THE ONGAROTO MURDER

Otago Witness, Issue 3524, 27 September 1921, Page 47

THE ONGAROTO MURDER

LEAVE TO APPEAL REFUSED. WELLINGTON, September 24. The Court cf Appeal considered a motion for leave to appeal against the conviction for murder and the sentence of death passed on Hakaraia Te Kahu, who was found guilty on his third trial of the murder of Richard LUiott on March 27 at Ongaroto. At the secern! trial the jury returned to court and asked the presiding judge Mr Justice Stringer) for his advice on the view tliey should take if they considered that evidence had not been brought forward by the defence in support of counsel’s suggestions when, in tlieir opinion, such evidence should have been brought forward. His Honor replied that it was open to the defence to bring forward this evidence, and the jury must draw their own conclusions

from this. The jury disagreed, and when the application was made for a third trial Mr Hampson, for the accused, submitted that the judge’s answer to the jury was a misdirection under section 423 of the Crimes Act, and he asked his Honor to bring the question before the Court of Appeal. The third trial was, however, ordered, and the accused was found guilty and sentenced to death. ITis Honor refused to reserve the question raise by Mr Hampson, who then went to the Court of Appeal. Mr Hampson appeared for the condemned man and Mr W. C. MacGregor, K.C. Solicitor-general), for the Crown.

Mr Hampson, in support of the application, contended that if there had been a misdirection on the second trial three questions arose: (1) What was the effect of such misdirection on the second jury. (2) What rights accrued to the accused as tile result of such misdirection? (3) What was the effect, of such misdirection on the third jury? He submitted that- a question of law had arisen, and that even it the presiding judge had disagreed with the proposition put forward by counsel, such question should have been reserved if it was not fanciful, absurd, or frivolous. The judge had not reserved the question, because he was of opinion that nothing- which occurred at the second trial had anything to do with what happened at the. third trial. Mr Hampson maintained that there had been a misdirection at the second trial. The answer by the judge to the jury’s question should have been : “The jury has evidence before it, and on that evidence it must come to a conclusion.” The judge’s misdirection had gone before the public through the press, and must have affected the third trial. Mr Justice Sim: “What question of law was raised on the third trial which should have been reserved?”

Mr Hampson: “It was the matter raised in the second trial which affected the third.” Mr Justice Sim: “It is a most fantastic question of law.”

After consideration the court gave its written judgment as follows: —“We are satisfied that the answer given by the learned judge at the second trial did not amount to comment within the meaning of section 243 of the Crimes Act. The question submitted by the jury does not refer specifically to evidence by the accused himself, but to the evidence of any persons who might be called to support suggestions made by counsel as to money in the possession of accused. The answer given by the learned judge deals with that subject, and carefully avoids any reference to any evidence which might have been given tiy the prisoner himself. The comment prohibited is specific reference to the fact that, an accused has not given evidence. It is desirable to add that improper comment on a trial which results, i-n disagreement cannot be treated as raising a question of law on a subsequent trial. The application is therefore dismissed.”