COOPER MURDER TRIAL.

Otago Witness, Issue 3611, 29 May 1923, Page 7

COOPER MURDER TRIAL.

COOPER FOUND GUILTY. airs cooper acquitted. MALE ACCUSED SENTENCED T’O DEATH. WELLINGTON, May 21. Public interest in the Cooper murder trial has evidently in no respect diminished, judging by the crowded condition of the court when the hearing of the Crown evidence was resumed this morning. Acting-detective Al'Lennan deposed as to finding the body of a ch Id buried at New lands amongst material which bore evidence of having been through fire. Some burnt forks and spooks were found in the grave, and similar burnt forks and spoons were also found under the build.ng known as the “crib.” The witness also gave evidence as to finding a third body on Cooper’s section. When asked for an explanation as to the presence of these bodies on their property, the male accused den ed all knowledge of them, and Mrs Cooper said she could only refer the police to her solicitor. Similar evidence was given by Senior Detective Lewis, Detective Nuttal, and Acting-detective Jarrald. Samuel Goulder (carpenter) deposed to making an arrangement with Cooper to purchase a section at Nevvlands from him. They had a diff. renee of opinion over it, but witness denied ever saying he would "get even” with Cooper, and lie never buried any bodies on Cooper’s property. He had babies of his own, and thought too much of them for anything of that kind. He Still had some of Cooper’s tools in his possession, and would hold them until the deposit p .l id on the section was returned. Constable O’Donnell, stationed at Johnsonviile, deposed to being present when an altercation took place between Cooper and Goulder. At no time did he hoar Goulder threaten to “get even” with Cooper. This witness also gave evidence as to two fires at Cooper's. His house was burned down on September 50, 1921, and his store on May 8, 1522. Mary Condrick deposed to going out to Cooper's place at Now lands. She was then pregnant. Subsequently she was taken to Linden Hospital, and there her child was born. To Mr Vv ilford: She knew of no reason why she should have been “dumped” down on Mrs Cooper. Ip to tire time of going to Nevvlands she had never hoard of Mrs Cooper, and dd not know whether Mrs Cooper approved of her going to Nevvlands or not. Godfrey Anton Jorgensen, tailor, deposed to making arrangements with Cooper lor the reception of Alary Condrick in his “rest lioine ” The police proved certain correspondence found on Cooper dealing with this case. A representative of the Registrar-Gene-ral’s Oilice deposed that he had not been able to find a record of the adoption of a chdd under the name of Bell, the name under which Beadle’s second child was born. This closed the case for the Crown. No evidence was called for either accused. The Crown Prosecutor (Mr P. S. K. Macassey) then proceeded to address the jury. , in opening. Mr Macassey thanked the jurors for their close attention to the lengthy evidence, and he lelt confident that when they went into the jury mom they would give most just consideration to the facts put before them and to evidence of system which the Crown was entitled to lav before them. He then proceeded to review the evidence as to the birth and the alleged adoption methods of the child. 2\lrs Cooper was the last person kbown to be in possession of that child alive. She took it away from the mother, telling her that people had come to adopt it: but no record of adoption had been found, and the question was: Where vvas that child? If it was alive it vvas the duty- of accused to produce it. The Crown was entitled to assume that the first child found under the ground was M'Leod’s child. The age, sex, and weight all corresponded, and it had on the body a wound sim.lar to one remarked upon byCooper to the mother after it had been taken away from the mother. It was not, however, necessary for him to prove that the body found in the ground was, in fact, M’Leod’s child. It vvas sufficient to prove that the child was missing, and that it had been murdered by accused. The history cf the Lupi-Lister child was then traced. Both Cooper and his wife told Lister that people had come to adopt it, and she handed it over to them for that purpose. Subsequently Cooper told Airs King that the people would not take the child, because she bad notified its birth. Counsel then proceeded to comment on the contradictory statements made by the male accused concerning this child, all of which were ‘‘pure lies, nothing else.” This was proved by uncontradicted evidence. With regard to Beadle’s first child, it was one day taken away by Cooper, and had

not since been seen. In this case there was nothing connecting Mrs Cooper with T, except that she was aware of its birth, because it was in the house where she was for some days. ...ns second child found, e Crown contended, was Beadle’s second child, because all the known facts about it coincided with that theory. The third body found was clearly not one of the four given to Cooper for purposes of adoption, and the Crown could offer no theory concerning it; but the medical evidence showed that it had lived and had been subjected to violence, either before or after aeath. As to who buried the bodies there, it vvas clear that it could not have been done by anyone but the Coopers. If they had been buried by someone else during tile day time they would almost certainly have been discovered by Airs Cooper, who was living there with the children, and no one was likely to bury bodies in Coope-’s garden, where they were likely to be discovered, when there were many acres of vacant land in the neighbourhood where they could have been buried secretly. As to Airs Cooper’s knowledge of what vvas gping on, she knew that the babies were ,orn: she took part in their alleged adoption ; and it was reasonable to suppose that she must at some lime have asked her husband concerning them. It had been suggested that Mrs Cooper was under Cooper’s domination ; but ho put it to the jury that compulsion was no defence in a charge of murder. Efforts had been made to show that there was evidence of hypnotism and mesmerism by reference to polished discs; but if this was the case he would point out that when persons were put into these trances they remembered nothing of what took place while . they were in them, so that in that respect they must accept the Cr evil’s evidence, which went in the direction of proving that there were no practices of this kind going on. Coming to the s.tence cf the accused concerning the whereabouts of tho children, this silence was their responsibility. If Mrs Cooper was innocent why had she made no statement? But she offered not one word of explanation. TaKing -into consideration all the circumstances under which she was living with Cooper, it uas impossible that she did not know what vvas going on. Her statements concerning the children had been proveo 1 to be false, and tlie Crown had the right to suggest that this had been done tor the purpose of covering up her co-operation with her husband. Subsequently she adopted a policy of silence, when a simple word from her might have cleared up the whole mystery. So far as Conner was concerned, the case was particularly clear. T ho children were traced to him', and he said they were adopted. -l he Crown had exhausted every means available to trace those children without success. Formal demands had been served on him for the production of the children, but they had not been produced. Was. this refusal to produce the children or to explain their whereabouts consistent with innocent conduct? They simply said nothnig, leaving the police to do the best, the} could Vo -tear up the mystery. The Crown’s evidence was unoontradicted. The only reply to the Crown’s case was silence. He asked the jury to judge of the accused’s guiit or innocence on the evidence before them. If these little babies were ruthlessly murdered, then there could be no sympathy for the accused; but the Crown old not seek vengeance or a victim. It only required justice. When the court, resumed after lunch Mr Treadwell commenced his address on behalf of Cooper. He said the charge against the prisoner was murder, and the punishment for that crime was death. The care and attention to the evidence which the jury displayed had rohoved to some extent his anxiety as to whether from want of care and vigilance on -Is -.--art he h-'d 'ailed to adequately present the case of prisoner. For that care and attention he thanked them. Proceeding, bo warned the jury against coming to a hasty conclusion, and said his client did not claim mercy. The law was merciful enough. What he wanted was justice. He claimed that our system of criminal investigation and administration reached the hi chest- known standard, and he pointed out that the. presumption under our system was that a prisoner was always regarded as innocent until proved guilty. ITis client vvas entitled to the full benefit of that presumption The only question before the jury was whether or not Cooper and his wife murdered M'Leod’s child. ’They hail nothing to do with the other cases, introduced by the Crown. lie then proceeded to trace the circumstances surrounding the birth of M'Leod’s child which were characterised by the greatest kindness on the part of Cooper. Was it possible, be -asked, that this man could adopt this attitude of kindness towards his client- and the next moment become an inhuman monster, who co/M kill her child. The Crown’s theory that all this was done for “sordid lucre” was dissipated by the fact- that Cooper did riot, relax his kindness when all chance of his receiving payment vanished. Was it consistent with the theory of murder that Cooper should

have sought the services of Dr Wright in connection with M'Leod’s child. Cooper’s desire to secure the adoption of children was not consistent with murder, but it was not remarkable that persons adopting children should desire that their identity be kept a close secret. Had Cooper and hi 3 wife intended to murder this child they could have easily done so at its birth when no one vvas present. That was their golden opportunity. Instead of that they left it with its mother for eight days, excited her mother love, employed a doctor in connection with the case, and took other risks which were altogether unnecessary, lie scouted the idea that murder vvas possible under such circumstances. Furl her, the jury must remember that corpus deiioli, —i.e.. the murdered body—could net be found. u.nd our law took up the position that in such circumstances the jury must be satisfied of the guilt of the prisoner right up to the hilt. The jury must be satisfied that the body is dead, that it was murdered, and that it was murdered by the accused. They must be satisfied that accused was the ordy person who could have murdered, and who in fact did murder, the victim. On this point ho quoted authorities which he claimed refuted the contentions of the Crown The jury’s difficulty was therefore greater than usual in murder cases, because there was n evidence that the body found had been actually murdered by tho accused. What die Crown relied on for the identity of the body found with M'Leod’s child was the colour of its hair; but on this point no two witnesses agreed. M'Leod said it was dark brown and long. Dr Wright said the hair on tho body found was block, buc nothing was said about, i. being long. The M'Leod, child was full-grown and healthy, but the medical evidence concerning the body found vvas conclusive. It was not, a full term child, and therefore could not have been M'Leod’s child. At all events, there were high odds against it being the same child, and this served as another warning against a hasty verdict. The medical evidence proved that the child found had not breathed, but M'Leod’s child was strong and healthy, and had cried and kicked, and Dr Hector said the chances were nine to cue that the lungs of such a child eight days old would be expanded. The absence of complete expansion of the luilg in the body found was surely evidence that it was not M'Lood’s child. As to the weight and age of the child the medical authorities did not support the theory of the Crown. Another point of identification with M'Leod’s child on which the Crown relied was the time it, was in the ground. For the Crown’s case it must have been buried for two months, bht Dr Hector, the Crown’s scientific witness, said it was not safe, to say that it had not been in the ground fo-r five months. If it had been in the ground for five months then the whole structure of the Crown’s case fell to the ground. In these uncertain circumstances was it safe to bring in a verdict against Cooper? The evidence of “system” introduced by the Crown was evidence of an extremely dangerous class, and had been brought in to bolster up a weak case, a case so weak that it could not have detained any jury five minutes. Discussing Beadle’s children he maintained on the dates that her first child, referred to in this case, could not have been Cooper’s. That was impossible. Beadle must have been pregnant when she first had intercourse with Cooper. The relations which existed in Cooper’s household might be repugnant, but they in no way proved that Cooper murdered the child. Subsequently Beadle did have a child by Cooper. That indicated that Cooper wanted children. If he desired to murder these children why in the name of reason did he wait so long to do the deed. If the theory of the Crown were correct with regard to Beadle’s child, it should have been under ground 16 months; but the doctors said it had been under ground only six months, or perhaps 12 months, which only went to show what part guesswork played in tho part of the Crown. With regard to the child buried under the ashes, it was found at, tho spot known as the ash-pit connected with the “crib,” and the theory of the Crown was that the ashes had something to do with the fire at the Cooper's house.. They had not. They were the ashes that came from the crib, and on this point trie case of the Crown burst as the result of its ovvu weakness. The third child had fair hair. ibis circumstance was a deliverance, because bad the hair been dark it might have been taken for Lister’s child, because it was in ground from about the time Lis tor’s child disappeared. The fact that ii had fair hair proved it was riot Lister’s child, which only went to show how dangerous if vvas to convict anyone on circumstantial evidence As to the absence of an official record of adoption, be said it was not, remarkable that women who had no children of their own should want to proclaim the fact, to the world. The whole process of adoption involved so much publicity that it was little wonder that adopting parents often shirked the conditions laid down by the law. Counsel then reviewed the statements made by tho accused, the first

of which was made under pressure, and vvas the act of a stupid man. After that he told the police he would tell them anything he knew. No motive had been disclosed compatible with murder. In this respect b differed notably from other celebrated cases, fos searc-b as they would, the jury would bo unable to discover any motive which would induce the accused to commit such a crime since the Crown’s theory of sordid gain had gone by the boat'd. In no case previously tried in New Zealand had there been so much prejudice displayed as in this case. He cautioned the jury against being influenced by public sentiment and newspaper headlines, which, in a desire to create a sensation, sometimes undermined judgment. He adversely criticised the policy of the Crown importing photographs and skeletons into the court. They were only calculated to raise repugnance and passion, while they proved nothing the jury did not already know. The jury must not base Us verdict on horror and repugnance, but on calm, sure, and unimpassioned judgment. 1 he evidence went to prove Cooper to be a kindly, humane man, who treated his clients and his own children with the utmost consideration. He asked the members of the jury to try accused on the evidence before the court, and if they had approached the case with any preconceived ideas or prejudices, he asked them to banish all such prejudices in the name of justice. The prisoner was not obliged to prove his innocence. It was the obligation of the Crown to prove him guilly. Counsel then concluded an impassioned address lasting two hours and 20 minutes with the words of a great lawyer of former days: “May the spirit of all truth guide you to an honest and just verdict, but no verdict can be either honest, just, or true unless it atonce satisfies the reasonable scruples of the severest judgment, and yet leave undisturbed and untaxed the tenderest conscience among you.” At 4.20 p.rn. Mr Wilford asked his Honor if be might postpone his speech on behalf of Mrs Cooper until the morning. ITis Honor said that if it vvas necessary in the interests of his client he. could not refuse such a request. Mr Wilford assured him such was the case, and the court adjourned until next, morning. May 22. _ When the Supreme Court resumed this morning to hear the last stages of the trial of Daniel Richard Cooper and his wife, Martha Elizabeth Cooper (who are jointly charged that at Nevvlands, near Johnsonville. on or about Oetolser 20, 1922. they murdered the infant, child of Alargaret Mary M'Leod and William James Welsh), the galleries and floor of the court room were again crowded by interested listeners, many hundred late comers being compelled to content themselves with a less advantageous position outside the building. Looking pale and anxious, Cooper and Mrs Cooper entered the dock a few minutes after 10 o’clock, and at once Mr T. M. Wiiford commenced his address on behalf of Mrs Cooper, MR WILFORD’S ADDRESS. lie pointed out that Airs Cooper was not under trial for tne murder of either of the Beadle or Lister children, only with the murder of M'Leod’s child. The Crown was entitled under the law to introduce evidence of “system,” but he asked the jury to remember the fact that any evidence of “system” must not be counted as evidence against his client. The Crown i’rosecutor had said yesterday: “So far as the male accused is concerned, the case is a clear one.” That was a pointed inference that the case against his client was not clear, and he thanked Mr Alaeassev for saying what be did. He (Mr Wilford) proposed to show them that, not only was the case against Mrs Cooper not clear, but there wag a great deal of evidence in her favour. It vvas the duty of the jury to impartially weigh the evidence, and if. as a result of that weighing, they had any doub-t, then bis client vvas entitled to an acquittal. His client had been prejudiced ali through the oa.se by an “atmosphere” which had been created. As an instance there was the disappearance of the Beadle children, which had been prominent in the case, but the Crown admitted that Airs Cooper was absent from Nevvlands for months before the child was born, and for months after it had disappeared : so that .Mrs Cooper could not possibly he concerned in it; and be believed the absence of Mrs Cooper made it possible for a grave to lie dug and the chi’d buried close to the “crib.” 1 here was not a tittle of evidence connecting Mrs Cooper with the disappearance of the Beadle children, arid the case against her was limited to her connection with the M'Leod and Lister children. In this connection, vvas it strange that she believed her* husband when lie told her he was having the children adopted? All the other witnesses were convinced by Cooper; even the police believed bis story till something turned up to smash

it to pieces. What, then, was unreasonable in Airs Cooper's belief? And if she .1 believe that they were being adopted, than the case for the Crown fell to the ground. ITer conduct all through was consistent with adoption, and the Crown had not suggested that Airs Cooper had killed M'Leod’s child. They dare not do that. Nothing had prejudiced Airs Cooper A' much as the fact that she consented to take up a secondary position to Beadle the household at Nevvlands His (Mr Y ilford’s) explanation was that Airs Cooper was completely dominated bv her husband; not that there was anything in the nature of coercion in the ordinary way, buc the fact was that she vvas reduced to the position of a household drudge without any mind of her own. All the women who came to Nevvlands were “dumped” on Airs Cooper. Her wishes were never consulted, until resistance gave out, and she left for Dunedin. How, then, did Ccoper obtain this ascendancy over Mrs Cooper? He (learned counsel) suggested hypnotism or mesmerism, both of which- had long passed the experimental stages. That vvas the only possible explanation of her extraordinary conduct in permitting Beadle to take her place. She was a woman sinned against rather than sinning. She believed her husband until the bodies were found. After that her answer to questions by»the police was: “I have nothing to say,” which vvas simply the answer of an automaton whose vv ill power was nil. Her statement made to the police before the bodies were found was intended to save Cooper. It vvas made under pressure, and that vvas why it vvas subsequen 11 y withdrawn. Coming next to Cooper’s methods, counsel pointed out that he always employed an intermediary between the mother and himself. He never took a child from the mother himself. In the case of the second Beadle child, he employed Effie Adams. When Adams said she handed the child to Cooper to be adopted, was her evidence to be believed? Of course it was. Why. then, not believe Airs Cooper when she said that she believed Cooper when be told her he had given M'Leod’s baby to some people who were going to adopt it? Before the jury could convict his client they must unanimously arrive at the conclusion that she did not believe her husband. The case vvas intricate. It was hard to know and hard to see. lie could only conclude in the words of Bracken: “Oh, God. that men might see a little clearer, or judge less harshly where they cannot see.” JUDGE SUMS UP. His Honor began summing up at 11.23. He said that the evidence which the jury had considered, was confii.ed between very narrow limits, and they had to carefully separate the evidence, which, in fact, would be proof against one prisoner and not the other. It was the duty of the Crown to lay a comirlete case before tho court, and they must be satisfied (hat that had been done —that there was,no flaw in the evidence which would raise doubts in their minds. If they had any reasonable doubt as to the guilt of either party, the accused must receive the benefit of that doubt. They must be satisfied that tho body of Al'Leod’s child was dead, that it vvas murdered, and that it vvas murdered by one or both of the accused. To prove •this crime it was not necessary that tho Crown should produce the body, as counsel for Cooper had suggested. It vvas only necessary that the Crown should prove the crime, and this was especially so in tho case of a very young child. Such child was, in a sense, a trust,.and common sense dictated that the last person known to bo in charge of it could he hold responsible. Evidence had been submitted to the jury, all of which went to show that the body found near Cooper’s house, and which the Crown claimed was Al'Leod’s child, bad not been honestly dealt with. His Honor then proceeded to justify his action in admitting the evidence of “systetn,” the principles of which he explained in detail, illustrating them by particulars of celebrated cases. Cooper, in one of bis statements. made admissions which were tantamount to a;s admission of a “system” in the receipt of young children and their adoption. It was therefore open to the Crown to show what his system was. They were not to convict Cooper of murdering M'Leod’s child because they believed lie murdered other children, but the evidence of “system” submitted would aid them in arriving at e conclusion regarding Al'Leod’s child. After dealing with the element of accident in causing the deaths of young children, bis Honor pointed out that four children were missing, and three bodies were found on Cooper’s property. What, (h'n, were the chances of three accidental deaths on a 19-acre farm? If all the farms in New Zealand were dug over, on how many v-'.-i.i bodies of infant children bo fnr.n,■; Net. on many, be thought. So they had to consider how no less than throe were found on Cooper's 19-acre farm. Then, what chance bad some invader of having placed the bodies there? Cooper had suggested that I.upi and Goulder might

have placed them there, but that suggestion had been disproved. Was it, then, mere coincidence that four children were missing oral three bodies were found on the Cooper property ? trooper’s story of how he handed I.ister’s child to Lupi for adoption was now proved to be a pure fabrication, and it was for the jury to consider how that bore upon his statement regarding MT.eod’s child. They had to remember that not at any time during tile long inquiry bad Cooper made any statement which would help the police r 0 clear up the mystery. Was it feasible, if Cooper had properly given the child to Palmerston North people to adopt, that they would not now come forward and produce the child? And what had Cooper done to help himself? Nothing, except concoct a story about I.upi, which had been proved to be untrue, lie had not said one Word which would help to disclose the whereabouts of the missing child. The motivo was to be found in the money arrangements Cooper made with Welsh and I-upi, though it was not necessary for the Crown to prove motive. So far as Mrs Cooper was concerned, if they believed she was so much under the influence of Cooper as to believe the story of adoption, then they must give her the benefit of the position which the law allowed to such a one; hut in order to arrive at, a conclusion as to what she really did believe, they had to consider the untrue statement she made regarding Lifter's child ; and when she withdrew that untrue statement she never afterwards made any explanation which would clear the matter up. Later on, when she was not under the “evil eye” of her husband, she persistently refused to say more than to refer the police to her solicitors. This and her untruthful •tatomont must be considered when the jury was deliberating on her mental attitude. If there was a doubt, she must get the benefit of that doubt.

At two minutes to 1 the jury retired, and his Honor adjourned the court. When the court resumed at 2.27 p.m the jury returned. THE JURY’S VERDICT. In reply to the Registrar’s question the foreman said the jury had found a verdict of guilty against the male accused, and not guilty against, the female accused. There was a slight manifestation of applause on the second pronouncement, but this was quickly suppressed. Mrs Cooper during the trial, had been accommodated in a separate dock, but now appeared in the main dock with her husband, a constable and a woman police attendant standing between them. Both naturally displayed the effects of the great strain they had been subjected to when they entered the dock, and on the announcement of the verdict tihe male accused bowed his head and was visibly deeply affected. The woman remained more composed. A deep hush prevailed for a moment, then at a word from the judge Mrs Cooper was removed from the court. The Registrar then asked Cooper if he had anything to say why sentence of death should not he passed upon him. 'I he accused replied in a voice which was low and failing at the end : “I can only say that I am innocent of this, and I cannot believe yet that, the child found was M'Leod’s.” The court crier having commanded silence the judge addressed the prisoner and said : “Prisoner at the bar It is unnecessary that I should say more than a few words. Your crime, in the eyes of the public, speaks for itself. Unfortunately, I have had to pass sentence of death on several occasions, but I have never known such a cruel, heartless murder as this.” SENTENCE OF DEATH. Assuming the black cap. the judge then said; ‘ The sentence of the court is that

you be taken hence to the place of execution and there hanged by the neck till yon are dead.” The condemned man bowed his head apparently dazed, and was hurriedly taken away to the cells. The judge thanked the jury for the careful attention given to the painful case, and would make an order that they be discharged from jury service for five years. His Honqr also complimented the police on the fairness of the manner in which they had conducted the case. On Mr Treadwell’s application the. judge agreed to hear an application in Chambers for leave to appeal on the question of the admissibility of certain evidence. The Crown Prosecutor gave notice of his intention to enter a nolle prosequi in the other two charges against Mrs Cooper, which would he dealt with on Monday next, to which date the criminal session was adjourned. Large crowds of morbidly curious spectators collected outside the court in the vicinity of the exit from the cells to see the condemned man removed. The police, however. kept the track clear for the van, and very few had a view of the prisoner as he entered, and was driven away. There was no demonstration and in a few minutes (he crowd dispersed VERDICT NO SURPRISE. WELLINGTON, May 22. The result of the Cooper trial created no surprise, the verdict being what nearly everyone who had followed the case expected. The jury occupied less than an hour and a-half in deliberating. Throughout the trial the court has always been crowded, and to-day when after the room was filled, and the iron gates outside the doors were closed, a queue of men and women waited for hours hoping

to get. a glimpse of what was going on inside. A regrettable feature of the proceedings was the eagerness of the crowd, which included many young men and women, who remained for hours drinking in the sordid details of the t-riah Even children were taken into the court by their mothers. One apparently respectable woman with two young boys and a girl wearing their school colours asked a constable on guard if she could take her children into the court. The constable put her off bv saying that there was no room, and the mother then told her children to walk about the streets while she herself went in. Cooper, during the later stages of the case, showed the effects of the great mental strain to which he had been subjected. His face was drawn, and he appeared carew'orn and thin. After the judge’s clear and matter-of-fact summing up Cooper could have had but little hope of acquittal. When ; his Honor had passed sentence the crowd remained outside the court for quite a long time, some to witness the departure of the condemned man, others to talk over the trial and the verdict, COOPER’S APPEAL. WELLINGTON, May 24. At the Supreme Court yesterday Mr Justice Chapman heard in Chambers the appeal by Mr C. L. Treadwell on behalf of Daniel Richard Cooper, asking that his Honor reserve for the Court of Appeal a question of law as to whether evidence showing “system” should have been admitted. Mr P. S. K. Macassey appeared for the Crown. After hearing argument, Mr Justice Chapman said "that he could not- grant the application, as there was no ground for if. Later Mr Treadwell prepared a motion asking that the Court of Appeal consider an appeal by Cooper against his conviction on the ground that the evidence showing system was inadmissible. Hearing has been set down for Monday.