MURDER TRIAL

Southland Times, Issue 21771, 28 July 1932, Page 7

MURDER TRIAL

WHALLEY NOT GUILTY COMMENTS BY CHIEF JUSTICE MAGISTRATE’S REMARKS (Per United Press Association.) Timaru, July 27. In the Supreme Court, his Honour •the Chief Justice, Sir Michael Myers, presiding, the hearing was continued of the charge against William John Thomas Whalley, aged 33, married, of the alleged murder of William Edward Wogan at the Hermitage, Mt. Cook, on November 5, 1931. At the conclusion of the hearing, the jury, after a retirement of over three hours, returned a verdict of not guilty. Constable Mackintosh said he arrived at the Hermitage on November 6. The rifle had no bloodstains. He examined the room in daylight and saw nothing attached to the rifle to discharge it nor any protuberance in the wall which might have released the trigger. The rifle was empty but a box of soft nosed bullets was in the room and an empty shell on the floor. In a statement the accused said he had shown Wogan how to load the rifle, putting two bullets in the magazine and later removing them. Wogan was putting on a chain with the rifle between his knees. As the accused was leaving the room he heard a shot, turned round and saw blood streaming from Wogan’s head. Dr James Sutherland of Fairlie, gave evidence of the nature of the wound. The Crown Prosecutor, in his address, said that the jury had to begin with an assumption of the accused’s innocence and, if it had heard anything previously, should put it out of mind and consider the evidence submitted. The only man in the room at the time of the tragedy was the accused. Counsel for the defence had contended that the deceased could have held his rifle out and set the trigger on a nail but there was no nail or protuberance in the room. He contended that it was unlikely and impossible that Wogan had shot himself. Counsel analysed the evidence at length. Case For the Defence. In the course of his address to the jury, counsel for the accused said the jury had to be satisfied beyond reasonable doubt of the guilt of the accused on what they heard within the four walls of the Court. They had to obliterate everything they had heard outside the Court. There had been some peculiar features about the case, particularly extraordinary he called it. and that was the conduct of the Coroner who held the inquiry and the Magistrate who committed the accused for trial. Those two gentlemen made statements from the Bench which were decidedly prejudicial to the accused, who was going to stand trial on a capital charge. What they had said they had said in public. What they had said they knew would be published. Counsel said that was highly improper and he thought that the Crown Law Office had taken the same view, because a change of venue had been offered, because of the thing having taken place here and being prejudicial to a fair trial. An offer had been made for the trial to take place in another centre. They appreciated the offer but, taking everything into consideration, they had decided that it was unnecessary to accept it. They were prepared, without going elsewhere, to place the fate of the accused, in the hands of a jury at Timaru. His Honour Sums Up. In the course of his summing up, his Honour said there was one matter he felt constrained to refer to. It was that which counsel for the defence had referred to in his address. When he was charging the Grand Jury on the previous day, he himself, knowing something of the kind had happened, ventured to deal with it in a guarded and general way, without making particular reference to the case. He had hoped that that guarded and general reference would have been sufficient. Counsel for the accused made reference to it, however, and certainly not improperly, and he felt it encumbent upon him to say a word or two to clear the’ matter out of the way. Every person who was accused of a crime in a British community was entitled to a fair trial. During the course of a trial a judge might possibly express an opinion about the evidence, but when he did so he told the jury they were the judges of fact and were not bound by an expression of opinion the judge might utter. He had said the day previously, and he said it again, that a person who was accused of a crime had a right to come before a trial jury unprejudiced and unembarrassed by a prior comment. Counsel had told them of the comments of Coroner and Magistrate, and he felt it his duty to say a word or two about the duties of a Coroner and Justice of the Peace because the Magistrate, when sitting in a preliminary inquiry on an indictable charge, was sitting as a Justice of the Peace. It was the Coroner’s duty to ascertain the cause of death. That was his understanding of his duty. So far as a Justice of the Peace or Magistrate was concerned, he was merely sitting ministerially, merely as a recorder of the evidence before him, excepting to this extent., that he might have to decide provisionally, leaving it ultimately to the Supreme Court, if the case went to trial. Regarding the admissibility of evidence and when all the evidence had been taken, he had to decide whether or not a prima facie case had been made out. If so he would commit the accused for trial, and if no case was proved he would then give his reasons for the dismissal. If, as he gathered from the statement made by counsel, anything had been done in the present case contrary to what he had said, all he could say was that it was to be deplored. It had never happened previously in New Zealand in his experience and he hoped it would never happen again. Verdict of Not Guilty. The jury, after a retirement of over three hours, returned a verdict of not guilty. The pronouncement was greeted with applause, the judge thereon ordering the police to bring forward anyone seen applauding. The police saw no one and the judge said he had seen one man, but he would not like to take advantage of that. He added that he desired to make a certain observation. Counsel for the defence had drawn his attention to the fact that when he was commenting during the afternoon on the comment of the Coroner and the committing Magistrate he had, as he now found, not the accurate finding of the Coroner. He had the finding as it appeared in the local paper, which omitted two or three words, which very greatly qualified the comment that should be made so far as the Coroner was concerned. The position of the Coroner was different from that of the Magistrate and so far as the Coroner was concerned it would have been better if one paragraph of his finding had not appeared. That did not affect the comment so far as the committing Magistrate was concerned.