COOPER CASE

Timaru Herald, Volume XCVIII, Issue 18084, 29 May 1923, Page 7

COOPER CASE

Leave to Appeal Refused

COURT’S DECISION.

To be Given in Writing.

PRESS ASSOCIATION TELEGRAM WELLINGTON, Monday. The Court of Appeal this morning heard argument in the matter of Hie application by Daniel .Richard Cooper j for leave to appeal to the Court < f Ap- , peal against liis conviction for murder. At Cooper’s trial his counsel, Mr , Treadwell, asked Mr Justice Chapman ! to reserve for the opinion of the Appeal Court tiie following questions: (1) A point as to the admissibility against Cooper of evidence relating to the disappearance of »ny other child than Miss McLeod s child, the one for the murder ot . whom lie was indicted. (2) As to whether Cooper and his wife should not have been tried separately. Justice Chapman, however, rer iied to reserve these questions, admit ,ed Iho evidence objected to, and r./lusecl a separate trial. A motion for leave to appeal to the Court of Appeal was therefore hied this morning before the Court of Appeal. Mr C A. L. Treadwell, with him Mr Hanna, appeared iu support of the motion, while Mr W. C. iVlaeG'jgor, K.C., Solicitor-General, and with him Mr Macassey, for the Crown, opposed. On the Bench were His Honour Sir Robert Stout, Mr Justice Hoskmg and Mr Justice Salmond. . Mr Treadwell, for Cooper, said he did not intend to argue the question of a separate trial. As to the admissibility of evidence, he submitted that the evidence objected to was not admissible, on the ground that there was no pi’nia facie case of murder by the Coopers or either of them, at the time when Midi evidence was tendered by the Crown. Mr Justice Salmond: You say that such evidence is not admissible unless there is sufficient evidence to convict without it? Mi - Treadwell: Yes. . Sir Robert Stout: Then it would be useless admitting such evidence at all.

“ CORPUS DELICTI.” Mr Treadwell, continuing his argumerit, said that unless the corpus delicti was established there was no case to go to the jury. . Mr Justice Salmond: What is a “corpus delicti” ? Apparently it m the offence in itself independently of the question of who committed it. Mr Treadwell: Yes. . . Mr Treadwell, in continuation of his argument, dealt with legal authorities, which, he contended, supported Ins propositions. There was, lie said, no evidence at the time the evidence objected to was tendered that Miss McLeod’s child was dead, much less murdered. The identity of the body found Tvas not proved. It was only after the facts of tlie murder liad been established that evidence as to tlie other bodies being found would be adduced for the purpose of, proving that accused was the culprit. Mr Justice Salmond: Must there be a prirna facie case of felonious intent for evidence to be admitted ? Mr Treadwell: There must be proof of murder. „ ~ , Mr Justice Salmond : You say that evidence is only admissible to confi: m a prirna facie case of felonious inteim in a case which is ready to go to the jury? Mr Treadwell: Yes. Mr Justice Salmond: Must there be a prirna facie case on which tlie accused could be convicted? ' Mr Treadwell contended further that the Crown could not call evidence of similar but unconnected facts to prove tlie main fact on which the Crown relied The evidence as to Miss. Cornick’s child was, he said, inadmissible in that it did not tend to prove intention to commit murder.

REX V, DEAN. Counsel said that in the well-known New Zealand case of Rex v. Dean (a baby-farming ease) the body of the child in respect of which the charge of murder was laid had been identified before the evidence as to the discovery of the other bodies was admitted. In Cooper’s case the body of the child was not identified.

Sir Robert Stout: Surely there was evidence of identification? Mr Treadwell: It is submitted that there was no reasonable evidence of identification. There can be reasonable doubt that identification was not established, and could not ho established, by the evidence. Continuing, Mr Treadwell said that to establish' a prima facie case the evidence must go a long way farther than, for instance, in a charge of concealment of birth. Even a confession of murder would not be said to establish a prima fadie case of minder against the person maldne the confession. Mr Justice Salmond: What authority have you for that statement? Mr Treadwell referred to legal authority on the law of evidence which,_ ho maintained, supported his proposition. There must, he concluded, be cogent evidence and not mere speculation to establish a prima facie case of murder. In Cooper’s case such evidence was not present. SOLICITOR-GENERAL’S REPLY.

Mr MacGregor, K.C., SolicitorGeneral, for the Crown, said that Mi-

Treadwell’s submissions were based on a misconception of the law. These contentions were, lie said, disposed of in the New youth Wales baby-fanning case of Makin v. the Attorney-General. The true position, he said, was that in proper cases of evidence similar but unconnected facts could be' admitted to show that the accused was guilty ol: the particular crime charged. Cooper’s was such a case. In Cooper’s statements lie bad admitted receiving the children, and he had even used the words “system and business.” Why should not the Crown show what had become of the children? Mr .Justice Salmond : That is the cpiestion we have to decide. 'The legal position in New Zealanc., said the Solicitor-General, was set out in the case of Ilex v. Whitta (a case ol a charge of bookmaking). 'That case, he said, showed that evidence ol similar but unconnected fads was admissible to prove Iho main charge. Mr Justice llosking:. Could the Crown have set out anil given evidence of these other bodies without lirst giving evidence of the main fact charged against Cooper? The Solicitor-General : Tt is submit led that it could. , Mr Treadwell addressed Ibe Court shortly in reply, and said I hat the case of Makin v. iho Attorney-General did not touch the ivysenL case. At the conclusion of the argument the Chief Justice said that the Court was of opinion that leave to dd’C-al must he refused, hut that in view ol I he gravity of the case the reasons ol the Court would be given in writing, either on Tuosdav or Wednesday next The Conn of Appeal 1 hen adjourned until 10 .'lll o'clock 10-morrow luornuir