VOL. VHr] L .\ W R 1£ P 0 H. T ~ 227 (New Zealand Law Reports, 1952, page 111) (2) (a) rl'hat the learned J u·dge wrongly directed the jury in that (i) he directed it that there was C01 TR'l' m' ApPEAL. \VELLINGTON. 1D51. OCTOBEIt J, ~, ::; evidence which it might treat as a confession of the DECEMBER 10. F.UR, A.C ..T.; GRESsox,.T.; STAKTON,.T.; accused admitting the fact of death, or (ii) did not HAY, .T. direct the jury that there "vas no such evidence. THE KING v. HORRY (3) 1'hat the learned Judge directed the jury elToneom~ly in summing up, in that he declined to Criminal Law-Evidence-M'urder-Proof of Corpus delicti- direct the jury that, in the absence of direct evidence Borly of Person Alleged Killed not found-No Confession of the killing or of the death of l\1ary Eileen Turner, 7JY Accused-Fact of Death prol'llble by Circumstantial there was no onus upon the prisoner to account for E 1'1:rZence-Requirements as to S'uch Ji)'vidence. her disappearance or non-production. At the trial of a person charged with murder, the A. K. Turner and Shieff, for the appellant. faet of death is provahle by circumstantial f'yirlen('\:', Y. R. S. l~ferediih and Speight, for the Crown. notwithstanding that neither the body nor any tnu'c of the body has been found and that the accused has macle ...t. K. Turner, for the appellant. An affidavit has no confession of any participation ill the cnme. Befon' he can be convicted, the fact of death should be p]'(werl been 10Uged with regard to the publication in TTuth by such circumstances as render the ('onHll iRsioll of the of matters which, should a new trial be granted, will e~ime morally certain and leave no gl'ounrl fo]' reasonable make it impossible for the appellant to receiYe a fair doubt: the circumstantial evidence should be so cogent trial any,,\'llel'C in New Zealand. It is IH'Oposed to ask and compelling as to convince a jury that upon no rational the Court to receive the affidayit I';hich shows that hypothesis other than murder can the facts 1)1.' ;t('counted Trllth exhibited in various parts of New Zealand a for. postel' with the \\'l)l'(is " Staggering Criminal Record " of Munlerel' Cecil Horrv " and that in the news- Bltmdell v. Med'ical Council ((H)·H!) Court of paper Hself was all articl;, detailing the appellant's Appeal, \Vellington; unreporte(l) follo\Yll. preyious convictions, and a statement containing the words: "It was reported last week that an appeal Peacock v. The King (( J 9Jl) J:{ C.L.R. (il 9) " will be lodged. ' , and R. v. Da1JirZson ( (19~l4) 25 Cr. :A pr. 11. V. R. S ..Me1·edl"th, for the Crown. The matter is one for discussion in the Supreme Court; it is not one 21) applied. for discussion in these proceedings. Reg. v. Woodgate ((1877) 2 N.Z. .Jur. (N.S.) rPAIR, A. C.J. It is d ifncult to see how exception C.A. 5), R. v. Brown ( (HHl) :31 N.Z.L.R. 225), R. v. HindmaTsh (( 1792) 2 Leach can be taken to the Court's !:'eeing the affidavit and ;'5H9; 1(i8 E.R. 387), R. v. IyIcNicholl ([ UH7] the newspapel'.l 2 LR. 557), and Req. v. Burton (( IH54 ) Dears. 282; 1G9 E.R. 728) referred to. TW"rw/', continues. The statement made by the appellant to Detective ]lclJ cannot be treated as a So held by the Court of Appeal, di~missing all appeal confession. F'rom the Crown '8 point of view, it was, from a conviction for murder. at best, a completely equivocal statement. The state- ment made by the appellant in his letter from A t the trial of the appellant for the murder of his Brisbane could not be treated as a confession. The wife, whose body had not been found, the jury found him learned Judge referred to those two matters in his guilty' of the e.rime. On appeal from that eOllvictioll, summing-up, and left it in some doubt whether they could be treated as confessions. On the facts, the jury Held, J. That the jury, viewing the evidence as a should have been directed to acquit the appellant: whole, waR entitled to regard the concurrence of so many lVoolrJl1:ngton v. Director of Publ1:c Prosecutions separate facts and circumstances-themselves established ([1935] A.C. 462, 481) and Besi on EV1:dence, 12th beyond all doubt, and all pointing to the faet of dea.th Ed. 34, :J5, 36. '1'he Court is invited to consider on or about .July l;~, HH2-as excluding any reasonable whether it is possible in this case that the tribunal hyputhesis other than the death of the person alleged to may have supposed a crime where none had been have been mun]ereu, and as having, therefore, sufficient committed. It is essential to prove (i) that a crime probative force to establish her death. has been committed, and (ii) the identity of the criminal. There can be no satisfactory proof, on all 2. That, if the evidence were sufficient to estn blish the the evidence in this case, that a crime has been death of the deceased (as a jury could have l'eganlel1 it committed: Evans Vo Evans ( (1790) 1 Hag. Con. 35, to he), there \vas ample eviuence pointing to the 105; 101 E.R. 466, 491), Reg. v. ~Murphy ( (1867) appellant's having murdered her. 4 "V.W. & A'B. 63, 88), :2 [fale's Pleas of the CTown, 290. Here: (i) No body, or part of a body, is :3. That there was no miedin'ction of the jury by the pl'o(luced. (ii) There if; no direct evidence from learned .Judge. anyone who saw Eileen killed OY' injured jn any way. (iii) There is no confession of the fact of death. APPEAL under s. :3 (a) of the Criminal Appeal Act There are two small pieces of evidence which are the subject 01" argument-namely, the remark to Detective 1945 against the appellant's conviction of the murder of Mal'v Eileen Turner at Auckland on 01' about July 12: 1942. . 'rhe facts appear from the judgment of the Court (Post, p. 116). (P.L.R. Vol. VIII, p. 230.) The appellant. appealerl on the following grounos : (1) 'rhat there was no case to go to the jury, and that the leal'ned Judge should have directed the jury to acquit. (2) 'fhat the learned Judge directed the jury erroneously in summing up, in that he declined to direct the jury that, where no body or part of a body has been found which is proved to be that of the person alleged to have been killed, an accm;ed person should not be convicted of murder 01' manslaughter, unless there is evidence either of the killing 01' of the <1eath of the person alleged to be kil1e(1. 228 LAW REPORTS [VOL. VITI Fell (Post, p. 120, 1. 55, p. 121, 1. 1) (P.L.R. Vol. 11,'is1: ])1'iu:) decision. In some of the cases, there seems to be one slight distinction made where a person VIII, p. 232, n. 114 and 115) and the letter alleged to have been killed is a child of very tendet' years in the custody of the accused; and in thm"H:' from Brisbane (Post, p. 119, 1. 26) (P.L.R. Vol. cases the accused is under some greater obligation VIII, p. 281, 11. 121 and 122). They are not con- than in the case of the killing of an adult: see fessions, and cannot be so regarded. A confession R. v. Brown ( (1911) 31 N.Z.L.R. 225, 238) and Wills must be clear and unequivocal to be used as such. on Circu?Hstant'ial E'I'idence. 17th Ed. 34(i, 348, 386, The remark to Detectjve Fell is neither, and the letter 388. R. y. Towle, Badder, and Slate'r ((1816) ~) is not an admission of death; it is a fabrication: Price 145; 146 E.R. 217) does not authorize the Phipson on Evidence, 8th Ed. 253. The letter must statement that the fact of death can be proved by be read as a whole. 'I'he effect of the letter is to circumstantial evidence: see 1 East's Pleas of the persuade Eileen IS mother to believe that she will not Crown, 1883, Ed. 223, 224, A1'chbo7d on C'fhHinal hear from her daughter again. It cannot be put Practice, 82nd Eel. 895n, and Reg. v. ChM'eriml forward by the Crown as a document of truth. The ( (1862) 2 F. & F. 8:18; 175 E.R. 1308). Apart from learned Judge was of the opinion tha,t neither R. v. Ihndmarsh ( (1792) 2 Leach 569; l(i~ E.R. operated as a confession in the circumstances. 887), the other cases do not support the proposition that direct evidence need not be given. IJindmaT.'ih's The doctrine laid down in 2 IIale's Pleas of the case is a modification of Hale's rule to the extent that, Crown, 290, is the one to be adopted by the Court: where there is evidence of bodily violence (as in that see Best on Evidence, 12th Ed. 373-375, Ken,ny's case), Hale's rule may be departed from. In Peacock Outlines of Crirninal Law, 15th Ed. 401, 402, 403, Y. The King ( (1911) 13 C.L.R. 619, 628, 629, (30). R. v. IIindtnarsh ( (1792) 2 Leach 569: 168 E .R. the basis of the decision ,vas that there was a 387), and Reg. v. Burton ( (1854) Dears. 282, 284: corroborative confession, and that the remains found 169 E.R. 728, 729). In cases of homicide, the strict- in the fire pJ'(wideci sufficient evidence of death; but ness of the rule cannot be departed from. Ifale's rule the statement of the Chief Justice 'with regard to was considered in R. v. "~1cNicholl ([1917] 2 I.R. 557, eircumstantial evidence (ibid.,. fi28) is ob1·ter. 587, 590, 592, 593); but the reason for the conviction was that a confession had been made. Apart from Alternatively, the learned trial Judge should have Eileen's disappearance, there are here no surrounding directed an acquittal, as the evidence was insufficient circumstances to justify the presumption of death: to convict. In cases where circumstantial evidence iR Roscoe on Cl'i?m'nal E1~idence. 15th Ed. 872. Reg. v. used, moral certainty must be produced: lYills 011, lIopkins ( (188~) 8 C. & P. 591; 178 E.R. (j81) wa~ Ch'clOnsta-ntial EI'idence. 7th Ed. ,348. If moral admittedly an unsatisfactory case. On the authorities certainty j:::; reached, corltemplat.ion of the contrary cited, IIale's rule still applies, and, so far, it has not possibility ought to shake reason; but, if Eileen been derogated from. rrhe statement of the la,v in 9 walked into this COUl't now, it would cOl1tl'adict no J[alslmry 's Laws of England. 2nd Ed. 449, para. 7G8, part of the evidence, and would not· shock reason, i:; adopted; but the caseH there cited do not Hupport and, therefore, hel' death is llOt proveil with moral certa inty : Kenny's Olltlines of C'J'1'minal Law. 15th o the latter part of the text: see Ifodge 's Case ( (1838) Ed. 402, and Wals on C:'ircu'tnsiantial E1'idence, 7th Ed. 348. rfhe degree of certainty reached in R. v. 2 Lewin 227; 1G8 E.R. 113{». In Reg. v. ([Jrdne'}' Inndmar-sh ( (1792) 2 Leach 569; 16R E.R. 387) was ( (1859) 1 F. & F. 669: ]75 E.R. 899), the charge not reached in this case: see Peacock's case ( (1911) vvas manslaughter', and the lighting of a match was 18 C.L.R. 6] 9, 628). The learned trial Judge ~'eferred held to be direct evidence on a charge of having done in the summing-up to the hypothesis put fOr\vard by damage to a ship. R. v. Taylrw, lVeaverj and Donovan the <1efence to account for the woman's disappearance. ( (1928) 21 Cr.App.R. 20) is merely an authority for Notwithstanding all that His Honour said, there was the statement that circumstantial evidence may be not enough evidence to produce moral cOllviction, 01' useful in murder cases. In R. v. Mason ( (19fl) 7 to dispose of the hypothesis put forvval'd for the Cr.App.R. (7), there "was direct evidence, and 'also defence. rfhe defence \vas not bound to put forward a confession. In R. v. Robertson ( (1913) 9 Cr.App.R. 189), a case of child murder, the remains were found any hypothesis for her disappear'ance. His Honour beneath a floor, and the case is not an authority for saying that circumstantial evidence is sufficient to did not put to the jury the further possibility-which prove death. The passag'e in Roscoe's Cri"tninal Evidence} 15th Ed. 872, is adopted; but the state- arose out of the cross-examination of witnesses by the ment at p. 874 does not whittle away Hales' rule. An examination of t.he cases will show that there has been defenee-that Eileen had died in New Zealand or had no relaxation of Hale's rule that death must first be left New Zealand after January 194~~. It is plain proved. In Garrow's Criminal Law in New Zealand, 3rd Eel. 115, ] 1fi, the learned author, in dealing with that no one examined the entries in the Deaths Register made after that month. ~}very reasonable R. v. B1'own ( (1911) :n N.Z.L.R. 225, 238), goe8 possibility of her being alive must be excluded. It rather too far. Reg. v. Woodgate ( (1877) 2 N.Z. Jur. (N.S.) C.A. 5, 12), which ls to some extent was vital that the jury should be directed with against this argument, was wrongly decided. There was a confession; the judgment ,,,'as criticized in extreme accuracy on the point: see Phipson on (1877) 2 N.Z. Ju1'ist Jo. (N.S.) 65. It was really a Evidence, 8th Ed. 253. On that ground alone. the conviction cannot stand. VOL. VIII] LAW REPORTS 229 Skieff, in support. rrhe learned Judge directed (No. :3) (l19461 N.Z.L.R. (;60). If, on consideration of anyone of the thl'ee grouuds for appeal, 2, :2 (a), the jUl'Y erroneomdy in his summing-up, ill that he and :3, the Court concludes that there has been a misdirection, then the conviction should be quashed, declined to direct the jury that, in the absence of f01' the reasons given by ..\1,'. T ll'rne'l'-llamely, that, in view of the publicity given to the appellant by di"ect evidence of the killing 01' of the death of .Jlary Tl'ldh) it would be impossible anywhe,'e ill Ne\f Zealand to find a jury of which it could \\"ith certainty l~Jileen rrul'ner, thel'e was 110 onus upon the prisoner be said that it had not been influellced b.y such publicity: see R. v. Clark ([194G I N.Z.L.H. 522). t() account fol' hel' disappearance 01' non-production: V. R. 8. Me'J'eciith. for the CJ'()\\"ll. Proof of actual see 9 lIal~lnl'I'Y'~ Law~ of England, 2nd Ed. 449, or death call be established bv circumstantial e\'i'I'OSeCu,t1:ons ( [1935] A.C. 462, 480, 481), His Honour's refusal to direct the jury on a question of onus as laid down in 2 I-Iale's Pleas of the Crow'n) 290., was a whittling away of the rule that the Crow11 must prove its case, and there was no obligation on the accused to J>efute it. By his refusal, he in effect directed the jury that there was an onus on the accused to explain. But thm'e was no such onus. The furthest His Honour should have taken the matter was to direct the jury to weigh what had been said 1"01' the accused by his counsel and by His HOllour. His Honour's direction invited the jury to consider that the accused had failed to account for his \vife's ditmppearance. Nothing can be taken from the accused's silence, and comment should not be ma(le (as in this case) on the failure to explain: R. v. D'I'oux ([1936] 2 D.L.R. 780, 786). A second inter- pretation of His Honour's direction is that there should not be comment on the accused's silence before the trial, afte,' he bad been warned: R. v. N aylo'J' ([1933] 1 K.B. (85), R. v. Leckey ([19441 K.B. 80, ~6; [1943] 2 All E.H. (j65, 6(;9, (70), and R. v. Jfa'l'eo 230 LAW REPORTS [VOL. VIII new trial was granted on the evidence of an accom- his occupation as a tailor. rrwo days later, on April plice: see R. v. Robertson ( (1913) 9 Cr.App.R. 189, 17, 1942, he called and stated he wished to close the 191), R. v. Nash ((1911) 6 Cr.App.R. 225, 228), account, as he was leaving 10l' Australia on secret and R. v. Davidson ( (1934) 25 Cr.App.R. 21, 25). work for the New Zealand Government. He withdrew the sum of £6, using a counter cheque. There was no As to the affidavit lodged: It cannot be received, evidence as to when appellant first met Eileen. and this Court cannot consider it: see ss. 4 and 5 of During the first week of July, 1942, Eileen told her the Criminal Appeal Act 1945 and Gan'ow's Crirrdnal employer, a Mrs. Bennett, her mother, and her sister, Law in New Zealand, 3rd Ed. 380. All that this of her approaching marriage to appellant. He had Court can deal ,"ith is this caSe as heard in the introduced himself to Eileen and to her friends and Supreme Court. If a new trial ,yere gl'anted, the relations as George Arthur Turner, under which name matter should come before the Supreme Court for he was married. He regaled them all with stories as decision on an application for change of venue. to his antecedents and associations which were quite untrue. ,\Vhen appellant first took the licence to the Turner, in reply. If the Court comes to the minister who was to marry them, it was arranged the conclusion that a new trial should be granted, then it wedding should be on July 2, but appellant sub- should go further and quash the conviction. If justice sequently asked fOl' the licence back, in order that has been perverted by the article in Tndh and by its certain alterations could be made relative to his posters, the affidavit should be read. It is relevant birthplace and to his mother's name. 1'he particulars to the issues before the Court, and is admissible under in the first application were in fact cOlTect, and those s. 9 (c) of the Criminal Appeal Act 1945. On the in the second application incorrect. Eileen pl'ovided q1lestion of onus, it is conceded that the jury was herself with an elaborate trousseau, and had much of entitled to take into account the fact that a false the undel'clothing specially embroidered; her clothes explanation had been given; but His Honour went were viewed and admired by many of her ,,'omen further, and left the jury with the impression that friends. She bought as 'well a hat-box and two :mit- there was an onus on the defence. In this case, an cases. She gave away her car to her brother, and put exceptionally high degree of proof is required: R. v. in train the sale of her house property. The day McN'icholl ([1917J 2 I.R. 557, 584). On the evidence, before the wedding, she withdrew all the money she one cannot exclude either the possibility that the had in the savings bank-ovel' £300. 'l'he solicitor appellant's wife went to America or the possibility acting for her deposed that, on a sale of the property that she died betlveen January 1943, and April 194:~. having been effected, she desired to have the trans- action settled as soon as possible, and Ih'iday, July 10, On,/,. ad. 'vult. ,vas fixed, though in fact it was not settled until the morning of Saturday, July 11, the day of the The judgment of the Court was delivered by wedding. She received a cheque on the solicitor's trust account o.ra"Yl1 in her fa\Tour as (( M. E. Jones GRESSON, J. rrhe evidence as to accused having or order" and marked (' Not Negotiable." It was murdered :Mary Eileen Turner (hereinaftm' called for £687 fis. 8d. The wedding, at the Pitt Street " Eileen") was wholly circumstantial. The facts .JIethodist Church at 11 a.m. on Saturday, July 11, on which the CnHvn relied were not seriousl v contro~ was attendeo. by Eileen's parents and some friends verted. The more important facts and cil'cu~mstances and relations., Eileen's mother had 110t previously as deposed to in the evidenee are as follows: met her prospective son-in-la,\'. When Eileen's sister had been introduced to him, he had told her he V.'aS Appellant "vas married to Eileen on July 11, 1942. in the Secret Service, and said he could not explain She 'was then thirty-eight years old, and had divorced his work, as it was of a secret nature and yery a previous husband in 1939. Appellant was a tailOl'; important to the \ra1' effort. He said he had lost his he had been employed at the :lVIaida Vale factory since mother, father, brothers, and sisters in England :March 13, 1942, and continued to be employed there during,a bombing raid. '1'he sister \vas told that, until July 24, 1944. During the whole of that period after the marriage, he and Eileen would be going he was absent from work only five ,yhole days--- oyerseas, first to Australia, and then on to England. namely, July 15, 24, 27, 1942, and October 5, G, '1'he story as to appe]] ant 's being engaged in Secret 1942-alld for part of the day on April 17, 1942, Service work ,vas again told at the social gathering June 2, 1943, and ~Tuly 24, 1944. Before his mal'l'iage following the wedding. No photographs Wel'e taken, to Eileen. appellant had been associating with a as appellant would not permit this. After the woman, Eunice Marcel Geale, whom he subsequently wedding breakfast at the Royal Hotel, Eileen went married on December 12, 1942. On April 15, J942, to her old home at 9 JOh!l Street to change her clothe~ he opened an account at the National Bank of New anci put on a travelling-costume. In the aftel'noon, Zealand in Auckland in the name of G. Ho]'ry. He the married couple left in a rental cal'. Ej]een 'H asked to open a joint aecount in the name of himself mother was told she could not be informed when they and :Miss Geale, but, when told it 'would be neceSSal'y arrive(l in Australia. Appellant said that, eyell 1f he for her to calJ, said that was not possible and opened the account in his olYn name with a deposit of £6. He sent a cable) it might be a code and the Germans told the ledger-keeper he had been discharged from the British Army and sent out to New Zealand to undertake work connected with the war. He gave VOL. VIII] LAW REPORTS 231 might pick it up. He ~aid it would be about tln'ee whether the cheque had been duly lodged, he said he alld a half month~ before anv wOl'll could be received. had gone to the Commercial HoteL A. fortnight later, Eileen was nevel' seen agai;~ by any member of her the account was closed by the drawing of three family. cheques, the first, dated July 17, for £:160, the next, The malTied couple spent the night at the Helens- dated July 20, for £300, and the last, dated July 27, ville Hotel, al'l'iving about eight 0 'clock on the for £107 6s. 8d. All these cheques were paiel in cash. saturday evening. At eleyen 0 'clock Eileen nmg On July 27, 1942, appellant returned to the National through tt) her solicitor in Auckland at his home and Bank, where he had had an account ill April, 1942, left a message for him to ring the hotel whatever and, after informing the bank officer that he had time he came in. He did so about midnight, and returned from Australia and 'wished to reopen his recognized Eileen'~ voice. She apologized for account, deposited £300 in cash. He stateti as ,yell troubling him, but ~aid the matter "'as urgent, and that the account ,yould be fed bv his future wife and that she had not been able to cash thl~ cheque received himself. A further deposit of £100 ,yaH made Oll from him. She asked whether it could be made an October 28. Foul' cheques ,,'ere dra'''ll against the open cheque, so that ~he could cash it. This he refused account in October, November, and December, the last to do, informing her that she could herself bank it being on December 22 for £239 lOs., which exhausted and al'l'ange with the bank to clear it. She then said the creclit, This account was maintained in the llame her hu~band wi~hed to speak, and introduced the of G. C. Horry, 1:35 Landscape Road, Mount Edell, appellant through the telepholle; he repeated the which wm; the address he had given originally in request that the cheque be made an open one. Though Apl'il, and which he ,again gave on hilS l'etul'n. In August 1942 a letter dated July ~G, 194~, he wm; most insistent, the solicitor persisted in his refu:->al, and the conver:->ation ended. Appellant and headed" Sydney" and signed" Geo]'ge and Eileen," Eileen left the hotel early the next morning. rrhey wa~ received by W. Spargo, Eileen'lS rather. It told paid a vjsit to a .JIiss Shepherd 011 the main road of their safe arrival in Australia, said that they were at Titirangi about eleven 0 'clock on the Sunday leaving for England almot->t immediately, and added morning. They told hel' they were going away and that: ,nmld pass overhead in an aeroplane, and fOl'bade any Eileen is busy just now Wl'i ting a letter to some one else t'm'ther inquiry as to theil' plans, on the pretext that antl she asked me to scribhle theBe few lines to you so that you important military business vvas involved, i\l iss would not be disappointed. Shepherd saw them off at the gate dl'iving citywarcis. It was stated that the next letter 'would be from rrhat was the last time Eileen wm; evel' seen. England and might be looked for about October. It C;onsiderable evidence was led as to appeHallt's was proved that this letter had in fact been sent by movements and conduct thereafter. rI'he l'ental cal', the accused to the manager of the Hotel Australia, which was due to be returned at S p,m. on Julv 12, Sydney, with a covering letter asking that it be was retul'ned by appellant about 5 p.m. on i\I01;day, 'delivered to a .Ml'. T. L. Langton if there were such a July 13. '1'he1'e were some further charge:->, and he guest at the hotel, but that, if not, it should be posted asked that the account be sent to 2\Iiss Jones, 9 John back; the covering letter wafS signed" an ex-guelSt, street, Ponsonby, as the hiring was in her name. 1'hi::; W. Spargo." rrhe manager of the hotel, after keeping the parking-station propl'ietol' refused to do, as he the letter for some ten days or so, sent it to Mr. was aWal'e the house had been sold, and accOl'dingly Spargo, but with a covering letter explaining that, appellant himself paid. On July 14, appellant applied there being no l'ecor(1 of a .Mr. rr. L. Langtoll, the to open an account at the Auckland branch of the letter was being returned. Early in December 1942 Union Bank of Ausil'alia in the name of Charles ~lrs. Spargo became uneasy, and consulted the Police. Anderson, presenting £80 in notes and the cheque fol' On December 19, 1942, the appellant appeared at £()87 615. Hd. which had been paid to Eileen. He "Jlrs. Spargo's home. In an8,,'et' to her question where represented he ,yas an agent of J. Tm'nel' and Sons, Eileen was, he said he had eome to bring the ne'ws Sheffield, England, who were, he said, cutlery manu- that they had been ,,-recked on their way from facturers then engaged on munitions ,,-ork. He saiel America to England; that a German :mbmarine had .:vIr. rrurner of that firm had married a :Miss Jones on sunk the Emp}'ess of India, on which they ,,'ere .July 11, 1942, and that they had to leave, or had left, travelling; and that the ,,'omenfolk were put in hurriedly. rrhe bank officer would not ,yithout inquiry lifeboats, Eileen among them, and not seen after- accept the cl'ossed " not negotiable" cheque, which \val'ds. He said he himsel I' had been picked up by a had been endorsed ~ being unable to make the British warship, and that he had to return to a inquiries by telephone, he permitted the account to British boat, then in Auckland, and had to be back be opened with the £80 in cash. When, later, the by 12,80. He said he ,,,as going to try and trace cheque came back from Eileen's solicitor with a Eileen, and would write later if he found any trace certificate that it appeared to be properly endorsed, whatsoever. He left soon afterwards, He claimecl it was lodged to the cl'ed it of the newly opened cables had been sent, but none \vas ever received by account, making in all a credit of £767 G8. 8d. the Spargos. In fact, there was no such Hhip as the Appellant gave his cl