BICHENO PROVES AN ALIBI

Taranaki Daily News, 16 August 1933, Page 3

BICHENO PROVES AN ALIBI

ACQUITTED OF NEGLIGENCE WAS AT WAITARA WHEN HILL HURT JUDGE SUGGESTS DOUBT RAISED. EXPLANATIONS OF THE DEFENCE Aftei- Mr. Justice Ostler had suggested in summing up that it would be dangerous to convict on the circumstantial evidence offered, the jury yesterday acquitted Leonard Bicheno on a charge of driving a car negligently, thus causing bodily injury to Harold William Hill on the Main North Road, near Motonui, on the night of April 3. At the conclusion of the evidence for the defence setting up an alibi his Honour asked the Crown Prosecutor whether there was not too much doubt to ask the jury to convict, but Mr. R. H. Quilliam said he could not take that responsibility. The Crown maintained the explanations offered were, inadequate. The case was therefore allowed to proceed to the jury. Mr. L. M. Moss did not address the jury for the defence, contenting himself with the submission that there was no case to answer. The jury was out for 2 hours 8 minutes.

Opening for the defence Mr. L. M. Moss said the nature of Bicheno’s answer to the charge had been disclosed during the Crown’s case. It was a full and complete answer and the jury should have no hesitation in finding a verdict of not guilty. Bicheno had adhered right through to the original story he had told Dr. Barclay and Constable Mills. It was remarkable that Hill said the, first question Bicheno asked him was whether he was drunk. If that were so it was the conduct either of a clever criminal or a cool customer, and counsel suggested that after hearing Bicheno the jury could not say he was one or the other. Regarding the hairs found on the car, Mr. Moss said they could not have come from tire head (Dr. Lynch’s evidence being against that) or the backs of the hands, as they were 1J inches long. If they were Hill’s they could have come only from the back of his leg—and then only through the one tear in his trousers. Counsel pointed out that a car was liable to pick up hair with the dust as it sped along, also from men working underneath in a garage. GREATER INJURY EXPECTED.. Dealing with the damage to the car Mr. Moss asked why, if the bumper bar struck Hill on the upper third of his thighs, a greater injury than bruising had not been done—especially as the force of the impact was so great that the bumper was alleged to have been broken. As a matter of fact the bumper was broken some time before. Counsel urged that there was no implication of ■guilt in Bicheno’s action in taking Hill to the doctor and then driving the policeman to the scene of the accident early in the morning. A significant fact for the defence was that Hill complained of being cold. This indicated he had been on the road long enough to be chilled. That brought him to the main point of the defence, said Mr. Moss—the time factor, which gave a conclusive answer to the case. In fact, if the evidence on this point had been before the Court already, counsel would have asked that the case should be withdrawn from the jury. Hill was seen on the Waitara bridge by Kendrick at 10 p.m. Hill had said he might have left about 10.30 and that he was in O’Donnell’s saloon about half an hour; but the saloon was closed that night at 10.15 and O’Donnell had said Hill had not been there. O’Donnell passed Hill on the hill about 10.20 and had to swerve his car to avoid him where he was walking on the bitumen. From that point to the scene of the accident was about It miles or less. Hill should have covered* that distance in 30 minutes, so that he would have been knocked down about 10.50. Bicheno, however, was then still at Waitara, for he did not leave the town until after 11.30 p.m. EVIDENCE BY BICHENO. Bicherio in evidence said he was for 37 years a teacher and for the past 4J years was head teacher at Urenui. He had been driving 6J years. He bought his present car in October, this being the first geared car he had driven. The second time he had driven it, early in November, about midnight, he reached home from New Plymouth on a very stormy night. The track to his house was grass, very uneven, with a horse track down the centre. The car was skidding and he decided he would go through the narrow gateway and shelter the car under the hedge. He went up the race with the car to the fifth post past his own proper gateway. The surface was so bumpy that he was thrown out of his seat and temporarily lost control. The car ripped some battens off the fence and the bumper smashed the post. The car was thrown at right angles to the lane, the hedge pulling him up. The scars of the impact on the stumps of the hedge could still be seen for at least five feet. The hedge was doubled underneath the bumper and the valance was pushed back against the axle. Next morning he found one bumper was pushed down and the other up. His son straightened the front bumper with an iron bar and witness straightened the back one at the same time. His son later pointed out that the bumper stay was cracked. Witness took it to Rattenbury’s garage at Urenui, but it had to be repaired in town and witness put the matter off. Eight days before the accident witness noticed that the stay was broken right through; apparently the vibration' had caused the crack to break through. I,EFT AFTER 11.30 P.M. On April 3 he went to the meeting of the Buffalo Lodge in the Soldiers’ Club, Waitara. All the liquor he had was two glasses of ale early in the evening. He left the building about 11.30 with Matt. Erceg and Jack Kibby among others. He drove alone towards Urenui. Two miles on the way, 200 or 300 yards on the Waitara side of the Nikorima crossing, he saw an object on the road. Witness in answer to the Judge here confirmed the statement he had made to the police. It was absolutely true, he said; he would stake his oath on it. Hill was unconscious. Witness first though the man was drunk, but on feeling the blood on him discovered he was injured. He was stone cold. His Honour: Was the blood clotted? Bicheno: The bleedjng had almost St Jto 'said that on leaving Hill for his car at the scene of the accident he walked ahead of the car with the lights on to find a place to turn the car. He found a gateway and on returning he found Hill limping along, almost up to the car. Hill had wanted to be taken home, but in view of the injuries witness insisted on taking him to the doctor. He put him in the back seat and later eot the jack and pump from under the seat. He jacked up the right hand front tyre, which was about half-way down, and pumped it. He had no occasion to take the spare tyre off the back,

HAIRS ON THE CAR. His car had been in three garages, said Bicheno when asked about the hairs found underneath. Rattenbury always got underneath to grease it. Concerning the fact that the differential had been scraped clean, witness explained this by saying he had driven over a heap of dahlias and bulbs at the entrance to his place. The clearance of the car was not sufficient to pass over this without scraping. To Mr. Quilliam: He agreed that whatever motorist hit Hill was guilty of negligence. Constable Mills and Detective Kearney had wanted to find the “fifth post” in the hedge; witness tried to point out to them that it was on the other side. They said it was impossible and practically suggested he was lying. He tried to point it out twice. He showed them the chip off the corner, but they said it was due to the weather and that it was not possible for the car to have done it. He pointed out the battens that had been stripped off. Counsel: You heard the detective deny that? Bicheno: Yes. The trouble was that they did not take any notice of what I said. Counsel: Did they tell you you were lying? Bicheno: They said that what I told them was impossible, which was equivalent to saying I was lying. Counsel: They were determined to catch you by hook or by crook? Bicheno: That was the impression I got. Counsel: Did you show them where the battens were ripped off? Bicheno: Yes, but nothing I said had any effect. Counsel: You think they had a real set on you? Bicheno: Yes. The only way he could explain the wearing down of the screw at the end of the bumper was that the corrugated iron motor shed was built for a narrower car than his. He thought that when driving the car in the screw had probably scraped against the wall more than once. NOT A NEW CAR. Counsel: Do you mean to suggest a scraping contact with corrugated iron could wear the screw down like that? His Honour: Was it a new car when you got it? Bicheno: No. It had done about 3000 miles. His Honour: Then what use is that question? It might have been done before he got it Mr. Quilliam: I was under the impression that it was a new car. (To Bicheno). The police say the mark appeared to have been freshly made. Bicheno: According to them everything was freshly made. Counsel pointed out that the police opinion was supported by two motor mechanics, but Bicheno maintained his view and said that after this .he could “believe that police evidence could be worked up.” He had had three accidents in seven years—two of them this year. On May 16—since this accident—he was convicted of intoxication while in charge of the car; he had not attempted to drive the car. On April 3 he had had another accident—on a very dark night. To Mr. Moss: On May 16 he was having the car filled with benzine at New Plymouth; there were four others in the car. He had asked for a doctor the night before at the police station, but the doctors he asked for appeared to be all away. Mr. Moss: You appear to be unfortunate in your relations with the police? “Since this accident,” said Bicheno. He thought they had a “down on him.” Counsel said that was a wrong attitude to take. Bicheno: I hope I am wrong, but that is my impression. When' accosted on May 16 he was showing the gears of the car to a man with the object of his driving. Witness did not drive the car. Mr. Moss: You were a bit unlucky? Bicheno; Yes. . EVIDENCE OF A SON. Charles Bicheno, farm manager, Canterbury, corroborated his father’s evidence concerning the accident in which the car had been damaged by contact with the hedge and the fence. The corrugated sides of the motor shed were well scored by scraping. He thought this was done by the mudguard and bumper of the car. James Marsh, labourer, Urenui, recalled, helped with the car on the morning following the < accident just mentioned. The valance was damaged and the hedge and fence showed signs of the impact. To his Honour: He did not see the crack in the bumper stay. Lewis Rattenbury, garage proprietor, Urenui, said Bicheno had consulted him in January concerning a crack in the bumper stay; the break was then about half-way through. He advised that it should be repaired then, but it was not done. The valance was damaged as it was now. To his Honour: He greased the car underneath eight days before the accident It was possible it was his hair that was found on the bottom of the car. He had lost a good deal—and skin, too—at various times. The witness bared his arm to the court. Counsel observed that there was a remarkable similarity between- Rattenbury’s arm hair and the hair produced in court. ' ( SAW HILL IN HOSPITAL. Raymond E. O’Donnell, Waitara, said he and Hill had been friendly up till the time of the freezing works strike. He saw Hill in the New Plymouth hospital. One of them brought up the question of Bicheno. Witness had heard from his father that Bicheho was suspected. Hill said he was “pretty sure” it was not Bicheno who knocked him down because he knew Bicheno’s car; it was not a Ford that knocked him down.

To Mr. Quilliam: He knew Hill as a good fellow, but could not say whether he was truthful. He could not account for Hill’s having denied this remark about Bicheno.

Mr. Quilliam: Then one of you must be lying. Who was it? O’Donnell declined to say which one. Mr. Moss: We will leave that to the jury. Richard S. Kendrick, labourer, Waitara, said he saw Hill at the Drill Hall about 8.30 p.m. and at the Waitara bridge about 10 o’clock. They walked up the hill and parted at the pa gates about 10.5. Witness had not seen Hill at O’Donnell’s saloon at 9.45.William O’Donnell said he had pot seen Hill in his saloon that night, but about 10.20 he had to swerve his car to avoid Hill on the bitumen near the pa gates. Hill had appeared as though he wanted to be picked up; he was not walking on the path. To Mr. Quilliam: He would have seen Hill had he been in the saloon. ■ Alfred Brown, New Plymouth, a member of the Buffalo Lodge, said Bicheno, who was perfectly sober, was at the room at Waitara when witness left about 11.25 p.m. “TOO MUCH DOUBT.” Tills concluded the case for the defence, and his Honour asked the Crown Prosecutor whether he did not think there was too much doubt to ask the jury to convict, in view of the evidence that had been given. Mr. Quilliam: That is a responsibility, 1 cannot take. The submission of the

Crown is that Bicheno’s explanation is inadequate to account for the damage to the car.

His Honour: But a man like Rattenbury has said he saw the damage in January/ Mr. Quilliam: But Bicheno said nothing about Rattenbury to the police. They could have madi inquiries had he done so. His Honour: Very well, if you won’t take the responsibility Mr. Moss said he would not address the jury, but he submitted there was not a case to answer.

Mr. Quilliam then proceeded to address the jury. Summing up, his Honour said that in every criminal case the onus lay on the Crown to prove its case; it was not for an accused person to prove his innocence. The Crown before asking a jury to convict must, prove beyond reasonable doubt that the accused were guilty. If there were any reasonable doubt of guilt it was the duty of the jury to acquit. This was an unusual case, for in addition to the questions whether the motorist had been negligent and whether that negligence had caused the injury there was a third question—was it Bicheno who knocked the man down? There was no direct evidence against Bicheno—only circumstantial evidence. His Honour pointed out that circumstantial evidence might be strong enough to convict and that in nearly every murder case there was circumstantial evidence. In .this case, proceeded His Honour, there were the following circumstances: Some human hair was found under Bicheno’s car, a day or two afterwards; the bumper stay was found to be broken, a day or. two afterwards; the valance was found to be dented, a day or two afterwards; mud was found to have been brushed off the under part of the car; Bicheno’s demeanour in front of Dr. Barclay and the police. CIRCUMSTANCES EXPLAINED. ' The damage to the front valance had been explained by Bicheno and he had been backed up by other witnesses; if the jury accepted this explanation that circumstance was wiped out. Bicheno had explained the broken bumper stay and the reason for the mud having been scraped clean from parts of the underneath of the car; these explanations had been supported by witnesses, and if the jury ,accep,ted them those circumstances were wiped out. . Bicheno had. raised an alibi with the support of witnesses, and if their evidence were accepted Bicheno did not reach Hill, until some time after the accident; if the evidence of the last witness were accepted Bicheno did not leave the lodge at Waitara until half an hour, afterwards.

The only thing left in the Crown case was the human hair, which corresponded in colour, thickness and curliness to Hill’s. But Dr. Lynch was careful not to say it was Hill’s hair. His Honour pointed, out that there were 1,500,000 people in New Zealand and there must be thousands of people whose hair in thickness, colour and curliness was similar to Hill’s, “Would it not be most dangerous to convict a man on that evidence?” asked his Honour of the jury. “I would hesitate to hang a dog on evidence like that,” observed his Honour after dealing with the evidence concerning the damage to the car. “If i I were trying this case.l should certainly say there was not sufficient evidence, but you are the judges and must not be guided by my opinion.”

The jury retired at 12.27 pan. and returned at 2.35 with a verdict of not guilty. ; , ’