JURY DISAGREE

Timaru Herald, Volume CXLIII, Issue 20720, 6 May 1937, Page 11

JURY DISAGREE

DEWAR TO BE TRIED AGAIN SERIOUS CHARGES A jury which tried Clement Lyall Dewar, jeweller, aged 42, in the Supreme Court yesterday on a charge of manslaughter and four of illegally using an instrument to procure a certain result, failed to agree on the major charge and on one of the other counts. On three counts he was found not guilty. His Honour, Mr Justice Northcroft, ordered a retrial which will take place before a new jury this morning. The charges against Dewar were that on January 14 he unlawfully killed Mabel Harding, thereby committing manslaughter; that on three occasions in December he illegally used an instrument on Mabel Harding; and that on January 14 he illegally used an instrument on Mabel Harding to procure a certain result. Mr L. M. Inglis appeared for Dewar, the Crown being represented by Mr W. D. Campbell. Dewar pleaded not guilty. The following jury was empanelled: William Ramsay (foreman), Ernest T. Porter, James C. Watson, Arthur J. M. Leslie, Vernon T. Nicholas, Joseph Giddings, James Milligan, Charles J. Munn, Joseph G. Hamlyn, William A. Warner, Albert W. Saunders, and G. A. Buckley. Mr Campbell, reviewing the evidence, said Mrs Harding, who was a little over 21 years, died suddenly on the night of January 14. It would be shown that her death was due to an Illegal operation. Evidence of Husband Lawrence James Harding, cook, said he had been married about four years and had two children. His wife died on January 14. Witness detailed visits paid by accused to witness’s house in Turnbull Street, and described the

happenings on the night of his wife’s death. Accused asked if there was any brandy in the house, and tried to give some to witness’s wife. He could not get the brandy through her teeth as they were clenched. Witness said he was going for a doctor, but accused said she had merely fainted. Witness again said he would get a doctor, accused replying that there was no need and that she might talk when she was . coming to. Witness said he did not give a “hang" what accused said—he was going for' a doctor. Witness and Dewar left the house, going in opposite directions when they reached Stafford Street. Witness next saw accused in the office of Mr Mcßae, a sollcitot', at 9 o'clock one night, when accused explained that they were both in the case, and he had better squash it. He again saw accused in Stafford Street on February 4, when Dewar again asked him to squash the case. He suggested seeing a lawyer and recommended Mcßae. He said there would be a few pounds in it for him if he squashed the case. Witness did nothing, but saw Dewar again on the night before the case came before the Lower Court. They met in Stafford Street about 10.40 p.m., and it was arranged that witness should sign a statement clearing Dewar on payment of £25. They met again about midnight and witness signed the statement, which was witnessed by A. Fraser, a Gold Band taxi-driver. Witness and Dewar then went to the Police Station, where Dewar handed die statement over. He did not give witness his £25, saying it was blackmail. The statement he signed was not true. Accused Blackmailed To Mr Inglis: Witness'said it was he who telephoned accused and offered to squash the case for £5O. “Do you know why I did it?” he asked. Mr Inglis: Perhaps you can explain to the jury.—l want to have my say. I made these statements to clear accused as I wanted to get that £25, which would have been absolute evidence that he killed my wife. Mr Inglis: Would that have proved Dewar killed your wife? —In my opinion it would have been conclusive proof. Mr Inglis: It was blackmail?—Yes. Witness denied that he had ever spoken to Dewar about going out with his wife. Questioned regarding the interviews with Dewar, Harding said he had met accused in Mcßae’s office.

Do you suggest that Mcßae told you , to take money to squash the case and , tried to frighten you from giving ( evidence?—l do suggest it. He told me ; I was in the case and as much to ( blame as Dewar, and advised me to . make a statement. He offered to get ( paper and pencil and take it down. Witness admitted that at the in- , quest, on oath, he had made state- ’ ments which were not true. He was very upset at the death of his wife. He thought his wife had died of : heart failure, even though the operation had been performed, and wanted to keep that part of it quiet. Edwin Poulston, father of Harding’s wife, told him how Harding had come to ask him to ring for a doctor. He and Mrs Poulston went to Harding's house and were sitting there when they heard someone coming up the path. They called out and a tall man ran down the path. Andrew Fraser, Gold Band driver, gave evidence of having taken Dewar from Cannon Street to the corner of Turnbull Street on the night of January 14. Leslie J. Storey, cabinet maker, and Thomas R. Winton, of Turnbull Street, said they saw Dewar at the corner of Cliff and Turnbull Streets between 7.30 and 8 p.m. on January 13. Dr. R. D. King testified to having been called to 10 Turnbull Street, where he found Mrs Harding dead. Death was due to heart failure due to air getting into the veins. Corroborative evidence was given by Dr. A. Pearson, pathologist at Christchurch Hospital. Detective E. M. Thomas described his investigations following the death of Mrs Harding. Detective N. Kempt gave corroborative evidence. The Crown case was then closed. Alibi Provided Charles Stanley Fairbrother, butcher, said that his shop was open until 9 o’clock on New Year’s Eve. He went away for tea about 7 o’clock, and when he returned about 10 minutes later Dewar was in the shop waiting for a long distance telephone call. He waited there until about 9.45 p.m., but the call did not come through. Dewar did not leave the shop before that. Douglas G. Fairbrother, brother of the previous witness, testified that

Dewar was in the shop between 7.30 and 8 p.m. on New Year’s Eve. Witness returned about 9 o’clock, when Dewar was still in the shop. He and Dewar went for a walk together from about 9.30 till 11.30, during which time Dewar was never out of witness’s company. To Mr Campbell, witness said Dewar was a friend of his. He was not sure, but he thought Dewar had asked him about being with him on New Year’s Eve some time before the case in the Lower Court. Questioned by his Honour, witness later said he thought Dewar had spoken to him about it since the Lower Court proceedings. William Henry Cowles, carrier, said that on one night in the middle of January, he arranged to meet Dewarnear McGruer, Davies, about 7 or 8 p.m. Dewar came up to the corner of Cliff Street in a Gold Band taxi and went with witness to the Park bowling green. They often went up together, as they were members of the Match Committee and had to arrange matches. His Honour: You came in from the Bowling Club to meet him in your car? —Yes.

Why didn’t you go right to his shop in Cannon Street?—l thought he would be walking up the street. I didn’t know whether he would come round past the Post Office or through town. And you waited for 20 minutes?—Yes.

Evidence of Accomplice Addressing the Jury, Mr Inglis said the evidence of Harding was all that connected Dewar with the charges. Harding was an accomplice, and it was desirable in law that the evidence of accomplices should be corroborated. Harding's evidence was not corroborated in any material particular. He had told three different stories. There was not a shred of evidence, other than Harding’s, that Dewar was ever nearer to Harding’s house than the corner of Cliff and Turnbull Streets. There were a hundred and one reasons, all innocent, , why Dewar should have been in that vicinity. The Poulstons said they saw a tall man at the house on the night . of January 14, but they could not , recognise him. It might have been anyone.

Mr Inglis appealed to the jury not to allow any recent publicity given abortion in the newspapers to influence them; also he hoped they would not be influenced by sentiment the other way. He asked them to decide the case solely on the evidence submitted to them. Referring to Harding’s evidence regarding, an interview with Mcßae, Dewar's solicitor, Mr Inglis said if any solicitor had done what Harding said Mcßae had done, it would be not only gross misconduct, but would amount to an attempt to suborn a Crown witness. “I leave it to you to decide whether a solicitor would do that. It would be grossly unprofessional and grossly criminal.” There was the strongest motive for Harding telling a false story and he suggested that the statement he signed clearing Dewar was really his last and true statement. Harding admitted he had blackmailed Dewar. “If you are prepared to. convict Dewar on the evidence of a man who has sworn falsely, who was an accomplice in the charges with which Dewar is faced, and who has blackmailed, well, do it, but I suggest it would be a pollution of justice,’’ said Mr Inglis. Mr Campbell reviewed the evidence and suggested that, although Harding had been an accomplice and had perjured himself, he would have needed a very fertile imagination to have invented a story in such detail as he had. What was there, other than the fact that Dewar had been in the vicinity, to prompt Harding to hang the whole thing on Dewar? Referring to the alibi supplied by the Fairbrothers for Dewar, Mr Campbell said his Honour would probably direct the jury on the point that it was an established rule in law that if a man had an alibi he was bound to disclose it at the earliest possible moment. The Fairbrothers, although they knew of the alibi when the Lower Court proceedings were taken, they had not said anything about it until the present trial.

His Honour Sums Dp His Honour prefaced his summing up by defining the charge of manslaughter and distinguishing it from one of murder. He remarked that the Crown could have charged accused with murder on the grounds that he had performed an illegal act, knowing that it might endanger the woman’s life, but they had been lenient. Discussing the credence to be given Harding’s story, he said it was perfectly true, as council had pointed out, that Courts viewed with alarm almost the evidence of accomplices and Harding was an accomplice. That did not mean that a person might not be convicted on the evidence of an accomplice, but it was their duty and a common thing for judges to warn juries that they should hesitate to convict on such evidence unless it was reliable and corroborated. His Honour pointed out that Harding’s story was corroborated in that, on the night of January 13. when Harding said Dewar was to perform the operation but the wife’s parents were at the house and he signalled Dewar to keep away,, a cabinet-maker, Storey, saw Dewar in the vicinity. Mr Poulston, the woman's father, also said that, shortly after Harding came to the house, he ieft again for a few minutes. There was also the evidence of the taxi-driver who brought Dewar from

Cannon Street to the corner where he would go down to Harding’s house. He said the time was between 8.20 and 8.25, but Harding said he left bis place of business at 8.20 and went home. Harding then walked twice round the block and said he did not see Dewar. If Harding’s times were right, there was some weakness in the Crown case there. The evidence of Cowles regarding his meeting Dewar at the corner was indefinite and unconvincing. Detailed Story On the night of January 14, after Harding had left the house, the Poulstons said someone came along and, when they called out, made off. said his Honour. The significance of that was that it might prove that someone other than Dewar had been connected with the crime. If Harding’s story was untrue he must be an extraordinary liar to tell such a long and detailed ■ story. Harding had told of a series ! of occurrences which were quite un- ■ necessary if the story was invented to shield himself and put the blame on I Dewar. His Honour endorsed Mr I Campbell’s remarks regarding alibis ; and said it was for the jury to say, after hearing the Fairbrothers’ story, t whether they thought Harding’s was t correct. Referring to the incident re-

garding Harding’s statement to clear Dewar, his Honour said Harding’s version of it was not helpful to the prisoner for the original suggestion that he should withdraw his earlier statements came from Dewar and his solicitor who importuned Harding by telling him of the blame attachable to him in the case. The whole case rested on whether the jury believed Harding. If they disbelieved him or had an honest doubt they should acquit. The jury retired at 3.17 and returned at 7.35 with a verdict of not guilty on the second, third and fourth counts, and announced that they could not agree on the first and fifth counts. His Honour asked if there would be any possibility of an agreement if more time were taken to consider the case. The foreman said it was quite definite that no agreement could be reached. On the application of Mr Campbell his Honour ordered a re-trial to take place this morning.