FOR THE SECOND TIME

Poverty Bay Herald, Volume LIV, Issue 16807, 21 November 1928, Page 4

FOR THE SECOND TIME

JURORS DISAGREE ALLEGATIONS OF ARSON RETRIAL NOT RECOMMENDED. After the full four hours’ retirement, the jury disagreed, last evening for the second time, in connection with the trial of George Campbell, who had pleaded not guilty to an indictment of arson. At the last sitting of the Supreme Court in Gisborne Campbell was charged with wilfully setting tire to the stables attached to the fcpseland Hotel, Makaraka, but on that occasion the jury failed to agree upon a verdict, and Campbell was tried for the second time in the Supreme Court yesterday before Ilis Honor Mr. Justice Ostler and a jury of 12. When the jury had announced tire position, His Honor, in reply to the Crown Prosecutor, recommended that a third trial should not bo applied for, and on the prosecutor’s application this matter was deferred until to-morrow to enable him to communicate with the Attorney-General.

Mr. F. W. Nolan prosecuted on be half of the Crown, and Mr. L. T. Bur nard appeared for the accused.

The last witness yesterday afternoon was Detective McLeod, who produced the statement made to him and signed bv the accused. Continuing, witness stated that on July 9, at the conclusion of the coroner’s inquiry in regard to the tire, witness arrested and charged the accused. Intimating that lie was calling no evidence for the defence, Mr. Burnard said the crime charged against accused was very serious, and it was essential that it should lie proved without reasonable doubt, being one of the gravest import ance. The evidence was of a very flimsy character, and could not even be pieced together to make n, case of suspicion. There was a grave doubt as to whether any crime took place at all, for there was no proof that the building had been set alight wilfully by some person. In considering whether or not the accused was guilty the jury would have to consider that the fire might have been caused in one of two ways—either acci dentally, or through the wilful act of some person. The question of motive had then to be considered, and it was clearly established in the evidence that the accused had no motive. He had been on good terms with the licensee, and although he Wad been put out of the hotel, this had occurred before, and the accused had borne Carmodv no illwill, always returning to the hotel when he felt in dined. Obviously the motive, if anyone had a motive, was not to injure Carmody, for the stables belonged to Mrs. ITogan, and all that Carmody had in the build ing was a quantity of fodder and an insured motor-car. The injury that would he done to Carmody would bo so slight that it would not he worth anyone’s while to set fire to the building for that purpose. The man who set fire to the shed was not likely to 'be a man who had had anything to do with dogs, and who was a friend of the drover Leash, for it- was Leash who suffered tlie greatest injury. One could not imagine that Campbell, who was a drover, and had much to do with dogs, would deliberately set fire to a building, knowing that it contained a. team of dogs. But it was not necessary for the jury to assume that the fire was a deliberate one, for it was much more likely that it had been accidental. The failure of the Crown to establish motive made the case break down at that point. Assuming, for the moment, that motive had been established, however, the evidence was purely circumstantial, and it was not even proved that a crime bad been committed. The evidence was that the accused was always round about the hotel, and the place where Campbell was seen was exactly the .spot where he always tied his horse. All that the evidence showed was that Campbell was seen in tho vicinity of the place where ho always was, and mounted bis horse at the piace where he always left the horse tied up. Moreover, a guilty man was not likely to remain at the scene of the crime for an hour or more afterwards. The evidence regarding the bottle did not establish satisfactorily that the accused had thrown a. ‘bottle, for one witness said lie had seen the accused bit the window with what appeared to be a whip, and there was no resemblance between a whip and a bottle. Moreover, at a time when two or three of the witnesses said they had seen CanfpLell on his horse, the other witnesses saw him on foot, which indicated either that there were two men. or that some of the witnesses were mistaken as to tiie time. HIS HONOR SUMS UP.

Summing up, His Honor said it was not necessary to describe the legal factors of the crime of arson. In this case the onus lay on the Crown to establish the case beyond reasonable doubt, and the jury had been told that the evidence was circumstantial, but he supposed that in noLTnore than ono in every 1000 of such or other serious cases was the evidence more than circumstantial. It was the same with all the most serious cases, and in all leading murder cases the evidence was entirely circumstantial, for the man who committed the act took care that he was not overlooked. Circumstantial evidence had been well likened to the various strands of a rope. The first point to consider was the question of motive, and the evidence of motive offered by the Crown was that the accused was pushed out of the hotel. Who threw the bottle through the window? Five minutes before the bottle was thrown Cedric Malone saw Campbell under the window. Smeeton saw him hit the window with something, and gallop away towards his home. Was there any doubt that Campbell broke the window? Very well—was there any doubt that he was still harboring anger and revenge? And if he were still

harboring anger and revenge after the lire it Was reasonable to suppose that he did also before the fire. Therefore, Hie Crown said the man had a, motive, and further, that be had an opportunity. There was no more fruitful source of error in criminal courts than the question of time, and he would advise the jury to take no notice of the evidence as to time. Not only was the accused seen at the fire, but also be was seen by both Forsbnws within 20 minutes of the giving of the alarm at the very spot where the fire broke out. Therefore, be had the opportunity. It was said that lie was friendly with Leash, and that be would not be likely lo destroy the dogs, but there was no! one tittle of evidence that he knew the dogs were there. Then came the strongest piece of evidence for the Crown. In his statement to the police Campbell said that when turned out of the hotel lie hunted for bis horse all about Te Ha para and Makaraka, and that he had not found it when he came to see tho file. But if they believed the two Forshaws, Campbell’s story was an nbso lute lie. Ho was also seen later by Smeeton; be was seen by several witnesses, and the suggestion was that his story was a lie. Being under suspicion regarding the fire, Campbell told a series of lies, if the jury believed the evidence. There was only one motive for a man to tell such lies, and that was to hide the true happenings. The jury would be fully justified in coming to the conclusion that Campbell set tho stables alight. It was said by Murdock that Campbell was under the influence of liquor, but Smeeton held the opposite opinion. Assuming that he was under the influence of liquor, it was agreed by all witnesses that he knew what ho was doing. In any case, drunkenness was no excuse in law.

The jury retired at 3.46 p.m., and returned four hours later, when the foreman announced that they had been unable to agree. In reply to His Honor, the foreman stated that there was no chance of the jury agreeing upon a verdict. “Before I make application for a third trial,” said the Crown Prosecutor, “I would inquire whether Your Honor considers it desirable in the interests of justice that a third trial should be held.”

“On the whole I don’t think it is,” replied His Honor, “for although the evidence is very strong against the accused,.two juries have failed to agree, and it may be that there is some element of doubt. Apparently it is an uncertain case, and it would be wasting the money of the country to have a third trial.” Mr. Nolan then asked that the matter should be deferred until to-morrow to enable him, to communicate with the Attorney-General, and his application was granted.

The accused was released on bail as before.