they were going to have McLeod’s child adopted; it was all “a sham and a fraud.” The death of this infant was not accidental. As a third ground, he alleged that both the Coopers had murdered the infant. ■ “I have no doubt as to my duty to admit this evidence,” declared Hib Honour, who said that he would not go into the details of the case. That would be done at a later stage. “It is quite obvious to my mind,” he said, “that all the issues, or sub-issues, will have to be placed before “the jury. . . . I could not possibly ignore the case and aay that this evidence should not be before the jury.” TO GO BEFORE JURY. Interesting reference was made by the judge to the oelebrated Australian case of Makin, and the New Zealand case of Minnie Dean, both of which ho substantially believed, were the same as the present case. The Makin case had finally been taken to the Privy Council. In this case the man and wife had taken the child to be nursed, and its body was later found in their garden. The court admitted evidence of system. It was exactly the same course permitted in the Dean case, though the body, had been positively identified ; but that fact was not essential. Tiie jury had to take into consideration all the evidence and the whole of the facts of the case. “Tho case of Minnie Dean was in the same class,” observed His Honour. “'Phis is not a case in which I can exclude all the evidence.” Mr Treadwell questioned His Honour with reference to reserving the question far the Court of Appeal. Mr Justice Chapman: That is a matter to be decided later.