BAYLY TRIAL

Otago Daily Times, Issue 22295, 22 June 1934, Page 10

BAYLY TRIAL

pR NORTHCROFT'S ADDRESS KEEN PUBLIC INTEREST vMEDICAL EVIDENCE ASSAILED CASE FOR DEFENCE CONCLUDED (Pek United Press Association.} AUCKLAND, June 21. , After speaking for three days and a-half, Mr Northcroft concluded his address to the jury on behalf of the * defence in the Bayly murder case shortly after 4.30 this afternoon. During the whole period he relied on brief notes only divided under various heads, his actual address being mainly extempore. To-day counsel referred to the fragments of clothing found at Bayly's, then turning to the manner in which Mrs Lakey had met her death. After criticising the Crown for not performing blood group tests, he traversed the conversations between Bayly and the police and the explanations made by Bayly, which he declared had not been contradicted by any evidence. The jury will spend all to-morrow_ at Ruawaro inspecting the properties. When Mr Northcroft asked if counsel could accompany them, his Honor said that the comments by counsel might lead to a new trial, and he filled that the jury should he accompanied by the police only. Hia Honor will commence to sum up at 9 o'clock, oh Saturday morning. , There was again a large attendance or vibe" public, who followed Mr Northcroft point by point with the keenest 'when he resumed his address. Counsel continued to deal with various points relating to the appearance of the bones included in the exhibits. He said -he would suggest that the bones were not broken up by burning, but were deliberately' broken up to provide evidence for the police. He then showed the jury an exhibit which, he declared.showed "none of the fragility to be expected when bones became broken of themselves after burning. He suggested that it had been \broken : by being pounded on a clay surface. '■'• ■.:'"', ~ • "Like this exhibit, many of the exhibits, when examined critically, with an .open mind, show characteristics such as £that," he continued. "That bone has "not been broken at Bayly's by Bayly be- " cause, in the police account, the bones Wwere broken on a concrete floor. Had hthe police fulfilled their duties thoroughly, they would have examined the earth on the bone,: analysed it, and found =, where it came from." •*• Counsel next showed the jury another Sbone, said to be from the shin. That v'bone had been, smashed before it was put i-'ih the fire. " Look at the firm edges," rhe said:. Other exhibits were also strongly "suggestive of a miscellaneous collection of jrbones,. including the skull, having been 'burnt and,scattered about Bayly's. Apart 'from very, few, such as the arm bones, i; they were boneg which could have belonged to different bodies, irrespective of , age or sex. There was nothing to show a that the arm and other bones were from ~ the same person who. owned the skull. -fSdme may have belonged. to a bi« man, '"'some to a small man. The skull might even be a woman's. The suggestion that there were no duplicates meant nothing, as, apart from the skull, there were only three or four. fragments of bones identified definitely as liuman. ,It was, extra-s-ordinary" that the bones' which would be cvmost protected, and would be destroyed ',.,' last, had not been found, while the more ."exposed bones, such as the skull, the <; elbow, and the' heel, survived. The charred "bubbly" matter was so .indiej- ';.- criminately disposed about the bones as '; to suggest that it came from fuel rather t than from flesh on bones, as it was found iKwhere it should not be foundj and was .'■missing where, it was'expected to be seem. Counsel then dealt with factors which the Crown claimed connected Lakey with the bones.- What was there to prevent

Bayly having been given the wick material for a cigarette lighter by Mrs Lakey ...when they were still friendly? There was " nothing to justify the view that the lighter was not Bayly's own; 1 the evi''idencethat this lighter was Lakey's had .. been extraordinarily,. weak. \ ■ V All the witnesses, had :_aid, that Lakey's .ihair was auburn, going grey. The tuft •-produced was brown; there was nothing v _>.'suggest auburn about it. • At .counsel's request the- jury ; handled \ the tuft individually, each examining it closely. After reminding 'the. jury of the comparison with Mrs Bayly's hair made by Mr- Leary, Mr ' Ndrthcroft said that had the hair been torn from Lakey's head : .roots would be! expected-to be found in

'conjunction' with it. The intense heat in the drum would shrivel the hair up if it s had been through the fire described by ' the Crown, which said, the tuft had been to such heat as.to destroy the of blood tests for congealed 5 matter,. It should'have been possible for ;.the Crown to produce Lakey's hair, as } three brushes: were found . at the house. |; However, the court had been offered no, 'conclusions as to what had been found when the brushes were inspected. The . hair in the iuft had been cut, not pulled out. It might well be Mrs Bayly's. There was not a scrap of evidence on which the Crown could rely to show that the. hair was from Lakey's body, he contended.

Mr Northcroft said there was no evidence that Lakey's watch was missing or '' that he woce ,it that day. Stevens had ;. said that Lakey's watch was identifiable by acratchings inside. In the case proiduced there were no marks visible to the ■i. naked eye.

;. The jury closely inspected portion ot ,/the watch case. "See if you can see J- marks with or without a glass," invited counsel, who, in reply to his Honor, said Vthe portion was the only part of the case recovered. The watch was not of an' uncommon type; indeed, six had been sold at Huntly, while many may have been sold at Hamilton and Auckland. There -i, might be many eueh watches in the disIrtrict, and one might just as easily have ■•■* been owned by Bayly or Lakey. Had ' Bayly wished to dispose of the watch he could have thrown it in the lake; if he -fe had wanted to conceal its identity he '■* could have crushed it with an,axe. Ho V one but a lunatic could believe that it was treated in this manner to conceal its '•: identity. The class of working trousers ?' worn by Bayly had the same type of button as was attached to the Palmer nap ""■ trousers worn by Lakey, and to suggest that the fragments of cloth represented portion of Lakey's clothing was unfair and unjustified. Old clothes burnt as ' refuse in a .bonfire would give the same type of fragments. Counsel recalled, the Cnppen case, where a portion of cloth recognisable as - his pyjamas sheeted the crime home to . him.. In that case the Crown did not > merely say, " There is a piece of pyjama ' cloth." ' They took it a step further and i proved its definite character. The Crown . in the present case had not connected the ■ fragments in any way with Lakey. Ihe - ■ gumboots worn by Lakey, black uppers .' with white soles, were of a type cotn- •;. monly used in the district. Bayly himself wore such boots. Here, again, there ■ was nothing to connect the fragments with ■ . Lakey's boots. There was nothing ot identification at all. - Counsel then reverted to the legal ; authority previously quoted to show that , it was improper to convict unless there was indisputable proof that the person alleged to have been murdered had been -murdered. i "Each and every one of you must be •satisfied, if you find my client guilty, that in six or twelve months Lakey does not turn up alive, or bis body be discovered in circumstances not associating " \ Baylv with his disappearance/ continued ' . Mr Northcroft, who then turned to the manner of Mrs Lakey's death. >Dr■ fcrtfmour, in his first report, had said her . death was due to asphyxia. It was not until he came to this court that ur , Waddell eaid she died of drowning. ; Her death may have arisen from drown-, • jng, coma supervening on a blow, or strangulation. The real question was: Did she get a blow which knocked her out. and then, in a. state of coma, in which ca.se there was no '■' murder; Or did she receive a blow which I Tendered her unconscious, and wasi she ' then placed in) the water to drown? "I put it to you that. Mrs Lakey has never been proved to have drowned declared counsel, who then reviewed the , medical evidenc*. "I iuvite you to re-

gard with a good deal of suspicion the evidence given by Dr Gilmour on '"that point." Dr Gilmour had said that if she had been lying on land he would not have said she had died from drowning. He was assuming, therefore, that, because she was found in water, she must have drowned. ~ , . . After quoting a work on medical Ju"sprudence from which Dr Gilmour bad dissented, counsel said that in view of this hi« evidence must be regarded with further suspicion. Dr M'Farlane had said that death was not due to drowning. He was the first doctor to see Mrs Lakey, and to perform a post-mortem. If the jury was not satisfied that Mrs Lakey was drowned there was nothing to justify the belief that she was murderod by Bayly or anyone else. The jury must be satisfied that it was criminal, not accidental. If a person saw Mrs Lakey lying there, and, believing her dead, placed her in the water, that was not murder. , Mr Northcroft described the manner of applying_ the. precipitin test for human blood. °Dr Gilmour had said he had not cheeked the anti-serum used, later saying that control tests had been made with sheep and pigs, and (he thought) rabbit blood. No control tests had been made in regard to horse, cow, hare, or pukeko blood. Dr Gilmour had then sheltered himself by saying that because the serum came from a well-known house it must be all right. However reputable a firm might be, there was possibility of human error. No witness was entitled to say blood was human unless he had tested the anti-serum used with all other types of blood. The Crown had removed every particle of bloodstains from Bayly's trousers, leaving none with which the defence could check the tests. Counsel next discussed the blood-group test. All human beings fell into one of four groups. If the blood fpund on Bayly's knife, sledge, and trousers had been group tested, and it was found to have been not blood from the accused, his wife, or his children, that would have been a point against the accused, while if the blood in Lakey's yard was found to be in a similar group, the Crown case would have been strengthened. Dr Gilmour had said there was not sufficient blood to perform the tests, but he might not have been skilful enough to apply the tests. There was no question that tests could be done with the most minute stains. Had Dr Gilmour left available to, the defence some portion of the stains, then it would have been open for the defence to call "persons who could do it, or send the stains to Sydney or some other centre where there were pathologists sufficiently skilful to do it. The defence then might have had an opportunity of declaring that the stains cm Bayly's trousers wer e his own, definitely, not Lakey's or Mrs Lakey's. On resumption after the luncheon adjournment, Mr Northcroft said he would deal with certain point* showing Bayly's innocence, although it was no part of the defence's duty to establish his innocence. The first point was the matter of the blood on Bayly's clothes. Had Bayly had human blood on his trousers he would have been in the utmost terror, he continued. If Bayly could have allowed such incriminating material'to remaip on his trousers it would have been amazing. Bayly had visited Auckland, and on his return when the police executed a search warrant the trousers had not been touched. In regard to the cut in the separator room he .• had brushes, rags, and other materials to remove, any traces of blood had he so desired. The most significant point indicating Bayly's innocence was the shovel which stood in the cowshed with, according to.the Crown, obvious traces left on it. The reason it had obvious. traces was because of its innocent use at the fire to heat water to scald a pig. ■■,,.... , There could be a group of people at Lakey's, there could be most desperate, happenings at Lakey's before Bayly would know anything about it, continued counsel. The accused had milked his cows regularly that week-end, and obtained proper returns of cream. If he had been engaged in a desperate enterprise and had taken the body to his cowshed he would never have got his cows in to milk them. Stevens had seen Lakey at 6.30 at a time when, according to Herbert, Bayly was actually engaged burning the body at his cowshed. "There, as everywhere else on a proper examination, the Crown's case is entirely untenable," he declared. Bayly had allowed the police to take the boards' they believed'to be incriminating,, but which proved his innocence. When the accused objected to the police taking another board he offered the proper objection that if tihey were taken there would be no sledge left. When the police returned later with a search warrant the front board of the sledge was still in the same condition. . ■. ' , , , ' ."At all points Bayly's conduct was: manifestly that of an.innocent, mind,'and; not a guilty mind," submitted counsel, who said that when Bayly had spoken to the police about draining the dip he had pointed out the definite danger to «tock. but after he knew the police were viewing the dip with suspicion he had done nothing in the way of removing the material later found there. This was one of the most significant points in the accused's favour. • At no point in the case had there been the slightest explanation why it wpuld profit Bayly to remove his ammunition and then declare that it had been stolen. It might have been to the advantage of some other person to remove the ammunition. The police.had made no inquiries on those lines. • Counsel said he would then tr,ace Bayly s alleged movements after 6.30, when Lakey was last seen alive. It was alleged that Bayly had been able to move the cream cans at Lakey's gate, shave the.timber, rig the wheels to take the body and move them back under the wattle tree, and mine the body to his cowshed by the sledge: Then a fire had to be lit and the . body incinerated. That was not a task which could be started and left. "Do you believe that the man dare leave the incriminating and shocking task of burning a body before it was completely destroyed?" proceeded Mr Northcroft. ■Then when the ashes cooled they had to be distributed and the disturbance an the garden covered up. Next Bayly had to cut the drum and clean the cowshed. This was what the Crown alleged that Bayly had done between the time he left Calvert's at 9 o'clock the following morning when the police telephoned him. Counsel contended that if there was old manure in the sack in the drum during the innocent fire Bayly described to the police, that would account for the minute fragments of bonedust in the lotfer portion of the drum. Had the bonedust been not merely in the bottom, but on the top lip, if the drum had been cut, as alleged by the Crown, that dust would have been dislodged by the vibration in the cutting. No such dust had been found in the upper portion, bearing out the accused s statement that he used the lower portion of the drum on a separate occasion. Counsel then dealt with the conversations between Bayly and the police officers and the explanations and statements lie had made to the detectives, declaring that the accused had been the object oi suspicions in the district on which the Crown now invited the jury to convict him- At the time the letter to his wife was written the police had taken not only the oil drum, but the bench, brushes, rags, and ropes covered with pigs blood. If Bayly had not suffered a breakdown m those circumstances it would be amazing, declared counsel, who referred to cases where innocent persons through fear had broken down. . .

Counsel again asked the jury whether it was not probable if Bayly had a guilty knowledge of incriminating material on his property, and knowing he was the object of suspicion, he would not have removed it on the occasion when he came to Auckland. Had he been guilty would he have retained the cartridge case as the Crown alleged? Again the accused could have placed the incriminating evidence on some other persons property to divert suspicion.

Mr Northcroft said he wished next to draw the jury's attention to the explanation the accused had given the police ot his movements that week-end. . I challenge the Crown to advance a single circumstance to show in any item that Bayly was not telling the truth. He declared that there was not a scrap of evideuce of any sort which disproved this statement. When the sledge marks were found the accused made, a further statement in which he said he had driven to the fence to inspect a . telephone post. "In those two statements you have the accused's evidence as to what occurred. There is nothing in any statement by Bayly, either verbal or written, which the Crown can say is false," declared counsel. In the course of numerous provocative conversations with, the police who hoped he would trap himself, in not so much as a single one did Bayly make a statement that was proved to be untrue. On the subject of motive there could be no two' views. There was no allegation of a motive against Bayly who, when he found he could not continue using the common outlet amicably with Lakey went to the expensive course of obtain-

ing a different route. Was it reasonable, to suppose that after spending a quiet Sunday afternoon with his friend Calvert Bayly suddenly went berserk, rode to Lakey's, and behaved like a demon. There was no evidence that Bayly was abnormal in any way. . There was no motive shown, and the crime could not have happened without 6ome horrible motive. There was no evidence that Bayly had ever been at Lakey's at all. _ The knife marks which had>been dramatically, saved till the end of the Crown's case were a complete fiasco and proved that Bayly a knife had nothing to do with them. There was no evidence that the accused saw Mrs Lakey that day, and that the marks on her face were received in circumstances amounting to murder. Ihe Crown had said that Lakey had been shot by Bayly and in proof of that they produced two rifles, two cartridge cases, and a shotgun, all of which were placed before the jury. The Crown had not attempted to show how their mystifying muddle of rifles and shotgun had anything to do with the crime. The Crown had claimed that the body had been conveyed on wheels to the fence and then lifted over —a superhuman task, as near an impossibility as it could be, and which could not be performed without disturbing and staining the grass with blood, of which there was not a trace. In the same way the Crown was in difficulties in reconstructing the crime at Lakey's. It was at a loss what theory to adopt in regard to the happenings at Baylys. There had been no proof that the burning of a human body could be performed, as the experiments with sheep were not comparable. " Can you conceive anyone taking the risk of transferring a body from Lakey's to Bayly's, as they say the accused did, on the off chance of being able to burn it before a hue and cry was raised? " asked Mr Northcroft. The mere presence of the guns and bones at Bayly's place proved nothing. There was nothing else offered by *he Crown against the accused beyond finding these on his property. The defence had shown how a third person not only could but must have been at Lakey's that Sunday afternoon, where an altercation might have occurred in a number of ways, with the result that Lakey or the o.ther person received a bullet, causing, perhaps, death. In those circumstances, the charge of murder would not be against that person who, fearing he would not be believed although perfectly innocent, would go the length of disposing of the remains as it was alleged Bayly,did. In no reconstruction of a fracas at Lakey's could Bayly be the third person, as he could not be there, nor could he find the ammunition or other articles in a house to which he had not been' a visitor for 12 months. "Lakey's death has not been proved," declared counsel. "These remains are just as consistent with the burning of a Maori skull, an old set of bones with ialsc teeth, which had been placed to set a false train away from the wrong-doer or some person afraid of being accused of wrong-doing." The Crown had to prove that Bayly was at Lakey's, that he assailed Mrs Lakey and destroyed her under criminal circumstances.. In regard to Lakey, the Crown had to prove that Lakey had been killed, to prove that he had lost his life in a criminal proceeding, and then go further and show that Bayly was responsible. In conclusion, counsel stressed the individual responsibility on the jury in finding a verdict on the evidence offered. The ease must go far beyond the realms of suspicion. - After .Mr Northcroft had concluded, his .Honor informed the jury that they would be taken to Ruawaro to-morrow. The foreman of. the. jury stated that they wished to make a second visit to the locality. The court then adjourned till Saturday morning.