“A CASE TO ANSWER”

Wanganui Chronicle, Volume 73, Issue 81, 5 April 1930, Page 10

“A CASE TO ANSWER”

ALLEGED POISONED CREAM POLICE CHARGE A FACTORY MANAGER SAMPLES DISCLOSE POTASSIUM BICHROMATE A lease o£ far-reaching importance to the dairying industry opened at the Magistrate’s Court. Wanganui, yesterday before Mr J. H. Salmon, S.M., when Matthew Leo Rogers, manager of the Ruahine-Rangiwhaia Co-operative Dairy Company, was charged that, on December 16. 1929, he sold to the Maoriland Dairy Company, of Wanganui, eream which contained potassium bichromate, a preservative which, it taken in a sufficiently strong dose, would poison a human being. The police case was conducted by Chief Detectue JWalsh, and Mr L. Cohen, with him Mr G. W. Currie, represented the defendant.

In opening the police case, Detective J. Walsh said that the butter industry . was a competitive one. The representatives of the Maoriland Company, when in the Bangitikei district, were successful in getting several farmers to supply their factory. Kangiwahia was a fanning district in from Ohingaiti Those suppliers previously sent their’ cream to the Kuahme-Kangi-wahia Co-operative Butter Factor at Rangiwahia. The defendant (Rogers) was the manager of the Kangiwahia factory. Describing the method of testing the cream. Detective Walsh , said a small sample was taken from each can and kept until ten ays samples were available. Then a test was made of the accumulated samples. To keep the samples from deterioration during the period of ten days, a small amount of preservative, potas-

sium bichromate, or as it was common ly known, bichromate of potash, wa: placed in each bottle. After testing the samples were kept for four day/ to allow Government inspection. Ibis

was the universal practice in all butter factories in New Zealand. On December 16, 1929, a can containing 21 pounds of cream labelled “D. Saywell,” was received by the Maoriland Company from Ohingaiti. Further consignments in the same can were received on November ~ of cream). December 6 (181bs), December 16 (ISlbs). Mr Scott, manager at the Maoriland factory received the three last lots. He noticed a peculiar flavour in the second and third lots. After receiving the thidd he mentioned the peculiar flavour to the managing director, who told him to hold over the next can from Say well. W h ™ the fourth can arrived the health ofiicer was sent, for and a sample of the cream taken. “This sample has been analysed by a qualified analyst and was'found to contain potassium bichromate,’’ said Detective Walsh “Evidence will be called to show that Savwell, in whose name the cream was sent, was acting under defendant’s instructions,’’ said Detective Walsh. “We claim that Saywell is an innocent party to the transaction. Evidence will be called to show that the can of cream in question was not tampered with in transit. “It will be elearly proved that the cream in dispute was sent forward by the defendant, and, on its arrival at Wanganui, was found to contain a percentage of potassium bichromate. Cream containing potassium bichromate is uot fit for human consumption on account if this substance being an irritant poison. We contend that the consignments of cream sent forward by Kogers were the preservatised samples of cream containing potassium bichromate that he would have on hand at ten dav intervals. It is significant that the four lots of cream were sent forward at intervals of ten days, directly after the test periods had elapsed. ’ ’ Maoriland Manager's Testimony.

Ernest Osboldstone, managing director of the Maoriland Dairy and Pro duce Company at St. Johns, said that this season his company had received cream daily from the Kangiwahia dis trier since September, 1929. This cream formerly went f*< the Kangiwahia Ruahine Dairy Factory, lhere were four suppliers to his factory from the district, all big suppliers. The cream was collected by one Beilski and consigned by him from Ohingaiti. Detective Walsh: Did you have supplier named D. Saywell last year. Witness: Yes. Continuing, witness said a small quantity, approximately 20 pounds, was received on November 16. Witness did not know of the arrival of the first can. It just came amongst the Ohingaiti consignment. The next consignment from D. Saywell arrived from Ohiugaiti on November 26. A further consignment was received <>n December 6. The first three lots of cream were made into butter with other cream. It was not till after receipt of the third lot of cream that witness knew Saywell was a supplier. The time between each consignment was a nlost unusual practice, especially in the summer time. Following on something he had heard, witness told Scott, tue manager, to hold up the next can of cream from Saywell. On December 16 the same can was received and held. lhe following day Scott and Joyce, employees, sampled the cream in witness presence. He did not taste nor touch the cream himself. Following the examination he sent for Mr Pargeter, the health inspector. The latter took a sample of Saywell’s cream. 1 hat sample was divided into three. One sample and the can of cream were given to Mr Joyce to take to Mr \ eale at Hawera for analysis. lhe can of

cream was returned to him and ha kept it. The day he received the analyst’s report he had a visit from a Government factory inspector. The

latter condemned the cream, which railed back to Saywell. W itness went to Rangiwahia on January 3, saw Saywell, and as a consequence, made a complaint to the police. To Mr Cohen, winess said he did not profess tG be an expert in the actual cream grading. Mr Cohen produced a classification ticket for the first c°nsignment. This was “finest’’ grade, the second grade “first” grade which was lower than finest, the third consignment second grade. Donald Hart Saywell, grocer’s assistant at Rangiwahia, said that in

November last Rogers asked him if bo could use witness name to send some cream to the -Maoriland Company. Kogers said then he wanted to get the pavouts and the test of the Maoriland Company. Kogers left the cream at witness’ gate. He saw the can onlv oqee He looked at it but did not handle the cream at all. He believed the cream was left there four times. Later he received a letter from a firnr of solicitors in Wanganui. Witness saw Kogers who persuaded him to reply The letter was partly composed bv Rogers and partly by witness. He said that he believed the cream to be pure. The poison was unknown to him. He was just obliging Kogers. Later Mr Osboldstone saw witness. Later witness was in conversation with Rogers when defendant told him that he "had previously told witness it was Sample cream. He did not recollect that remark.

' Questioned by Mr Cohen, witness said he did not recollect Rogers telling him that it was sample cream without preservative. Albert Thomas Beilski. motor drive , said he carted cream for the Rangiwahia and the Maoriland companies. He_ loaded the cream into the tram at 1.15 p.mor after, at Ohingaiti. Saywell rang him up about the beginning of November asking him to take some cream from Savwell’s gateway for Maoriland. l ater he picked up two more lots from the factorv. Rogers had left the cream at the factory. He thought this to be

Charles O’Brien, guard on the railavs. remembered cream cans being

consigned at Ohingaiti on December 16. The cans were loaded by the consignor. He did not, and there was no chance, of anybody interfering with the cream once it was on the train.

William Harold Blanche said he conducted trains between Wanganui and Marton on December 16. The cans might sometimes be on a truck, sometimes they were loaded direct from one van to the other. His train left Marton half an hour after the arrival of the south bound train from Ohingaiti. Frank Galyer, carter employed by the Maoriland Company, gave evidence of the transhipment of the cans from the train for Maoriland factory.

Robert Scott, manager of the Maoriland dairy factory, said that the second lot* of cream received from Dr Saywell had somewhat of a “lime” flavour.

The next can of cream was of poorer quality and had the same peculiar flavour. This he graded second. He then reported it to the manager Mr Osboldstone. He held up the next lot of cream which arrived at about 7 p.m. on December 16. He received the can from the carter. Witness was the last man in the factory, which he locked. The following morning he dolivered the cream to the manager’s office and graded it before Mr Osboldstone and Mr Joyce. He left the can of cream in the office.

Detctive Walsh: What did you think was wrong with the cream Witness: I did not say what was wrong, but to my mind it had some preservative in it.

Witness added that cream kept for ten days would be sound. The samples were tipped down the drain after being kept for the required time. He did not know of any factory ever using the cream. Detective Walsh: Could you tell us what a manager usually does if he wants to make tests? Witness: Send it to the Government

inspector. Detective Walsh: Do you know of a manager ever sending his cream to another factory? Witness: No. To Mr Cohen witness said bicarbonate of potash was the usual preservative. It had not much smell, but a burnMr Cohen: If you had not had any instructions you would have passed it? Witness: Yes, I suppose so. The Magistrate, Mr Salmon: What would the value of this can of cream be? Witness: About 30s. The dinner adjournment was then taken. Ernest William Pemberton, farmer of Rangiwahia, chairman of directors of the Ruahini-Rangiwahia dairy company, said the first he heard of defendant’s sending cream to the Maoriland company was from Rogers himself, prior to the New Year. Detective Walsh: Will you tell us I why he should do so? Witness: He told us he wanted to see how the Maoriland graded. Detect ive Walsh: Why? Witness: He told us he did not think the Maoriland was grading properly.

Continuing, witness said his company did not approve of Roger’s action and did not intend to send any more. Rogers told the directors at a meeting that he did not intend to send any more.

Detective Walsh: Why did he think the Maoriland was not grading properly?

Witness: Because .he said that they had taken cream that he had rejectee?. He told me at the start that he had done it off his own bat. Detective Walsh: Did he say anything with regard to getting these people back? Witness: I think he did say that if he could prove that the testing and grading was incorrect he might get them back.

Detective Walsh: Did Rogers tell you that he was sending preservative? Witnes: No,

Mr Cohen: In fact, when there, you your factory are you Witness: Yes. Mr Cohen: In fact, were there you won the world’s championship. Witness: Yes. Mr Cohen: I believe that Mr Rogers expressly stated that he was not putting preservative in the cream? Witness: Yes. Mr Cohen: There could be no gain in it to Mr Rogers? Witness: No gain whatever. Arthur Douglas Joyce, travelling representative of the Maoriland Dairy Company, detailed the procedure followed in Mr Osboldstone’s office on the morning of December 17. He was asked to grade cream from a can which had been labelled with the name of Saywell. This he did by following the usual process of stirring the cream and tasting it. The Magistrate: Is that the whole process? Witness: Yes.

Continuing, he said that he noticed the cream was stale, but it was lacking in acidity which made him think there was preservative in it. Witness corroborated the evidence of the witness Osboldstone with regard to calling in Mr Pargeter, describing how three samples were taken of the cream One was handed to witness with instructions to take it to Mr Veale, analyst at. Hawera. Mr Pargeter took the other two away. Witness proceeded to Hawera with the sample bottle and the can of cream. These he handed over to Mr Veale to analyse. Mr Veale thought he would require more cream than was in the bottle and took a further supply from the can. The can was afterwards returned to Mr Osbolstone’s office at Wanganui. Witness did not know Saywell at that time and had met Rogers once previously. He had been employed

as a testing officer in the Department of Agriculture for a number of years. He had never known of supplies of cream being kept in a butter factory for ten days without preservative added. If cream were kept for ten days without preservative it would become fermented.

Cross-examined by Air Cohen, witness said he had not. graded any other cream sent in by Saywell. The colour of the cream graded in Mr Osboldstone’s office was a deep lemon, a rich colour. Mr Cohen: What was that lemon colour attributable to? Witness: I don’t know.

Mr Cohen: You noticed the high colour immediately? Did you smell the cream? Witness: Testing is a matter of taste. Mr Cohen: What did it taste like? Witness: Old, musty. Mr Cohen: Supposing I could prove thaft it had a distinct limey taste what would you say? Would that be right? Witness: It didn’t taste like that to me. Mr Cohen: But there was a brass tag also. Now, if you wanted a check test to be made of cream, where would you send it? Witness: To the Government. Air Cohen: Would it be tested if you sent it to the Government analyst? Witness: Yes. Mr Cohen: It would not. Detective Walsh: That is wrong. Mr Currie: It is right. Mr Cohen: Did you know that the Government analyst is there for file purpose of assisting the police and the Government Departments. He would not test it for you, so who would you send the cream to if you wanted a check test? Witness: "Hie Department of Agriculture. Mr Cohen: What would they test for? Witness: Fat. Detective Walsh: And what is cream usually tested for? Witness: Fat. Three Samples Taken Thomas Pargeter, Health Inspector stationed at Wanganui gave evidence to the effect that he attended at Mr Osboldstone’s office and took three samples of the cream from a can there. The samples were taken unofficially, because if the matter were to be treated officially his Department might have to take action against Mr Osboldstone’s company. Witness would have to take action against Mr Osboldstone’s company. Witness would have to buy the samples and the company would have been the sellers. The usual formalities were gone through and the bottles sealed, signed and marked “ preservatives suspected.” One sample was handed to Mr Osboldstone and one was posted to the Dominion Analyist. The third remained in the possession of witness until January 14, when it was handed to IDetective Walsh. Mr Cohen, in his cross examination, dwelt at length upon the taking of a third sample. “Is it not a fact that if you had treated this matter officially that third sample would have gone to the seller, the man whose name was on the can?” The witness: Probably.

Mr Cohen: But you treated this as a purely unofficial matter which you were at perfect liberty to do. When did you send the sample to the Dominion Analyst? Witness: On December 17. Mr Cohen: Did you get a report? I have it but I am not entitled to disclose it? Mr Cohen: Who says that?

The witness replied that there was a confidential clause which had a bearing on the matter. The Magistrate: That is a different thing. There is no reason why that report should not be produced.

Witness handed over the report which, read by Mr Cohen, referred to cream samples taken at Wanganui on December 17, 1929 and signed “T. Pargeter.” The fat content was shown at 42, and the report said there was no preservative in the sample. Mr Cohen: Supposing you had done this officially, wouldn’t you have felt constained to see that the seller had a sample? Witness replied that he had given a sample to Mr Osboldstone. Mr Cohen: He was the nearest you could get to the seller? Wouldn’t you have taken care to go up to Rangiwhaia to make a sample before the cream left the seller’s hands?

Witness: If I had everything in writing probably I would, but I only say probably, because I would have to abide by the conclusion arrived at by the Dominion analyst or my Department. Mr Cohen: It would have been fairer to take a sample up at Rangiwhaia. Witness: It would have been nicer. | To Detective Walsh: Witness said j that if Saywell ceased to sell cream i from then on that would have been impossible. It was not permissible to alI low preservative in cream, not even a j harmless preservative, let alone a poisonous one. Alfred D. Collins, chief assistant analyst to the Federated Co-operative

Dairy Factories, of Taranaki, testified as to the analysist carried out by Mr Veale at which he assisted. A first analysis was made for ordinary preservatives such as washing soda and boracic acid. An examination was not made for potassium bicromate at that time. A test was made for acidity, the cream being incubated over night. The test prior to incubation showed .20 per cent acidity. After incubation at 37 degrees the acidity was .26 per cent. That was abnormal. He would have expected it to be double. On the following day and analysis revealed the presence of a cromium salt—potassium bicromate. The proportion was 0.05 per cent. Potassium bicromate was usecT to preserve ordinary cream supplies. It was poisonous. Butter made from cream which contained it would be condemned.

was subjected to a lengthy cross-examination by Mr Cohen, daring which the process of analysis was thoroughly ventilated. Mr Cohen: Would 0.05 per cent, of potassium bicromate be poisonous to a human being? Witness: The medicinal dose is onetenth to one-fifth of a grain. Mr Cohen: But 0.05 is not a fifth. Witness said that if a dram contained 0.05 of potassium bicromate he had worked to find what amount of cream would be sufficient to give a fatal dose and considered a third of a gill sufficient. Mr Cohen: I say a tablespoonful. To Detective Walsh: Cream kept for ten days, added to in small quantities each day, would not keep fresh without the use of preservative. Air Cohen: Was the cream you analysed fresh? Witness: No, it was stale.

William Donovan, Dominion Analyst, said that on January 15 he received a bottle of cream (produced) from Dr. McLaurin, then Dominion Analyst, and was directed to analyse for the presence of potassium bicromate. This was cone and it was found that the sample contained 0.05 per cent, of potassium bicromate. Witness had nothing to do with a similar bottle of cream sent on December 1.8 but was aware that it did not contain preservative. Potassium bicromate was poison. He would not test to find it without special instructions.

To Air Cohen: Air Lawrence, of Wellington, was a capable analyst and was sometimes recommended by witness’ department. Sidney Herbert Godfrey, enginedriver for the Alaoriland Company, said that he was on duty on December last. It was his duty to open up the factory, Air Scott, the butter-maker, coming next. He had not tampered with any cream in the factory.

Detective Walsh deposed as to having received a bottle of cream from Air Osboldstone, which he personally delivered to the Dominion Analyst at Wellington on the morning on January 15. On January 17 witness visited Rangiwhaia and saw the defendant, Rogers, at the factory. Witness explained the purport of his visit, telling Rogers of what Saywell had stated. Rogers had replied: “That might, or might not, be true.” Witness asked Rogers what preservative he used for samples of cream. He replied “bicromate of potash.” He asked defendant what he did with his samples of cream at the expiry of the test periods and his answer was: “I decline to answer that question.” He had said, further, that he did not wish to discuss the matter in any shape or form.

That closed the police case. Beilski, recalled by Air Cohen, was questioned as to a conversation about a can of cream at Air Saywell’s (senior) gate. Air Cohen: Do you remember a can of cream at the gate? Witness: Yes.

Do you remember Mr Saywell’s father being there being angry I don’t think he was exactly angry. Impatient then—hasty? No, not that either? You knew young Saywell had no cows?

No. I only told what I had heard. The Magistrate: Do tell us what Saywell said. You have had an occasion recalled to you. Are you dull, or are you trying to hide something? Was something said?

Witness: No. The Magistrate: You just picked up the cream and drove off? Witness (hestitating): I told what I had heard. Mr Cohen: The father asked whose cream it was, didn’t he? What did you say ? , Witness: I said it was his son s. Air Cohen: Now about that book at the factory. When the weights came back you put them in the book? Witness: No. Air Cohen: You swear that? Witness: Yes. Air Cohen: Since this court adjourned for lunch did Air Rogers speak to you? Witness: No. What? Witness: It wasn’t me. Air Cohen: I put it t 0 you that Air Rogers saw you and told you to tell the truth about the book. You told him that you had to tell lies because there was nothing else left for you to do. Detective Walsh: Did you take that book we are hearing so much about? Yes, I did. Detective Walsh: That doesn’t affect the case about the cream.

The Defence. Mr Cohen, opening for the defence, referred to the importance of the case publicly and from the defendant’s point of view. Rogers was a highly esteemed manager and his record was a matter of pride to him. The case had to be distinguished from ordinary adulteration of food for gain. There were two distinct provisions in the Act—provision seven and provision twelve. Section seven dealt with a case of sale and contained the measures laid down by the legislature for the protection of the seller, or the person likely to be charged, in t bat a third sample of the food had to be preserved in the seller’s possession, to be analysed to protect his interests. Referring to section 22, Air Cohen pointed to sub-section two, which enabled the inspector to acquire the sample from a person who was not a seller. There was no reason why Air Pargeter should not have adopted sections seven and so made the Maoriland Company import the seller. Saywell was the name on the can and there was opportunity to bring the matter as an official act before this Court and the Health Department would still have been protected. Counsel, how-

ever, did not make much of that point, but the point he did want stressed was that the *late Chief Justice (Sir Robert Stout) after reviewing the cases then extant Lad laid it down with absolute clearness that the provision of a third sample was essential. Air Cohen read an extract from Sir Robert’s review, contending that it eloquently pointed to the protection the Act afforded to a seller about to be charged. “These samples are sealed up by the Health Inspector,” Air Cohen proceeded, “so that there is no means of any substance being added to them or extracted.”

Continuing, he referred to the highly penal nature of any offence under the charge. An act of this sort endangered the lives of the public. It might be vindictive, quasi-criminal. “We do not have to prove that there is someone so inimical to Rogers as to expose him by this method,” proceeded counsel. “It is not for us to prove animus, or the probability of it, or anything to inspire ‘putting Rogers’ pot on,’ so to’speak. It is for the Crown to establish that Rogers put this preservative in the cream. It is obvious to your Worship that there is trade jealousy in this matter. We find the Alaoriland Company scouring the country and Rogers jealous of his factory. Four suppliers have been taken from him. Cream he did not accept has been accepted by the Maoriland. He may have looked to try them out and see what cream they really would take.” Air Cohen traced the can of cream from its departure from Saywell’s gate, its carriage on a lorry to the Ohingaiti railway station, the wait it had there, its journey on the train to Alarton, its further wait there and then, finally, a period in the Alaoriland factory during which it was not under supervision. “Evidence comes from good mouths,” he proceeded, “but we must have proof. There is no difference in the grades of proof. Supposing there was such a quantity of bicromate of potash in butter as to cause a person’s death and Air Rogers was on trial for murder. Would a jury convict? Would a case be allowed to go to a jury when there were so many opportunities for deleterious matter to be inserted in the cream? You cannot avoid, your Worship, applying the eloquent protection afforded by the Chief Justice.”

The Magistrate: I think there is a case to answer.

The Court adjourned until 10.30 a.m. to-day.