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The New Zealand Railways Magazine, Volume 9, Issue 6 (September 1, 1934)

The Trial of Daniel Burke

The Trial of Daniel Burke.

WHen Daniel Burke stood his trial for the wilful murder of James Marks, on the 24th April, 1873, he relied on the old British tradition that the onus of proof lies on the Crown to establish its case beyond reasonable doubt, and not upon the accused person to establish his innocence.

On the Continent of Europe the practice, generally, is for the accused person to satisfy a jury that he is not guilty of the crime alleged against him. That is no doubt an awkward thing to do, especially for a guilty person; but throughout the British Empire it is accepted that a fair trial, fair that is from the point of view of the prisoner, is more likely to result if the onus of proving the crime rests upon those alleging it. It may well be that this British principle allows some guilty persons to escape, but it may as safely be averred that the foreign custom of placing the burden of proving innocence on the shoulders of the accused, as frequently results in the conviction of an innocent person. How much better it is that a hundred guilty persons should escape than that one innocent person should be convicted!

The trial under review was a curious one, and in some respects it was very badly conducted.

The scene of the tragedy was Mercury Bay, on the East Coast of the North Island, at that time a bush-milling centre. The two hotels in the district were connected by a bush track, and the lights of one of them could be seen from the other. Both hotels depended for their support on the bushmen. One of the hotels was situated at a hamlet known as Whitianga, and it was known accordingly as “Whitianga Hotel,” though its more popular sobriquet was “Carini's,” after the name of mine host.

Until the night of the 24th April, Burke, when he came into the village, had been accustomed to stay at Carini's. To get into “town” Burke would have to walk some fifteen miles from the mill where he was employed, that is, unless he cared to ride on a bullock waggon or some other distressingly slow-moving vehicle. However, it was a well established custom for sawmill hands in those days to become very thirsty after a good period of work, and to walk fifteen miles to refresh oneself was not unusual.

Though Mercury Bay was off the beaten track sixty years ago, the law prevailed there, and crime was investigated with the same care, and punishment meted out with the same certainty as in more populous parts of the country. When, therefore, a native in the district found the body of a white man lying on the seashore, apparently washed up on the rocks, he lost no time in spreading the news. At once it was assumed that a foul crime had been committed. The local gossips soon fixed on the murderer, and with the aid of the police it was not long before Daniel Burke was charged with the murder of his mate, Marks.

After the usual preliminaries the venue of the investigation was removed to the Supreme Court House at Auckland. There, before Sir G. A. Arney, Chief Justice, and a jury of his fellow men, Burke stood his trial, relying most strongly on the theory that it was not for him to prove his innocence.

The Crown was represented by Mr. Brookfield, while the defence of the prisoner had been entrusted to Mr. Joy.

The task set the jury was a difficult one. The case was opened by the Crown Prosecutor, who explained briefly to the jury the evidence he relied on, and generally the circumstances which surrounded the mysterious death of James Marks.

Isabella Brown was the first witness to give evidence. She told the jury that at the time of the murder she was a servant employed by Carini. On the 24th April, 1873, she saw in the hotel, at tea, three men whom she knew. They were Marks (the deceased), Burns and Akran. They had their tea between five and six o'clock. When he had finished his tea, Marks went out alone, but he returned about seven o'clock, with Burke. She knew that Burke and Akran were mates. During a conversation the two men got very cross and abusive. Burke said “Let us go back to the bush and not like some who come down from the bush, make this place their home.” The shaft went home, and Marks flushed red and said, “I don't make this place my home.” Burke said, “I am not speaking to you, so you needn't take it up; or, if you do, come outside and we will see about it.” At this time all the men had had a good deal of drink. They rose from their table soon after this and went outside. In about a quarter of an hour Burke and Akran returned together. page 25 They stayed about twenty minutes and then left, going in the direction of the other hotel, which was known as “Ferguson's.” Burke paid for the drinks on the last visit.

As Isabella Brown stepped out of the box, her place was taken by Thomas Burns, who told the jury that on the fatal 24th he was employed by Carini. Once a month, the witness said, Marks used to come down from the bush. He knew the other hotel quite well. There was a level beach the whole way. At the back of Carini's there was a creek, the bed of which was dry. There was a track running alongside the bank of the creek, which varied in width from three to seven feet.

Giving a further description of the locality, the witness said there were three smaller creeks which ran down to the beach. The largest was crossed by a plank, while it was possible to leap the others. There would be two feet of water at high spring tides, and at low tide only some three inches in the widest creek. On the 23rd April, at 8 p.m., the tide was making a little. There was no rain at the time. He remembered that that night was dark and hazy. He heard footsteps going over the plank at the widest creek. Judging from the time
“Burke was dripping wet on the second occasion.”

“Burke was dripping wet on the second occasion.”

he saw him go out he thought that the steps were probably Marks. Much the same detail was given by another witness, Alexander McLeod.

Charles Pearce was next called, and he proved a very important witness. He said he was employed at Carini's as a cook. On the 24th he walked to Ferguson's. Half-way between the two hotels was a cottage occupied by one White. It was 7.28 p.m. when he reached White's. It was then beginning to rain, and Pearce said he took shelter. He heard two men talking, and he recognised the voices as those of Burke and Marks. He had known Marks both at Mercury Bay and at other places for some seven years. Burke he had known for about one year. The evidence of Pearce was directed to shewing that at that time and place these two men were together. The cross-examination was directed to test the witness' knowledge of the landmarks in the locality.

Alexander McKenzie, a barman at Ferguson's, said that he saw Burke twice on the 24th—once a little before, and again after 8 p.m. On the second occasion Burke was dripping wet. Whenever he moved he left a trail of water behind him. McKenzie offered to help him take his boots off. Next morning, Burke, quite dry, was in the bar.

The next witness, Ferguson, whose parents had blessed him with the additional names of John, Bunyan, said that on the 24th April he gave Marks $1. On the 12th May he heard of the finding of his body, and assisted in its removal. The witness said that about 7.40 p.m. on the 24th April, Burke came into the hotel. He was very wet and made a track wherever he moved. It will be noticed that here the proprietor and the barman are at variance. The barman said that it was not till the second visit after 8 p.m. that Burke was wet through. Ferguson said there had been some showers, but not enough to account for Burke's condition.

Then came John Steel Ford. He had slept at Carini's on the night in question. He went to bed early, sometime between 7 and 8 p.m. Burke came into his room and asked for the loan of his lantern. When the lantern was returned next morning he noticed that the bottom had dropped out of it. Burke said it had been lost. He saw Burke later, in the care of the police. Burke said to him, “I have got into a pretty mess about Jimmy Marks. Had he and I walked along the beach and he had fallen into the water it would have been different.” Burke told him that sometimes when he was in drink he did things that he had no right to do, on such occasions men were nothing to him.

Thomas Carini was then called to give evidence. He said he had known Marks for seven years, and knew him well. On the night of the murder the wind blew right across the river and up the beach. It was high water at 4 p.m. At 8 p.m. the tide was fifty yards from high water mark. The beach shelved at once below low water mark. In answer to Mr. Joy's cross-examination, Carini said that, at times, Marks would “go on the drink” as he called it. He was not drinking on the day in question. He had only one small beer. Of course he would know, if a man had been drinking, long before he was drunk. He could tell by his speech, and there were, too, other indications. Marks had returned from a “bust” two days before he died.

The next witness, a man called McLennan, said that a native boy told him of the finding of the body six miles from Mercury Bay. The witness took a boat and rowed round to the spot. There lay Marks, just above the rocks, face downwards. The right-hand trousers pocket was turned inside out. His other pockets were filled with sand. The next statement he made proved of considerable importance to the medical witnesses. McLennan said the arms were outstretched and the hands were open.

Then came the medical evidence, and in the light of medical knowledge to-day, and especially as death had taken place a fortnight previously, it appears stupidly inconclusive and unreliable. Dr. Agassiz said he went to see the body, and added, that he had never seen a case of accidental drowning where the hands were not closed; they were generally clenched.

In addition to this somewhat extraordinary statement was the evidence of the next witness, Dr. Goldsbro. He said in all cases he had seen of accidental drowning the hands had been clenched, and the arms drawn towards the body.

The police evidence was supplied by Constable Grace. He said, acting in terms of his duty, he had inquired into the case. Burke, he said, told him he had not seen Marks on the night of the 24th; he (Burke) had been drinking all that day, and had not been to Carini's on the night in question. Witness said he brought Burke to Mercury Bay. The party of which he and Burke formed part, also consisted of the witnesses McLennan and Akran. One night on the way he slept at the store at Gum Town, Mercury Bay. They all lay on sacks of chaff. Before he dropped off to sleep, Grace said he heard the prisoner say to Akran, “If the —– woman will only keep her mouth shut it will be all right.” No doubt the prisoner was referring to Isabella Brown, who swore to seeing Burke in the company of the deceased before the commission of the crime.

page 26

page 27

That was all the evidence called by the Crown, but the jury wanted to hear more from the witness, Pearce. He was duly recalled, and said that he did say to McKenzie after he had seen the two men, Marks and Burke, near the boat-shed, that McKenzie would never see Marks alive again. He had said this because Marks seemed to have quarrelled with Burke. “I could see that Marks was excited, for he was walking up and down. I myself have had a quarrel with Marks, and when he got excited he started walking up and down. I had very strong suspicion of Burke in consequence of knowing his character. I knew, too, that he had previously been convicted of manslaughter.”

Mr. Joy then opened the defence by saying that there was no evidence that a murder had been committed. There was, he said, no evidence as to the cause of death. He himself would call Akran to say that Burke, on the night of Marks' death, had gone to bed shortly after he had been seen with Marks, too soon after for the prisoner to have possibly been the murderer.

Akran, on being recalled, said that he and Burke had gone to bed together, and that Burke did not leave the room after going to bed. In cross-examination by the Crown Prosecutor he denied that he had told Inspector Bullen that Burke had been quite dry and that later he was wet through. In rebuttal, Inspector Bullen denied Akran's evidence which he had just given on behalf of the prisoner.

Then came Mr. Joy's speech. Again he reiterated that there was no evidence of a crime having been committed. Indeed, that seems to have been the case, for there was no real evidence that Marks had been drowned, let alone that he had been murdered. The Crown case seems to have been very imperfectly constructed on this very important phase. Mr. Joy went on to say that there was no connection of Burke with the death. Again that seems almost correct, there being practically nothing against Burke but his own false statements. As to Pearce's evidence, that witness had to rely on his hearing. The night was dark and the weather hazy, and he may well have been honestly mistaken. The medical evidence, Mr. Joy said, was not of much use, and it did not touch the serious effect that three weeks' immersion in the water would have had. At the least the prisoner was entitled to the benefit of the doubt.

Mr. Brookfield put his case to the jury by saying that there was a case for the prisoner to answer. Beyond doubt he said the deceased met his death by foul play. The condition of his pocket indicated the motive for the crime. There was nothing to throw any real doubt on the evidence of Pearce and, if accepted, then Marks and Burke were quarrelling just before Marks' disappearance. Then Mr. Brookfield asked the jury why, if innocent, had Burke made a false statement, if, indeed, it were not to conceal his actions on the night of the 24th? Finally Mr. Brookfield made the submission that the jury could bring in a verdict of manslaughter if they were not satisfied on the major charge of murder.

In his summing up to the jury, the Judge said there was no evidence that would entitle them to reduce the charge to manslaughter. It was murder or nothing. He thought there was no real evidence of quarrelling to allow of such a reduced charge. Then the Judge dealt with the evidence at length. He traversed all the facts that went to point out Burke as the murderer. He could not. however, ignore the lack of evidence shewing that Marks had necessarily been murdered. There was no evidence of preliminary assault, such as fractured skull or the like. It had been assumed that the man had been drowned, but it may have been an innocent drowning. The strength of the case against the prisoner lay in the fact that for some reason the prisoner had denied that he was at Carini's hotel, or in the company of Marks, on the 24th April. The Crown properly suggested that that was the act of a guilty man. That, however, was a matter for the jury. It was certainly suspicious, and the Judge properly told the jury that they were to come to their conclusion on evidence and not on bare suspicion.

The jury retired, and in twenty minutes declared that they unanimously found the prisoner not guilty.

Burke was thereupon discharged, and left the dock a free man, though no doubt he was unable to clear himself of the grave suspicion that he well might have done his friend to death in a drunken quarrel.

On the evidence, however, the jury would have taken a grave risk in convicting Burke. The onus of proof is no light and flimsy obligation. Proof of the committal of a crime must be by strong, clear evidence if the standard of British justice is to remain high in the estimation of the world.

(Rly. Publicity Photo.) A glimpse of Lake Manapouri, South Island, New Zealand.

(Rly. Publicity Photo.)
A glimpse of Lake Manapouri, South Island, New Zealand.