THE NEWLANDS CASE

Wanganui Chronicle, Volume LXXXI, Issue 18791, 29 May 1923, Page 5

THE NEWLANDS CASE

COOPER’S APPLICATION FOR LEAVE TO APPEAL REFUSED BY COURT OF APPEAL (Per Press Association.) WELLINGTON. May 28. The Court of Appeal this morning heard argument in the matter of the application by Daniel Richard Cooper for leave to appeal to the Court of Appeal against his conviction for murder. At Cooper's trial, his counsel, Mr. Treadwell, asked Mr. Justice Chapman to reserve for the opinion of the Appeal Court the following questions: (1) The point as to the admissability against Cooper of evidence relating to the disappearance of any other child than McLeod’s child, the one for the murder of whom he was indicted; <2l as to whether Cooper and his wife should not have been tried separately. Mr. Justice Chapman, however, refused to reserve these questions, admitted the evidence objected to, and refused a separate trial. A motion for leave to appeal to the Court of Appeal was, therefore, filed this morning before the Court of Appeal. Mr. C. A. L. Treadwell and with him Mr. Hanna appeared in support of the motion, while Mr. W. C. MacGregor. K.C., Solicitor-General, and with him Mr. Macassey, for the Crown, opposed. On the bench wore his Honour, Sir Robert Stout. Justice Hoskins and Justice Sir John Salmond.

Mr. Treadwell, for Copoer. said he did not intend to argue the question ofya 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 prima facie case of murder by the Coopers or either of them at the time when such evidence was tendered by the Crown. Sir John Salmond: You say that such evidence is not admissible unless there is sufficient evidence to convict without it? Mr. Treadwell: Yes.

Sir Robert Stout, Chief Justice: Then it would be useless admitting such evidence at all? Mr Treadwell, continuing his argument, said that unless the corpus delicti was established there was no case to go to the jury. Mr. Justice Salmond: What is “corpus delicti?” Apparently, it is the offence in itself independently of the question of who committed it. Mr. Treadwell: Yes.

Mr. Treadwell, continuing, dealt with the legal authorities, which he contended supported his propositions. There was, he said, no evidence at the time the evidence was objected to that McLeod’s child was dead, much less murdered. The identity of the body found was not proved. It was only after the facts of the murder had been established that evidence as to other bodies being found could bo adduced for the purpose of proving that the accused was the culprit.

Sir John Salmond: Must there be a prima facie case of felonious intent for evidence to be admitted? Mr. Treadwell: There must be proof of murder.

Sir John Salmond: You say that evidence is only admissable to confirm a prima facie case of felonious intent in a case which is ready to go to a jury. Mr. Treadwell: Yes.

Sir John Salmond: Must there be a prima facie case on which the accused could be convicted? Mr. Treadwell contended further that the Crown could not call evidence of similar but unconnected facts to prove the main fact on which the Crown relied. The evidence as to Miss Comic’s child was, he said, inadmissablo, in that it did not tend to prove the intention to commit murder. Mr. Treadwell said that in the well known New Zealand case of Rex. v. Deans (a bait- farming case), the body of the chi\l in respect of which a charge of niurder was laid had been identified before evidence as to the discovery of 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 no reasonable doubt that identification was not established by evidence. Continuing, Mr. Treadwell said that to establish a prima facie case the evidence must go a long way further than, for instance, in a charge of concealment of birth. Even a confession of murder would not, he said, establish a prima facie case of murder against the person making the confession. Sir John Salmond: What authority have you for that statement?

Mr. Treadwell referred to a legal authority on the law of evidence, which he maintained supported his proposition. There must, he con eluded, be cogent evidence and not mere speculation to establish a prima facie case of murder. In the Coopers’ case such evidence was not present. Mr. MacGregor. K.C.. SolicitorGeneral, for the Crown, said that Mr. Treadwell's submissions were based on a misconception of the law. These contentions were, he said, disposed of in the New South Wales baby farming case of Nakin v. the At-torney-General. The true position, be said was that in proper cases the evidence of similar but unconnected facts could be admitted to show that the accused was guilty of the particular crime charged. Cooper’s was such a case. In Cooper's statements he had admitted receiving children, and he had even used the words “system and business.” Why should not the Crown show what had become of the children? Sir John Salmond: That is the question we have to decide. The legal position in New Zealand, said the Solicitor-General, was set out in the case of Rex. v. Whitta

(a case, of a charge of bookmaking). That case, he said, showed that evidence of similar but unconnected facts was admissible to prove ths main charge. Mr. Justice Hosking: Could tba Crown have set out and given evidence of these other bodies without first giving evidence of the main fact charged against Cooper? The Solictior-General: It is submitted that it could. Mr. Treadwell addressed the Court shortly in reply, and said that the case of Makin v. the Attorney-Gen-eral did not touch the present case At the conclusion of the argument the Chief Justice said that the Court, was of opinion that leave to appeal must be refused, but that in view oi the gravity of the case the reasons ol the Court would be given in writing, either on Tuesday or Wednesday next. The Court, of Appeal then adjourned until 10.30 to-morrow morning.