A GRAVE CHARGE

Otago Daily Times, Issue 24968, 15 July 1942, Page 4

A GRAVE CHARGE

ELECTRO-THERAPEUTIST ON TRIAL ADMISSIBILITY OF EVIDENCE The trial of Henri Arthur Hirt, aged 48, a Swiss, on a charge of having on April 21 unlawfully used an instrument with intent to procure a miscarriage was commenced in the Supreme Court yester"day before his Honor Mr Justice Kennedy. The evidence of five witnesses was' heard, the proceedings being protracted by legal argument on the admissibility of certain evidence given by a young woman who died in the Dunedin Hospital. Her evidence was taken at a special court held at her bedside. Mr C. J. L. White, instructed by Messrs Baylee and Brunton, appeared for the accused, and the prosecution was conducted by the Crown Prosecutor, Mr F. B. Adams. Case for the Crown In his summary of the charge, Mr Adams said that the crime with which the accused stood charged was undoubtedly a very serious one. A woman had in fact, died, and medical evidence would be led to show that her death was the consequence of the unlawful use of an instrument by the accused. It would in the circumstances have been [ open to the Crown to have charged with murder or, in the alternative, manslaughter: but ideas and court practice had changed, and the Crown had not found it incumbent on it to arraign him on either of these charges. Mr Adams stressed that "such an operation, performed by an inexperienced person, endangered the life of the prospective mother as well as prevented the birth of a human being. In a double sense, therefore, there was the guilt of homicide on a convicted person. The first witness was Thomas. Pierard, a surveyor in the employ of the Public Works Department, who produced a plan of the accused's rooms in the Regent , Buildings, Lower Octagon. 1 The mother of the deceased young woman gave evidence that for a week from April 21, her daughter had been in pain and confined to bed. Witness went on to describe a certain happening during this period, and told how, on April 27, she had taken her daughter to Hirt s rooms. On the following day, as her daughter was still in pain, witness communicated with Hirt, who advised her to get in touch with Dr Monheimer. Witness did so, and Dr Monheimer diagnosed the young woman's trouble as peritonitis, and arranged for her admission to the Agister of the deceased recalled having visited the latter on April 24, at her mother's home, where she saw a certain instrument similar to one produced in court. On April 27 she saw 1 Hirt, and on her telling him that her sister was in pain, he told her to bring her to his rooms, where he would treat her with a machine, which would allay the pain. The deceased was taken to Hirt's rooms by her mother. , , The evidence of Dr B. Monheimer, who, on account of illness, was unable to be present in court, was taken on deposition. In this, he stated that he had visited the deceased's residence on April 28, ana found her suffering from what he took to be appendicitis and slight peritonitis. The deceased's mother then told him that her daughter had had a miscarriage, and on examining her from this point of view, he ordered her removal to Hospital. Witness admitted that he knew Hirst, and had visited his rooms, where, so far as he knew, the accused practised as an electrical therapeutist. He had no knowledge that the woman had attended and had been a patient of Hirt. He did not handle any of Hirt's patients. Detective J. C. Russell gave evidence of having, with Detective Sergeant T. Y. Hall, arrested .the accused, and said that when taken in charge Hirt denied all knowledge of the woman concerned. A search of the accused's rooms disclosed the exhibits produced in court. The Accused's home at Tomahawk was also searched, but nothing relevant to the charge was found there. Deposition Challenged

At this stage, Mr White raised a question regarding the admissibility of a deposition made by the deceased prior to her death. Mr White asked that the question whether this evidence should be admitted should be heard in the absence of the jury, but Mr Adams objected to this course, holding- that the jury was entitled to hear- all matters relevant to the charge unless they might create some unfair prejudice to the accused. No harm whatever could be done, Mr Adams submitted, in taking before the jury evidence bearing on the relevancy of other evidence. Mr White said that his Honor and the jury had separate judicial functions and it was well that these functions should be kept in watertight compartments. There were two separate sets of facts to be considered, and unless they were adjudicated separately confusion must arise. His Honor ruled that the question of admissibility was one for the judge, dependent on certain facts, and the judge himself should adjudicate on such facts and determine them. He proposed to take evidence as to the admissibility of other evidence, and the matter was one that fell to him alone to decide. The jury then retired, and his Honor heard lengthy legal argument on the question.

In support of his. submission against the admissibility of the deceased's evidence, Mr White called George Tyrrell Baylee, solicitor for the accused, who said he had been advised about 5.15 on the evening of May 7 that Hirt had been arrested. He met the accused at the detective office, but the latter could give no information on which to cross-examine, until he had seen the witness and found out who she was. At 7 o'clock, Mr Baylee continued, he went to the Hospital, where a room had been arranged for the holding of a special court. He went on to enumerate those present in the room, in -which, he said, conditions speedily became very unpleasant. The proceedings appeared to have an air of urgency. At one stage, the young woman, just before she was asked to identify the accused, said: "I do not want to say any more," but Detective Sergeant Hall, drawing attention to two doctors, assured her that she would be all right. He found. Mr Baylee said, that if he had wished to cross-examine the witness properly he would have required at least an hour to prepare his questions, and if he had required to check and examine the accused's movements on certain days and at certain times, he would have had to seek an adjournment until at least the next day. He had no material on which to cross-examine.

Cross-examined by Mr Adams. Mr Baylee admitted that there was no failure on the part of the police to give him any information lie might have desired. At tin's stage the hearing was adjourned until 10 o'clock this morning.