CONFLICTING EVIDENCE

Poverty Bay Herald, Volume LV, Issue 17502, 26 February 1931, Page 12

CONFLICTING EVIDENCE

ALLEGATION OF PERJURY CHARGE AGAINST E. F. MACKAY HIS HONOR’S SUMMING UP It was not until shortly before 6 o’clock last evening that the hearing of the evidence and addresses of the Crown Prosecutor and counsel for the defence was concluded in the Surpeine Court before Mr. Justice MacGregor in connection with the charge of perjury laid against Eric Francis Alackay, and His Honor then intimated that ho would sum up to the jury this morning. Mackay pleaded not guilty to a charge of giving false evidence at the inquest on Thomas, Martin Corcoran, who was killed in a motor accident on the Makaraka' road on October 27. Mackay then stated that Corcoran was the driver of the car at the time of the. acci dent, but the coroner held that Mackay was the driver, and later he was committed for trial to the Supreme Court on a charge of perjury. The evidence adduced at the trial yesterday was of a conflicting nature, and counsel addressed the jury at some length. Mr. F. W. Nolan prosecuted, and the accused was defended by Mr. L. T. Burnard.

Summing up, His Honor referred to the case as a troublesome one. The first question was -what was perjury This was described as false evidence to mislead a court, but an accused should not be convicted on the evidence of one witness only. In the present case there was. he thought, sufficient corroborative evidence on behalf of the coroner. The next question was what was the nature of the perjury alleged. The alleged perjury consisted in a series of state ments by Macaky, that Corcoran was driving the lorry'. Was the statement true or false? Mackay had stated that they started on the return journey with Corcoran driving. It was for the jury to consider whether Mackay’s statement that he was so confused after the acci dent that he did not know' what lie was sayinp was true.

There was the usual conflict of evidence after a tragedy. Each person who was a witness of such an incident had n. mental* impression, and tried to reproduce it. this usually causing confusion, and the main evidence in this case came from the witness Sharp and plainclothes Constable King. The former had said he had a short but fairly good view of Corcoran in the passenger’s seat, although he could not recognise the man who was driving. Was there any good reason why the jury should disbelieve the witness Sharp? Plainclothes Constable King had spoken to the accused on the site of the accident immediately after, the accused saying that he (the accused) had swerved to avoid a car coming from the showgrounds, admitting lid (the accused) was speeding some. This was surely an indication that the accused was driving. Why should the jury now assume that this statement was falsp? On the otb°v hand, the witness, Stubbs, for the defence, had also spoken to the accused immediately after the accident, and why should they believe one statement and disbelieve the other?

They had to consider, however, added His Honor,, whether it was probable that the accused, a Power Board cm* ployee, would drive the lorry to Mnkaraka and then allow another nun, not a board employee, to drive it back. Was it not most probable that the man to receive the most serious injury war the one who would be sitting in tin passenger’s seat? Was it not highly probable that Mackay, when asked about it . immedihtely afterwards would blurt, out the truth? He would not have had time then to think out, the cousequon'cas, either civil or criminal? The jury should concentrate their attention on who was the driver Of the lorry, and was the evidence clear on the point ? There were three possible views on the evidence, firstly, that Mackay was driving, in which case he would be guilty; secondly, that Corcoran was driving, in which case the accused would be not guilty; and thirdly, that if there vvas a reasonable doubt as to who was driving the lorry the verdict must bo one of not guilty. The jury retired at 10.50 a.m. ADDITIONAL EVIDENCE

Edward Walter AlcKenzic, motor mechanic, who took charge of the van alter the accident, stated that he examined it on arrival, and found most of the damage to be on the left-hand side. There was blood on the left runningboard and down the body of the van. Oil the left-hand hood support there was blood and hair.

Plain-clothes Constable Charles Dunsford King, stated that when ho arrived at the scene of the accident he saw Corcoran lying on the bitumen near the lorry. Alackay was sitting on the run-ning-board, and witness asked him what had happened. Alackay replied: “A ear was coming out of the showgrounds. I swerved to miss it. Slio shimmied and turned over. 1 admit i was speeding some.” Detailing the inquiries suffered by the deceased, witness stated that above the left ear there was a cut about 2Jin. long. Witness corroborated AfcKenzie’s evidence as to the blood on the car, and stated that there was blood and hair on a hook on tho left-hand hood support. To Air. Burnard, witness stated that at the time he spoke to Mackay he was very white, and it was not convenient to take a statement from him. Witness ascertained from Dr. Douglas L. Afuir that it would be about four hours before Mackay would be well enough to give a statement.

This concluded the case for the Crown. Mr. Burnard intimated that he would call evidence in an attempt to show that it was Co’coran who was driving the van, and that Mackay was in such a state when spoken to by Constable King that he could not- know what he was saying.

Uwenifcr Groves, the first witness for the defence, gave her impressions of the accident. She stated that she run. up to the van, which seemed to he resting on the hood, the wheels being off the ground. She could see the deceased s head projecting from tho driving side of the lorry, At that time she had not seen anyone else in the van, Some men and witness lifted the van, and as they did so the man’s head went hack into the van, and his body slipped towards the passenger's side. One of the men held the hotly. After some time witness saw Alackay, who as very dazed and there was blood coming from his ear. which was cut. She spoke to him, but he did not answer her intelligently. In reply to Mr. Nolan witness staler' that when she arrived first she looj-ed into the van from tht left-hand side. Corcoran's bend was hanging out of the per nearly on to the road on the driver s side.

Mrs. Gertrude Elizabeth Groves, who witnessed the nncident stated that when sho arrived on the scene the ear had been righted, and Alackay was bleeding freelv from the side of the head, and h’s clothes were torn. He was in n very h».'t state, and did not seem to know what he was savin" nr doing. '•’homas Henrv Hudson, an electric Pnosman. wlm tn ri"M the ear, •stated that the deceased was hanging oy«k- tilt! Bide of Uie vtu* oa tho show-

grounds side, tho van then being faced towards Makaraka. As the vehicle was righted witness took tho body out of tho passenger’s side of the van. Cross-examined by Mr. Nolan, witness stated that when he arrived Corcoran was on the driver’s side of the van. George Tod Forbes, a Power Board linesman, stated that when he went out to the van from the showgrounds lie trave a hand to right the car, and saw Corcoran’s head projecting from the. showgrounds side. As the van was lifted the body started to li<t with it. and it was then that Hudson caught hold of the body and supported it while the van was lifted away. The body came through the car and came out on the showgrounds side. Claude Frederick Sterling Stubbs, who arrived on the scene n few minutes after the accident, stated that he spoke to the accused. Mackay was very white, appeared to have received a bad shock, and was in a bad condition generally. Witness asked Mackay whether he was coming from town, and Mackay said ■ “No; from Makaraka.” COUNSELS’ ADDRESSES

Addressing the jury, Air. Barnard said that to establish a charge of perjury it must ho shown that there, was a deliberate intention on tho part of the accused to tell what was untrue—not merely the giving of false evidence. Secondly, the evidence that the Grown brought to prove the accused guilty must he corroborated. It could be seen that the accused must have'been severely shaken up. Such was his condition that lie might easily have imagined the facts to be other than they really were. Counsel reminded the jury that it was for the Grown to prove that Mackay was the driver, and not for the accused to prove that lie was not. Sharp was the only witness produced by the Crown who made any attempt to say who was the driver, and counsel reviewed and criticised his evidence. Sharp, lie said, had had onlv a momentary impression as the van flashed past, and it would have teen quite easy for Corcoran to have leaned over from the driver’s seat to wave to him. Sharp’s evidence was entirely uncorroborated. The accused made a statement to Constable King, hut his condition was such, on the constable’s own admission, that the doctor would not allow a statement to be taken from him for at least four hours. When the question was asked of him for the moment, perhaps, it was in his mind that he had in fact driven the car out of tho showgrounds. That statement of his rould not he relied upon. by -the Crown as corroboration. Against the evidence for the Crown there was the very clear evidence of the witnesses for (lie defence. Those witnesses all said the same thing, that the deceased was on the driver’s side of the ear when they arrived. The matter was clear; before a conviction could he made the iurv must be satisfied that the accused was driving the van; that he deliberate!v made a false statement, knowing it to be untrue, and that the evidence for the prosecution was corroborated. In reply, the Crown Prosecutor review ed tho evidence. Sharp, he said, was definite that Corcoran was sitting in the passenger's scat, and no amount of crossexamination could shake him on that point. AlcKenizo s evidence showed clearly that the greater part of the damage was on the left-hand side of the van, and that the great mass of blood was on the left side. The iron-work on that side, and the hook on the stanchion supporting the hood had blood and hair on them. Counsel suggested that the injury u> the left-hand side of Corcoran’s head was caused by the hook. There was no blood on the driver’s side. Tho only injury suffered by Mackay as described by the witnesses was a small cut on the ear, but the witnesses stated that the deceased’s head was smothered with blood. There was no attempt to examine Mackay at the time; Constable King merely 'said : “What happened?” and lie received the r.-vver which had teen read to the jury: “A car was coming out of the showgrounds. I swerved to miss it. She shimmied and turned over. I admit I was speeding some ” Tne extreme probability was that at the moment Mackay was thinking of nothin? hut the accident, and that what he told the constable was the truth. Mr. Nolan submitted that the evidence adduced by the Crown had not been answered in any material particular by the evidence for the defence, and that the Crown’s ease was fully supported by the weight of testimony.