NO EVIDENCE FOR DEFENCE

Timaru Herald, Volume CXXXVII, Issue 19829, 19 June 1934, Page 6

NO EVIDENCE FOR DEFENCE

COUNSEL ADDRESSES COURT TRIAL OF W. A. BAYLY By Telegraph—Press Association AUCKLAND, June 18. The cross-examination of Professor F. P. Worley was continued in the Supreme Court to-day, when the trial of William Alfred Bayly, a Ruawaro farmer, charged with murdering two ; neighbours, Samuel Pender Lakey and Christobel Lakey, at Ruawaro, on October 15, was resumedThe Crown case closed this morning, and no evidence was offered by the defence. The Crown Prosecutor opened his address to the jury. The Crown Prosecutor, Mr V. R. Meredith, with him Mr F. M’Carthy, is prosecuting, while Bayly is represented by Messrs E. H. Northcroft and L. P. Leary, instructed by Mr R. B. Lusk. Mr Justice Herdman is on the Bench. Mr Northcroft questioned Professor Worley first on the method adopted by witness to make a comparison of the knife cuts on the two pieces of timber. Witness said he had found it necessary to make an enlargement of 11.4 of the timber from Bayly’s to get a comparison with the timber from Lakey’s, which was enlarged 8i times. “I then cut one photograph and placed it on the other, and found a very remarkable agreement,” continued Professor Worley, who then described the method of calculation he used in reaching a conclusion that the chances of coincidence were one in a million. “I don’t know if the jury understands this. I do not myself,” observed Mr Northcroft. “I do not know if I can make the calculation of probability simple. I will make it as simple as I can,” replied Professor Worley. After witness had completed his explanation, he stated that if there was a line, which entirely disagreed, and there were no other means of accounting for that disagreement, then his faith in asserting the absolute identity of the two would be very seriously shaken. “That is very important,” remarked counsel. Re-examined by Mr Meredith, witness said that he had found no divergences which would shake his conclusion. There was a very close similarity in the grouping of the two sets of lines in the knife marks. Gunsmith’s Opinion. Gerald Gregory Kelly, sports dealer, of Auckland, said that he had a lifetime experience of firearms in New’ Zealand and Australia, and had been, until recently, in charge of the Colonial Ammunition Company’s premises at Auckland. He had been given a Winchester rifle on November 7, when he cleaned the bore. On December 6, Detective Sneddon showed him an ICI cartridge shell. Witness fired eight shots of the same ammunition from the rifle. A comparison with the test shells showed the shell, exhibit 70, which had been given to him, had been fired from the same rifle. In reply to Mr Northcroft, witness said that all the test shells show’ed the same characteristics. Witness had no microscope. He had fired no other Winchesters, nor had he compared the shell, exhibit 70, with shells from other Winchesters. Recalled, Senior-Sergeant E. W. Dinnie identified formally certain prints as made from photographs taken by him. J. J. Carroll, a surveyor, who was also recalled, gave short evidence regarding the boundary fences of Lakey’s property, and the position of the legal road into Bayly’s. Mr Northcroft stated to his Honor that the position was that Lakey’s fences had been carried to the lake across Bayly’s legal access road. Detective T. W. Allcopp, who was put in the box, stated that the fences w r ere extended across to prevent cattle getting from one property to the other.

The Crowui case then closed shortly after 11 o'clock, when an adjournment was taken. Mr Northcroft intimated that he lvould not call evidence. Crown Prosecutor’s Address. Mr Meredith commenced his address to the jury at 11.20 a.m. After remarking that no one had seen Lakey and Mrs Lakey killed, Mr Meredith quoted the remarks of the Lord Chief Justice on the value of circumstantial evidence. The jury should not be concerned with the question of motive, but with the evidence. The conversations with Stent, the quarrels with the Lakeys, the removal of the cream-stand all showed that Bayly harboured a deep resentment against Lakey and his wife. Mr Meredith then briefly recapitulated the Lakeys’ habits, which, he said, would be known to Bayly, who was their nearest neighbour. “If anybody had the opportunity to commit this crime, Bayly was the man,” declared Mr Meredith, before reviewing the evidence of the experts, whose views, he took it, the jury would accept. Mrs Lakey had been struck two blows, and placed alive in the water, where she died of suffocation. “If that happened to Mrs Lakey, it is quite clear that she was struck unconscious by Lakey or some other party,” continued Mr Meredith. If it was not Lakey, it must have been a third party. There was blGOd on the implement shed, which did not come from Mrs Lakey. That blood came, obviously, from Lakey. On the wheels which were found down in the paddock, was blood which was either that of Lakey, or a third party. “So either that blood was that of Lakey, who was wheeled by a third party, or of a third party, who was wheeled by Lakey. But there is no one else missing,” continued counsel. It was obvious that the third party was familiar with Lakey’s house, but did not know the exact details where Lakey placed the cream cans, and made a mistake. The only object in taking the clothes, guns, and boots from the house, was to give rise to the theory of Lakey’s disappearance. Mr Meredith then turned to the sledge marks, which, he said, were clearly made by Bayly’s sledge. In regard to Bayly’s explanation that he had gone to inspect a pole, counsel asserted that the evidence showed the pole was as taut that morning as any ! other pole there. Therefore, there was no reason for Bayly to drive up. Further, continued counsel, on Bayly’s sledge, there was human blood. The fact that there only a small quantity was of no significance. After dealing with Lakey’s clothing, watch, and cigarette lighter, Mr Meredith said that the bones were those of a muscular, middle-aged male, such as Lakey. In Bayly's sheep-dip ■was found a tuft of hair similar to Lakey’s, while in the orchard were found fragments of materials of similar clothing to that worn by Lakey. A cigarette lighter, which must, beyond probability, be Lakey’s, was found in the sheep-dip, while under the car shed,, were found

parts of a watch similar to Lakey’s. “So you have round Bayly’s house, bones corresponding to Lakey’s, remnants of cloth corresponding to Lakey’s clothing, a cigarette lighter clearly Lakey’s, teeth corresponding to Lakey’s, burnt footwear corresponding to Lakey’s, a watch the same as Lakey w'ore,” continued Mr Meredith. “Lakey disappears. You have a trail of blood down to Bayly’s fence. Then these gruesome exhibits round Bayly’s house are found.” Drum and Embers. After stating that all the bones had been found mixed with wood charcoal. Mr Meredith exhibited a diagram showing the parts of a skeleton which had been identified by experts. The bones were burnt with actual flesh on them, he said. “You are forced to the conclusion that those bones, with the flesh on them, are those of the unfortunate Samuel Lakey.” Mr Meredith then recapitulated the evidence regarding the exhibits taken from Bayly’s cowshed. At the time it is suggested that the burning could have taken place, two men saw a cloud of heavy smoke over Bayly’s cowshed. A drum and corrugated iron sheets were found on Bayly’s property which were capable of performing such a burning. It was known by the experts that it was a matter of comparative ease to burn a body im a drum. Before the police recovered the drum, it was cut in two for some reason. It was suggested that this was done to conceal its identity. In Bayly’s separator room was a wood cut, which had been concealed by smearing oil on it. The suggestion was that in taking the body through the room, the stain was left, which it was necessary to remove. If the jury reached the Conclusion that Lakey’s body was burned in the cowshed, it was inevitable that it must have been done by Fayly. “How could anybody take the proceeds of that burning and dig the garden at Bayly’s back door?” asked counsel. “Can it be suggested that a person other than Bayly, could bring the body over from Lakey’s, burn it, wait for the embers to cool, and then bury them at Bayly’s back door?” asked the Crown Prosecutor. Mr Meredith then referred to the cartridge case which fell from Bayly’s pocket, and whi-T had been identified as coming from Lakey’s rifle. If that pea rifle had not been used and handled, it would not have been necessary for anyone to remove it from the house, he said. There was also the question of the other cartridge, which was found in Lakey’s garden, and which was fired from Bayly’s Spandau rifle, which he had only possessed for three days. “Whether the Spandau was first fired and then jammed, I do not know, but it is not part of the Crown’s case to establish the sequence of events.”

Cuts on the Wood. e Proceeding, counsel, who referred next to Bayly’s trousers, said that * when Bayly’s knife was first seen it j* had a razor edge, but when it was next 1 seen, the blade had a changed char- c acter. Leaving aside this particular * knife, there had been a shave mark J on Bayly’s separator room, apparently through the cutting off of a patch r of blood there, and also a shave mark ‘ on the wheels, but the wood was of a particular hardness, which did not give an impression of the knife blade. There was also a cut mark on Lakey’s implement shed. If they were made j at the same time, the cuts had been 1 made for the sanu purpose. The opin- , ion of the scientific experts was that } the cuts in Bayly’s cowshed and in , Lakey’s implement shed, were made by . the same knife. “Who could make the < cut marks in Bayly’s separator room - other than Bayly himself?” asked Mr ' Meredith, who said that there was not the same certainty that the knife pro- < duced had made the cuts. However, if the knife had been sharpened since, , there were still notches on it, com- , patible with the marking of the marks. • After adding that there was human blood in the serrations on the tack of the knife, Mr Meredith stated that the theory of Lakey’s disappearance had been promulgated by Bayly at the earliest opportunity, when the searches were commenced. Bayly knew that if he put the guns in the swamp they would be discovered. Accused had endeavoured to fasten suspicion on to Wright by reporting there had been a prowler on his place to the police, but this had failed, because a police officer was billeted ut Wright’s. “An innocent man does not want to raise suspicion wrongly,” declared the Crown Prosecutor. When Ba ly wrote the letter to his wife, the police had taken Iris shovel, the two parts of the drum, and had also suggested emptying the sheepdip. The Crown's Contention. “Bayly would then know, if he were guilty, that the police were going to get the whole story,” continued the Crown Prosecutor. 3ayly had not committed suicide or attempted to hide, but what caused him to change his mind was not known. “Every fact points to the conclusion that Lakey was taken to Bayly’s and burnt there,” continued Mr Meredith, who said that the Crown held that Bayly went to Lakey’s, struck Mrs Lakey, and when Lakey came up, shot him. Bayly tore a sack off the implement shed to staunch the bleeding of a cut or to wipe a splash of blood off the implement shed. Lakey was taken on the wheels to the boundary, put in Bayly’s drum head first, burned, and the ashes and remnants were scattered. “If it had not been that the cows were turned out in that paddock, and that other neighbours had not seen there was something amiss at Lakey’s household, no inquiries would have been set afoot until the following morning, when the cream carrier would have seen that no cream had beer, put out,” concluded Mr Meredith. “If that other 24 hours had been given to Bayly, the utter destruction of what was left in the drum would have been such that no one on earth would ever have found a trace of Lakey.” Mr Meredith concluded his address at 12.50, after speaking for an hour and a-half. When the news spread that counsel for the defence would address the jury this afternoon a large crowd gathered outside the Court during the lunch adjournment. As usual only a limited ; number were permitted inside, with a 1 result that queues of men and women waited outside throughout the after- ; noon. During the lunch adjourn- | ment, a start was made on 1 clearing the courtroom. Mrs W. A. Bayly was present for the first time | in. three weeks. [ Mr Northcroft’s Address. Mr Northcroft said that he was } bound to refer to the extraordinary ‘ length of the case, and the strain bound to devolve on counsel for the * defence was greater than that on the ; Crown Prosecutor. I “I have been fortunate in having " the extremely able assistance of Mr f Leary,” he proceeded. Counsel then \ intimated that he was bound to discuss j the case at great length, although he 1 realised the position the jury had been placed in during the last four weeks. The case ad been presented in elaborate detail, which placed counsel f for the defence in a position of havt ing to deal with every matter, even though it migh* appear to be unq important. , t Counsel then said that he proposed i to deal with culpability in homicide

cases, which were divided into two classes—murder and manslaughter. In referring to the definition in New Zealand of each crime, Mr Northcroft said “unless you are satisfied that the circumstances revealed here come within those provisions, even though there has been a killing, they do not come within the class of murder—they fall in the category of manslaughter.” Mr Northcroft then declared that the elements of journalism shown in this case were of a sensational order. “I cannot escape feeling that the publicity this case received long before it reached the Police Court and also the publicity it received when it reached the Police Court, has had a very damaging effect on my client,” continued counsel. “There has been an extraordinarily morbid interest in this case by the public itself. I feel that every one of you before going into the jury-box has heard extraordinary stories regarding this case.” After warning the jury to disregard all it had heard outside the Court, counsel said the verdict w*as not a matter of collective responsibility, but individual. “I am confident that with this waiving there is little danger that the view iVld by the public will affect your verdict in the slightest degree,” proceeded counsel, who then dealt with the respective duties of the Crown and the defence, laying emphasis on the onus of the Crown to prove its case. “Our British system does not require that an accused person should come here to prove his innocence. Whatever suspicions the jury might entertain, if the Crown failed to prove its case the accused must go free,” continued Mr Northcroft, who dealt with the difference between direct and circumstantial evidence. If any circumstances yielded themselves to any alternative then one conclusion could not be arrived at, while if any one point of circumstantial evidence could not be arrived at the whole evidence must go. If one link in the chain of circumstantial evidence was incapable of the task of proving guilt, the others were valueless. The Question of Motive. “Ypu must be careful to distinguish between matters of fact and matters of opinion,” declared counsel, who said he would then turn to the question of motive. “I suggest that unless you can see a proper motive suggesting that the person concerned did it, the suggestion of the Crown will be repulsive to you.” Bayly was a happily married man with two children, comfortably placed on a farm. He was friendly with the better of his neighbours and courteous with the police. He was a man of moral courage who told the police openly and candidly what his real relations with Lakey were, and he had not been shown to be untruthful on any point. Mrs Bayly’s character was also important, because if the Crown case was believed she must have known of the happening

inn Bayly’s farm that night. The evidnce showed that the relationship beween Lakey and Bayly was friendly ntil August, 1932. Up till then they hared a common outlet through ,akey’s. In August there was some uarrelling over sheep. Bayly had a ierfect right to require Lakey to open p access by removing fences. As shown y the evidence Bayly had then acted a a decent manner, avoiding further nimosity by getting access without reusing Lakey to remove the fences. The Trouble in 1932.

Counsel contended that there was no evidence to show that the cream stand removed by Bayly was Lakey’s property. It was, he claimed, Bayly’s stand. The whole trouble which arose at Christmas. 1932, was due to Stent, who then worked for Bayly. It was quite believable that Bayly went to Lakey’s, and at Stent’s request, who had fallen foul of Mrs Lakey. Bayly had never done what Stent alleged he declared that he would do, namely, cut Lakey’s fences. The quarrel over the bull which was related by the witness Baldick, was not of the serious nature which the Crown alleged. Baldick had admitted that when Bayly referred to Lakey’s physical infirmity, Lakey had laughed. “If matters of that sort are to be presented to jurors, it will be a desperately unsafe position for any farmer who has quarrelled with another farmer if that farmer should come to an untimely end,” declared counsel, who then said that Bayly’s remarks to the police had been perfectly candid. When asked what he knew about Lakey’s disappearance he had admitted candidly that he had nothing to do with the Lakey’s. “Preconceived theories are the most deadly enemies of all inquiries,” quoted counsel reading from a Continental legal work.

Preparation of Meal. Mr Northcroft then turned to the appearance of Lakey’s house when the police arrived. The indications showed Mrs Lakey had gone a long distance toward preparing the evening meal The presence of a rice custard showed that Mrs Lakey had come from the cow shed and prepared and cooked it. As a wood fire did not last long, it was absurd to suggest that the potatoes had been put on to cook before she went to the shed. On the evidence it was clear that Mrs Lakey must have, been in the house going about her domestic duties for the time that potatoes took to cook which was about 20 minutes. “I suggest to you that there is abundant evidence that the meal had been cooked and was just about to be consumed,” continued counsel, who declared that the evidence also showed that Lakey had finished the day’s work. The cream had been brought up and put in the cans while his pipe, when found, was filled and had been lighted, a significance that would be dealt with further later. The Crown case was that Mrs Lakey had been assailed and Lakey attacked when he arrived, from the cowshed. The distance from the house to the cowshed was not so great that one would not expect Mrs Lakey to call her husband’s aid. Abrasions on Body. “I suggest that all the abrasions on Mrs Lakey could quite well have come from being dragged into the pond or if in the pond, being dragged to another position,” submitted counsel, who said that two blows of the nature described bv the Crown, if they were knock-out blows, were not only unnecessary but impossible. Had Mrs Lakey been placed face downward with the arms crossed, the body bearing on the arms before rigor mortis set in they would have been crushed into the chest where they would have been found when the body was lifted next morning. It may be that Mrs Lakey fell and received one or even two bruises on the chin and died in that position and her body was not taken to the duckpond until long after death supervened, continued Mr Northcroft, who stated that Mr Meredith had said that the body bore bruises but no cut, while Detective Allsopp had said she bore a cut. The Crown case was that she had been struck a blow with the fist and not fallen against a tub or other object, pne might expect the man responsible to shoot both and place the bodies in such a manner as to suggest suicide and murder or double suicide, place the bodies in the house and then set fire to both.” Is it likely that murder could be committed in the manner indicated by the Crown, that is to knock-out Mrs Lakey when she was free to call out and then wait for Lakey to destroy him? Why incur the risk of waiting when Mrs Lakey might come to warn Lakey. “I have always made it clear that the sequence of events that night was such as we cannot say definitely how they occurred,” observed Mr Meredith.

"The Crown is quite incapable of putting before you any sensible theory how this thing could have occurred, replied Mr Northcroft, who declared that whoever killed Mrs Lakey could not have placed her in the duckpond before Lakey came up to the house as he would have seen her on his way with a result that the ambush would have failed.

The Cartridges. Counsel then commented on the finding of the cherrywood pipe in Laxeys garden. “It is utterly impossible for the Crown to invite you on the evidence to take the view that Mrs Lakey was struck down by some man who then proceeded to destroy Lakey continued counsel, who then dealt with the two , cartridge cases. The Crown had said nothing in the Police Court about the shell found in Lakey’s garden, which was supposed to fit Bayly s rifle. The j only inference which can be drawn is that Bayly was there with his rifle. If he had a rifle we can believe that he had ammunition no matter for what reason he was carrying the rifle continued counsel. In those circumstances how can anyone fit in with the use by Bayly of his rifle his action in taking Lakey's rifle and using it, then conveniently carrving off the spent shell m bis clothes so it can be found by the police. No evidence had shown that Bayly s rifle had jammed as suggested by Mr Meredith. Counsel for the de.ence could get no information about two shells from the Crown. The Crown today had no explanation of the two shells. “You have heard experts who. with supreme confidence, have told you that the cartridge case found at Bayly s was undoubtedly fired from Lakeys rifle, also equally undoubtedly that the said cartridge found at Lakey's was fired from Bayly’s rifle,” continued Mr Northcroft. The cartridge found at Lakey's was old and tarnished. Bay-> had only acquired the rifle prior to the Thursday. According to the Crown this cartridge had been fired on Sunday yet within a few days the shell became old and tarnished. Counsel then suggested that during the handling of tne many exhibits the two shells could have been mixed, an explanation which absolved Bayly by leading to the conclusion that the shell found in Lakeys had been fired from Lakey’s rifle and the shell found in Bayly’s had been fired from Bayly’s. “I suggest that the evidence given by the experts is impossible of acceptance,” concluded Mr Northcroft. The Court then adjourned until tomorrow morning, when Mr Northcroft will continue his address.