JURY’S VERDICT IN PIHA CASE

Southland Times, Issue 23827, 26 May 1939, Page 4

JURY’S VERDICT IN PIHA CASE

Interfering With Body And Arson JURY REJECTS CHARGE OF CONSPIRACY ACCUSED REMANDED FOR SENTENCE (United Press Association) AUCKLAND, May 25. A verdict that both the accused were guilty of improperly interfering with a dead body and' of arson was returned by the jury in the Piha fire case trial after an unusually prolonged retirement of five hours and three-quarters. A strong recommendation to mercy for James Arthur Talbot was added. The jury found both the accused not guilty on the charge of conspiracy. Both were remanded for sentence. The accused were Gordon Robert McKay, aged 43, alias Tom Bowlands, wool and hide dealer, and James Arthur Talbot, aged 38, a labourer, and they were charged that on or about February 12 they wilfully set fire to a dwelling-house, thereby committing arson and further, that on or about February 10 they interfered with a dead human body. They were . also charged with conspiring by deceit to defraud the Mutual Life and Citizens Insurance Company, Limited, Sydney, of £25,500 by representing that McKay was dead. Mr Justice Fair presided. Mr V. R. Meredith and with him Mr N. I. Smith, appeared for the Crown. Mr W. Noble defended McKay and Mr J. Terry defended Talbot. Mr Meredith recalled Mrs Hearting in order that the notes on her evidence might be corrected. The witness said that on the Saturday afternoon after the two accused had departed a sack was left behind, but the bundle had gone. Mr Noble: Why didn’t you say that in the lower court? Witness: I must have forgotten. Mr Noble: You see it is important, because that, sack had diatoms on it. Witness: So I believe. Detective-Sergeant Aplin gave evidence corroborating in the main that of Detective Tretheway. , After brief cross-examination by Mr Noble and Mr Terry, Mr Meredith announced that he had no further evidence to call. Mr Noble said that he had no evidence to call, but he proposed to ask his Honour for a ruling as to the jurisdiction of the Court "to try the third charge—that of conspiracy. Quoting authorities, counsel submitted that conspiracy began and was completed at the moment an agreement was made. If there was any conspiracy in this case, it was committed in Australia. It was absurd to suggest that they came 1200 miles from Australia and did not agree what they were going to do here until they arrived. Mr Meredith held .that the parties to a conspiracy were still conspirators after the agreement to conspire was made. There was considerable legal argument on this question. After taking time to consider the issue raised Mr Justice Fair ruled that the Court did possess the necessary jurisdiction and that the jury was en-

titled to consider the charge of con- ’ spiracy. The authorities quoted by Mr Noble did show that the offence .of conspiracy was completed when the parties in the cases quoted had agreed to conspire, even though they had taken no other overt steps to forward their unlawful purposes, but such agreement was not final, and did not set out as a business agreement each step contemplated by the parties and each possibility which might arise. Matters which arose after the agreement was made necessitated the parties deciding whether they should carry it on by further agreement to commit certain acts. These acts involved a fresh agreement, and therefore a fresh conspiracy. It must be admitted that the question was not entirely free from doubt, but his Honour was satisfied that when at least the major portion of the acts forwarding a conspiracy were committed in New Zealand the Courts here had power to try the

parties. Mr Noble: Would your Honour state a case for the Court of Appeal? His Honour replied that he would reserve the- question for the Court of Appeal if the occasion arose. , Mr Noble then began his address to the jury. THE DEFENCE Both defending counsel intimated that they did not intend to call evidence, and Mr Meredith said that he did not propose to address the jury. In a very brief address Mr Noble said that the case had aroused tremendous interest, and was overladen with prejudice. The criminal law of New Zealand provided that no man was called on to prove his innocence. The Crown must prove its case without the assistance of the accused. The Crown’s case was wholly circumstantial. There was no direct evidence whatever; there had merely been a lot of guessing and deduction in an endeavour to prove that the two accused had interfered with the body of Shine. No witness, had seen a body. “So far as the arson charge is concerned, McKay was not there at all when the fire occurred. Even the evidence which my learned friend brought said that,” Mr Noble proceeded. “There is not one particle of evidence to show that McKay was there when the fire started. How could a man who was not there start a fire?” Concerning the charge of conspiracy, Mr Noble invited the jury to say by its verdict whether there was any definite agreement between the accused to come to New Zealand and commit a crime so that they could defraud the insurance companies and return to Australia. The effect of the conspiracy charge was not in New Zealand at all. ' If they did not believe that a con- . spiracy existed at all they would on t • the evidence return a verdict of not: guilty. If they wished to say the con- I ■ spiracy took place in Australia, then he (counsel) would be more than satis- i fied. He asked that they return ai: verdict of not guilty on all the charges, ; A challenge of the Crown’s theory : about Talbot and a statement that the : evidence was purely circumstantial . were made by Mr Terry in his address ; to the jury. General observations I which, he said, he felt constrained to 11 make prefaced Mr Terry’s address. |, NEWSPAPER ARTICLES |j Whether it was the presence of big 11 insurance interests or not he could j 1 not say, but he asserted that the prom- j inence given for a period of some three 1 weeks by the Press throughout the 11

Dominion and in Australia had reacted very gravely to the detriment of the accused. He regretted to say, and this ] was supported by detectives concerned in the case, that the articles in some of the newspapers were not only sensational and speculative, but also maccurate and misleading. As a result, the jury was asked to perform one of the most difficult intellectual processes known, to erase all preconceived notions, to banish all antecedent bias, to efface first impressions and to address themselves solely to the testimony given in the Court. • Discussing the nature of the charges, Mr Terry referred to the fact that the maximum decreed by the Legislature for arson was life imprisonment. Relatively the other charges were less grave in the matter of punishment. The evidence, he said, was purely circumstantial. No witness had come forward to say that both or either of the accused actually committed the crimes with which they were charged, but the Crown produced a number of witnesses deposing to a series of incidents which they endeavoured to link together and urge that the coincidences were so manifest that guilt had been established. It was true that circumstantial evidence was relied on considerably in the Dominion’s Courts, but it was only valuable when the chain of coincidence and circumstance was strong in every link. The Crown, in this case, was compelled to assert a theory. It alleged that a conspiracy existed whereby the two accused set out to defraud insurance companies of a big sum of money. A' conspiracy normally involved collusion between two parties to secure common objective in their common interest. Here the first serious challenge could be made to theory of the Crown. McKay , was insured for £40,000, but it was ’ impossible for Talbot to benefit financi--1 ally, even assuming that the scheme ; ; were successful. The Crown theory, ! therefore, meant that Talbot agreed to 1 ' leave Australia, come to New Zealand, ! ■ involve himself in a crime, return to t Australia, support the claim for int ■' surance and be pursued and harassed , by insurance officials and police with- > out the certainty and with little pros--5 pect of any financial advantage. One , i could not believe that his association . 1 or friendship with the accused McKay i would possibly lead him into such a . | foolish step. In his declaration on his , ‘ arrival in New Zealand Talbot men- >, tioned his purpose as a visitor and the . i fact that he brought a sporting gun and a swimming costume and inquired r about the -fishing indicated that he had » no idea of the possible trend that events might take. It was submitted on his . | behalf that all the facts relating I to his association with McKay in New ,; Zealand were capable of an innocent interpretation. I EVIDENCE REVIEWED Passing in detail to the evidence, Mr , Terry said that it was most significant that in relation to the two crucial inquiries brought out in the evidence, - namely, those made by McKay at the II cemetery and at Patrick Henry Shine’s ■ house, Talbot was not present. Further, r I the agent for the Piha bach and his wife I made a noteworthy statement that Tal--1 bot was very silent and that he hardly spoke at all. All the letting, payment of -1 rent and delivery of keys was with one c; person and so it went on in every other - j matter. The rental of the car and pay--1! ment for it and the hiring of the gar--5 age and payment for it were McKay’s. - Talbot certainly acted independently t when he inquired in Woodlands road >• for a garage, but he made it clear ■> that he was dependent on the decision s of another party. The Crown had comII pletely failed to establish that Talbot 9 in any way knew of the existence of 11 the package alleged to have been seen in Mrs Hearling’s garage. All the wit--5 nesses agreed that he was greatly s agitated at the time of the fire and it s seemed strange that if he had had any part in incendiarism he should have so - soon sought assistance. . .During this phase of his address, Mr e Terry said that he wished to warn the t jury that he was not passing any opin--7 ion on the case as it concerned Mc- ■ I Kay.

JUDGE’S SUMMING UP A comprehensive survey of the case, its legal aspects and the duty of the jury was given by Mr Justice Fair in his summing up. His Honour said that the evidence brought by the Crown was circumstantial evidence drawn from a large number of facts. Direct evidence, the evidence of witnesses who had seen something, was not in a large number of cases readily available and a case had often to be proved with circumstantial evidence. It often happened that if each fact in circumstantial evidence were taken by itself it would not carry the case very far, but if one were to take a mass of facts cumulatively it might afford a proof of guilt of an accused person. Counsel had been correct in stating that the onus of proof was on the Crown, his Honour continued. If there was any doubt the accused were entitled to the benefit of it. He would also warn the jury to exclude from its mind any other knowledge than that secured during the revelation of evidence by witnesses. The matter should be approached impartially. Each charge had to be considered separately and in the light of the evidence applicable to the charge. It would be wise to consider first the charge of improperly interfering with Shine’s remains in relation to McKay and him alone, then the charge of arson. When the jurymen considered the two counts in relation to McKay, then they should consider them in relation to Talbot and the evidence against him. They then should turn to the third count, conspiracy to defraud, which had certain special features. “The law says that either both have to be convicted of conspiracy or neither,” his Honour said. “The charge is that McKay and Talbot conspired each with the other. You will be careful to avoid feeling that if you find the accused guilty on one count you should find him guilty on the second. Consider them independently, although much of the evidence is directed towards both.” DUTY OF CROWN He added that with the first two counts statements by Talbot were not admissible against McKay. It was the duty of the Crown to leave no gaps, but to connect up each link with every other. They might think that the majority of the evidence stood uncontradicted and established the charges which the Crown made. In regard to the charge o£ interfering with a dead human body against McKay, there was evidence not seriously questioned, that McKay inquired on the morning of February 9 about Shine’s burial place and that he questioned Shine’s son about his father’s teeth. There was evidence that McKay hired a rental car and that both the accused made inquiries for a garage at Avondale, although they were living at Freeman’s Bay. McKay was seen leaving Mrs Hearling’s garage with Talbot at 3 o’clock on the Saturday afternoon and after that the sacking bundle was gone. It had been said there was no evidence to show that the bundle was taken at that time, but they might think that a point relatively unimportant. The Government analyst gave evidence that the fire appeared to have attained a heat far greater than would be expected from an ordinary burning of a house. The Crown went on to prove that the body found in the ruins at

Piha was that of Patrick Henry Shine. They might think that the crucial facts were that the remains of a dead body were found in the ruins of the Pih a fire, that immediately after the fire McKay disappeared, that he was insured for £40,000 and that he had a wife and family who stood to gain if he died. They were entitled to consider in the evidence against McKay that when arrested he denied that he was McKay, gave no explanation of his movements, no explanation of his disappearance after the fire and no explanation of how the body came to be there. If satisfied on these points they would find McKay guilty on the count of interfering with a dead body. They would next consider the charge of arson against McKay. For him to be guilty it was not necessary that he should have set fire to the place with his own hands. If they found him guilty of interfering with the body they might think that the fire was part of a plan and that although he was not actually present he had arranged for the fire to take place. As far as Talbot was concerned they would bear in mind the principle that any person who did anything to aid and abet another in the commission of a crime was liable himself to be convicted of that crime. Did the evidence satisfy them that Talbot aided and abetted McKay in improper interference with a dead body and in the burning of the cottage? The Crown relied on the constant close association between Talbot and McKay for 12 years at least and on the close association of the two after they came to Auckland. Talbot was present when the car was hired and assisted in the search for a garage at Avondale and that might make them think that Talbot would inquire why a garage was being hired in that locality. If they found that the bundle was in the car on Saturday afternoon and taken out to Piha, the Crown said that then Talbot must have know that Shine’s dead body was in the car. They would remember that Mr Terry had said there was no proof that the bundle was in the car. Could McKay have taken the body out to Piha without Talbot knowing it?

CONDUCT OF TALBOT So far as the conduct of Talbot at Piha was concerned, both at the fire and afterward, was it consistent with his honestly believing it was McKay Who was burned in the bedroom? The jury might think that depended upon the preliminary question whether Talbot knew Shine’s body was in the car when it went from Mrs Hearling’s garage to the bach at Piha. Some might think his attitude was that of a man who either was upset at the loss of his friend or that, if he knew a fraud was to be attempted, he was anixous that there should be no suspicion aroused. If there were any doubts Talbot should be acquitted of the first two counts. Upon the question of conspiracy to defraud, the jury had to consider only whether the evidence satisfied the jurymen that McKay conspired with Talbot and that Talbot knowingly conspired and agreed with McKay and attempted to carry out the frauds. Upon a request by Mr Noble, his Honour placed a special issue before the jury, namely, did the accused, before they reached New Zealand come io an agreement to carry out the conspiracy alleged in the third count? Mr Terry said he objected to the issue and asked to have his objection noted. He accepted the indictment as it stood. The jury then retired.