SUPREME COURT-Monday.

Thames Advertiser, Volume VII, Issue 1882, 20 October 1874, Page 3

SUPREME COURT-Monday.

. (Before Sir G. A. Arney, Chiol Justice.) [Br Elbcthio Teiegbape.] THE QUEEN V. HEED AND BRETT. CBIMINAIi IKFOIUtATION FOE LIBEL — SPECIAL JUDY. Tlie following jury were empanelled :— J. 0. Firth (foreman), E. C. Taylor, Jas, Dil worth, B. Walker, T. T. Masefield, 0. W. Pye, C. Tothill, W. T. J. Bell, W. J. Taylor, E. Hartley, T. B. Cameron, Barton Ireland. Mr Gillies and Mr Hesketh appeared for the prosecution; Mr MacOormiclc for Reed and Mr Rocs for Brett. 'Defendants pleaded not guilty. The following articles, upon which the charge of libel was founded, were read:—

As we are hippy to giye opportunity for unfolding any views However differing from our own we gladly give insertion to the following letter, to which, we add our own comments; — "To the Editor: Sir,—Regarding the case tried at the Thames Police Court 011 Wednesday last, when Mr Thomas Maiming was tried aud convicted on a charge of a breach of the Quartz Crushing Regulations, and fined £200, which severe Gne being unable to pay, he had to adopt the alternative and go to guil for three months with liatd labour. It might be well for the Thames police themselves, and for the satisfaction of every person connected wish the miniug interests of the field, to inquire aud to have a full and satisfactory reply to such inquiry as to how and where Detective Brennau obtained the 71bs of gold-bearing stone. The whole circumstances of the case have been fully commented upon by miners and others interested in the mining districts, and have elicited a profound feeling of disgust at the conduct of the police in the matter, as well as a profound feeling of sympathy with Mr Miauing, who, although guilty of a breach of -he law, was, to say the least, brought to the bar of justice through underhanded meaus as a fe-ipegoat for others. The remarks of the magistrate in delivering the sentence, which, though harsh, was uuavoidable, merit the approval of every lover of fair-play. The simple question now is —If the stone was stolen, who stole it ? The informer, Cass, or the detective, Brennan.—A Thames Miner."—As this is a free country, we may be permitted to express our own views 011 this subject, and this we do without obscurity or prevarication, and we do not hesitate to say that the magistrate who showed such a sympathy with crime as to censure the police in the circumstances to win the pluulits of the roughs in Court, is a disgrace to the bench, and should be deprived of Her Majesty's Commission. The offence of Manning wa< one exceedingly difficult to detect, and Detective Brennan took the only means available for its discovery. We are aware how deep the sympathy felt by scoundrels for this specimen stealing, and we cannot but express our extreme surprise that a magistrate whose sympathies should be on the side of law and hoaesty should litve deliberately pandered to the- lowest principles of the lowest cauaille at the Thames. We trust that the magistrate's conduct will be represented at head-quarters, aud that he will receive the recognition which such conduct deserves. As to the senseless query of our correspondent as to whether the detective or the informer "stole" the specimens, we have only to say that we do not see any necessity for the supposition of their 'having beeu stolen at all. Probably, however, our correspondent's experiences in that direction may lead him to a different conclnsion.

Referring agaiu to the letter in last night's ' Star' on the Thames Magistrate's remarks in the quartz-crushing ease, we notice that the writer commenting on the conviction, says, "The whole circumstances of the case haw been freely commented upon by miners and others interested in olie mining district*, and have elicited a profound feeling of disgust at the conduct of the police in the matter." If the police have aroused the indignation of the miners they hive secured the sympathies and the gratitude of the shareholders who have with great patience, and at great expense, developed their mines for the benefit of. such nice little crushing arrangements as we had a specimen of in the case in question. The system of specimen stealing has assumed such magnitude, and been carried on with such secrecy by the aid of these private crushing plants, that the principal companies on the field formed an association and 'offered liberal rewards to the police or others who would aid them- in bringing the thieves fo justice. The police have had very great difficulty in getting at some of these pest places. It may easily be understood that the men who got tlieir "haul" crushed at these places were not likely to "split' on their accomplices, Had they done so they would have "split" upon themselves. The specimen crushers therefore knew they were safe, and could crush with impunity all th i grist that came ;o their mills. Under these circumstances the police were perfectly justified in the course of action they pursued in the case of Manning. They did nothing more than the police iu Auckland have repeatedly done to secure conviction under the Licensing Act, and if such action is justifiable iu the one case why not in the othed If the police, in taking such means to bring home guilt to persons who have 'offended against the Licensing Act, have noi brought forth opprobrium, but have secured the applause of the community, why should they be branded with reproach for taking the sinie means to sccure conviction under the Quartz Crushing Act, Resident Magistrate Fraser may be able to toll why—we cannot. In reference to our correspondent's insiuuitionthat Detective Brenuan stole the quartz specimens that he sent to Manning's mill, it is sufficient to say that the association before referred to will, we have no doubt, gladly answer for the detective iu that matter. We would fain say a word on Resident Magistrate Fraser's righteous howl, but we are afraid to trust our pen to write of his conduct. Yerily we would rather afcmd in the detective's place on the floor of the Court than sit in the Magistrate's chair and be the author of such a magisterial homily on justice and manliness as that which fell from the lips of the just diseerner between right and wrong on the occasion referred to Such a homily mast have a very injurious effect on the minds of the specimen-stealing gentlemen—a higher than the cauaille. It will send them forth to their nefarious practicea with, renewed courage; it will stimulate to greater boldness in " making plants" of specimens, and the result will be that the be3b interests of the best mine 3 will sutler. Resident Magistrate Fraser's live years of magisterial experience have not bestowed upon him an undue ainouut of magisterial prudence. We cannot conceive anything more mischievous in its tendency to injure the best interests of the Thames goldlield than this injudicious homily of the Thames Magistrate. Surely the gentleman forgot where he wis sitting, IE he did it is not too late for him to make the amende honorable to a class of men whom he lias unjustly and uuwanuntly maligned, and by whose diligence and tact a growing and a serious evil has been receiving a check on the Thames gohllield. Wo do sincerely hope that the Minister of Justice, if there is such an officer now in existence in New Zealand (or in case of his non-existence), the Uovernmciit will institute an inquiry into the con luct of Mr Fraser. He is popular, we know, at the Thames; and in advocating this course we shall give offence. But if his popularity has been gained by pandering in this way to the lawless sentiments of the rabble, that popularity is a reproach to the administration of justice; aud as we care not for the smile or frown of man or d;vil, we do not hesitate to reiterate that auy magistrate for such an set should be visited with severity by the Government of the colony.

We read in the telegram* o£ this morning's ' Herald' that the Thames' cifcar' baa espounid the cause o£ the specimea-stealm and their magisterial sympathiser, Mr leaser; and'in doing so deals heavily with us in its own small way We are not surprised at this, for thai TOtqlied. little lwr, whiqh in bjr

bearing our name, owes its existence to speci-men-stealers, and tlie continued action o£ the police in the course now adopted would drive from the goldfield its chief patrons and supporters. As the 'Thames Advertiser,' the 'Daily Southern Cross,' the 'New Zealand Herald,' and this journal, have all given utterance to the instinctive feelings of honest men, it is perhaps fair that the rogues should have, an organ, aud irrespective of the fact that we believe Mr Fraser to be himself the writer of the article in question, it is wholly natural that the specimeu-stealers should have an advocate in the Thanies 'Star,' It is quite unnecessary for us to enter into any argument to show the necessity that there was for the police to take such a course if it was desired at all to stay the work of crushing stolen specimens, Of course if it is not desired generally, as it evidently u not by some, then the police should be censured for allowing their zeal for honesty to outstrip the public will But as in ordinary cases the quartz crusher and the thief are bound alike to absolute secresy by a common danger, as any scrupulousness on the part of the crusher will only drive away a customer, and deter other customers of a similar class from coming, if the police must famb'e their batons till a case of guilt comes into their hands, they are likely to walk about as long as till Mr Fraser is made a Judge, We do not hesitate to say. that there is not an honest man in Auckland province but approves of the action of the police, and will rejoice that an evidently habitual offender like Manning has been trapped, aud we have equal confidence in asserting that it is the duty of the (.iovevnment to inquire into the conduct of the Resident Magistrate, and consider whether iu the circumstances it might not he advisable that that lie should be removed to s-ome other sphere, not by way of punishment, but to effect a separation betw,eu him and a class of persons whose friendship and applause lie evidently courts, ,',sa specimen of the logic wherewith their organ defends the thieves, and condemns the action of the police, we give the following from the Thames 'Star:'—"The police were guilty of procuring the commission of two crimes because they 1 suspected' a man of being guilty of one, so that it the principle were carried out in other directions men might be tempted to steal specimens in order to afford proof that spccimens were stolen " If any one will explain to us the meaning of the writer or the connection of his inferences we shall plead guilty to gross stupidity. If the thieves' oracle means anything at all it is that it is a crime even to " suspect" one of its proteges. But the article proceeds, " The principle is opposed to every axiom of English jurisprudence to do anything which would lead to the .commission of crime, especially when the end sought is to prove the character of the police for smartes,' We should like to know any one axiom of English jurisprudence, unless it be in the thieves' code, which is antagonistic to the trapping of thieves; aud there are few who do not know how common it is, for exiniple, to send a marked money letter through the post-office, althmgh in this as in similar cases th-ive is something more important sought than the object mentioned iu the Thames 'Star's' remarkable anti-climax, proving "the character of the police for smartness/' We feel, however, the difficulty of carrying on an argument with our small contemporary. We reason from a different standpoint. Our premises are bweil oil different codes of ethics. Theirs are of the moral principles of Newgate, ours of honest men. The little organ of the thieves twits U3 with pandering "to the prejudices of Auckland speculators." Heaven knows we bear down often and heavily enough on "Auckland speculators;" and it they have any gratitude in their souls we lay no claim to it, liiit bad as they may be we respect the " prejudices" of these or any other men when these '"'prejudices" are simply "prejudices" against being robbed. Hundreds of our small '1 hames contemporary's patrons who have borne the garb *of simple working miners have gone home to England laden with the spoils of shareholders, and if these shareholders have an objection to this, upon ■ our honour we respect their prejudices. This action of Mr Eraser's has been a very dirty business, aad the more he stirs it up bv writing in the press the more unsavoury the stench.

Mr ffeslceth opened the case for the prosecution, and tho following evidence was taken: -

John '.dwin Macdonalddeposed: lam a solicitor practising at the Thames, and have been so for some years. I know Mr William Eraser, llesident Magistrate at the Thames. He has been acting in that capacity for several years. I was present when a man named Manning wa* brought before_ him and tried, for illegal specimen crushing.

Mr MacOormick objected to tho witness being examined iu a general way as to the naluro of the case on which tho remirks wero made which form the subject of the alleged libel.

• Bis Honor thought that the alleged libel itself admitted that the charge was one of a breach of the Quartz Crushing Machinery Act,

Examination continued: The result of the trial was that Manning was fined £200, with the alternative of three months' imprisonment. The trial took place on the Bih of April last. I heard ihe magistrate make sorno remarks on the course of the case. Ifl am allowed to refresh my memory by looking at the report which appeared" next morning in the ' Thames Advertiser,' aud which was a very correct one, I can give almost the exact words. I read it the morning after the trial. The Eeaident Magistrate said ho hud nosv been a Resident Magistrate for five years, and this was the first time he had known the police lower themselves by condescending to this method of getting up a case. He much regretted that the police found it necessary toresortto this step, He would have been much better pleased to have gone on as llesident Magistrate without such a thing haying occurred. It was contrary to the spirit of justice and fair play, right or manly feeling. _ He concluded by saying that the business of the police was to prevent crime, not to induce people to commit crime for the purpose of making out a case against them. Captain Eraser afterwards remarked, iu answer to my appeal for a mitigation of sentence, that the conduct of the police fjrined no palliation of tho conduct of the prisoner. I have read the three articles in the newspapers produced (' Evening Star' of tho Ufcii, 10th, and 11th of April.)

Mr Gillies: When Captain Fraser made those remarks did tho matter or manner of them indicate any desire on his part to sympathise with Maiming? Mr dices objected to this question. Tho • defendants had commented upon those remarks as they were reported, and wero not present to judge of the manner of their delivery. They deduced the sympathy from the magistrate's comments as they appeared.

Mr (jillies said ho wished to show that the remarks wero not made to win the plaudits of the roughs in Court.

The question was disallowed, and the examination conliuued. I have never known Captain Eraser to " paiubr to the lawless sentiments of the rabble." His conduct impressed me the other way, and especially in the caso iu question. Dross-examined by vir MacOormick: The charge against Manning was really a breach of the. Quartz Urusliiug Machine Regulations and inspection Act, 1871 i roside at the Thames, That case was the lirst brought uuder that, Act there within my knowledge. I do not know whoiher the regulations came into jlorce in July, 1873. I appeared at the trial of Mauuiug on his behalf. I called no evidence, but addressed the Benolju. Captain Feasor made tht? qommqntq in.

question immediately after I closed my address. Immediately after the magistrate had concluded his remarks there was considerable applause in Court. It was pretty well filled, as it always is on those occasions. The remarks the magistrate made about the conduct of tho police not palliating the offence was after some discussion. The magistrate said that whenever he allowed his feelings to carry him beyond the law, he always got into trouble. The proof against Mauning was, iu my opinion, overwhelming. It had been for some time a matter of general complaint at the Thames that there was too much facility for the crushing of stolen specimens, and tho Act of 1872 was passed to restrict it, JS r o solicitor appeared for tlie prosecution. 'It was conducted by SubInspector liullcn, Constable fireunan, and a man named Cass. Ido not recollect any article in the ' Thames Advertiser' about it the nest day. It was not until after the arlicle appeared in the 'Evening Star'that the ease was much discussed. I was present at a meeting of Mr Eraser's friends subsequent to that.

The question was objected to, and Mr MacOormiek said that it had been opened by the other side, that this was a public prosecution, aud ho was entitled to give ovideuco on that point.

His Flouor said that Mr Fraser'shaving a ruoiting in August roild form no juslificalioa of a libel published before that date.

Mr MacCormick'"said ho would not press the question, but would mention that the meeting took place after the rule was applied for.

Rxunrination continued: The matter did not create much excitement at the Thanies, and then only on articles upou tho subject iu tho morning papers in Auckland.

By Mr Gillies: When the papers containing the alleged libels came to tho Thames they caused considerable excitement.

William Fraser, examined by Mr Hesketh, deposed : I am Resident Magistrate of the district of Hauraki, and hare been acting in that capacity for five years. In the month of April last I presided at the hearing of a charge brought against one Manning under the Quartz Crushing Eegulations Act. Manning was represented by counsel, and I adjudicated upon llie charge in my capacity of Resident Magistrate. I found the defendant guilty, and inflicted upon him the full penalty that the law would allow, in doing so I made some remarks on the getting up of the case against the accused, The remarks were that f thought the police had exceeded their duty as police in inducing a man to commit one crime so that they would succeed in entrapping another man into committing a crime of the same description. All the police counected with the getting up of the case were present at the time. I have seen the issues of the Auckland ' Evening Star' containing the articles of which I complain. The last refers to an article written in the Grahamstown ' Evening and insinuates.that I wrote that article. I did not write or inspire that article, and had nothing whatever to do with it. The geutleman who wrote it afterwards told me that he did so, and he is up here now. I have never written to the press about the matter, or authorised anybody to write, or asked any one to do so directly or indirectly, from beginning to end. My motive for making the remarks was that I believed there was no right, either in law or justice to entitle the pQlice to get a man to commit a crime so as to induce another man to commit a similar offence; that while they had a perfect right to send a policeman to a public-house to get a case against a publican, they had no right to do as they did in the quartz crushing case. I had no wish, in making those remarks, to " win the plaudits of the roughs in Court." I desired to show the police that they had exceeded their duty, and my sympathies were not with the specimen stealers. They were in the other direction, and I have always given my assistance towards putting down specimen stealing. In fact on one occasion I allowed my feelings' to carry me beyond the law, and sentenced a man to twelve months' imprisonment, wlien this Court ruled that I could only give him six. In bringing this action I have no private feeling against the defendants. I look upon one as one of my friends, and as to the other gentleman, .rfr Keed, who is said to have written the article, I do not know further than that he was the gentleman for whom I ought to have a certain amount of respect as he is the Provincial Treasurer, and who brings down the. estimates and votes my salary. As the articles were directed against mo in my official capacity, unless. I took steps to show that the statements were not true, and if I had not dono so, I consider I would be unworthy of the position I hold.

Cross-examined by Mr MacOormick: I consider that the man Cass, who aeted as informer, committed a crime, because it was rendered such under the Quartz Crushing Regulations Act, for a mau to get stuff crushed and refusing to give his name. I'hafc is my construction of the Act. I did not cause proceedings to be taken against Cass because the man who crushed the Btuff was then under sentence of a fine of £200 or t three months' imprisonment. Cass at first refused to give Manning the information required by tho Act, but tho latter afterwards consented to crush without suchiuformation. Ido not know that the evidence showed that Manning had committed an offenceby not proceeding against Cass for refusing togive the information. They condoned the offence against Cass by putting him iu the wit-ness-box to convict Manning. I consider I was jusiilied iu making the remarks I did before giving judgment in the case. There might have been specimen stealers amongst the audience. There might be here, or anywhere. There had been several cases brought under the Act before this. The Bunk of JNcw Zealand had been convicted, under tho same > ct, of delaying to livtke the entries. I could impose a penalty in that case of £5, which I did. I believe there was a case against the Willoughby -.Redaction Works, which broke down. I s;iw uo comments on the case until after I saw the articles in the ' rftar,' written a week after. I did not see an article iu the 1 i haraes Advertiser' specially charging me with sympathy with the speoimen-scealers, nor did I see .articles censuring mo in tho 'doutheru Cross' and 'JNew Zealand Herald.' I took no proceedings against any other paper; one at a time I found was quite enough. I have seen nothing in any other paper which would justify me iu taking proceedings. There was some applause in the Court when I made tho remarks before sentencing tho accused, but it was instantly suppressed.

Cross-examined'by Mr ilees: I went up to Hikutaia when tlio goldliolds tliero were proclaimed, Some of the minora went up there, too. . I knew everyone of llio miners wliq went up tlwre, I didnpij

see .any of the miners ■ in Court who travelled with mo to Hikutnia.

Mr Gillies wanted to know the object of the questiion. His Honor imagined it was to show that Mr Eraser wished to please those miners whom he had seen at Hikulaia, and whom he noticed in Court, But how could that prove that the statements complained of were true P

Mr Rees: About this limo were you not in the habit of making bets about the results of claims that were being investigated in your Court?

Witness: On only one occasion I nude a bet with a man about the result of a claim, but that was two years before this occurrence.

Honor: You surely don't mean to say, Mr Rees, that you aro going to inquire into the whole magisterial career of this gentleman P

Mr lices: I wish to examine especially as to decisions on gold mining questions.

Mr Hesketh: The bet, your Honor, was not about a case, but about the result of the working of a claim.

Witness: I never made a bet on anything or any case that was within my Court. I did not say I had. If I did it was under a misapprehension of your question. Mr Roes: Did you not make a bet or bets as to the price of shares in a claim or company which you were then adjudicating upon ? ■

Witness: No,

Cross-examined: The letter produced is mine, and is in relation to the bet. It is dated sth September, 1872, and is addressed to Mr Sully, Mr Gillies submitted that the letter dated 1872 could have nothing to do with a libel alleged to have been written in 1874. There had been no justification pleaded also, and this evidence must be directed to show that the newspaper comments were correct.

His Honor srid he thought the evidence could only be received in support of a plea of justification, which had not been entered.

Cross-examination continued: Looking at this letter, I adhere to my statemenc that I never made a bet about a claim or anything that was within my Court. I do not think that on the 7th September, 1872, when the letter was written, there was a case pending between the Queen of Beauty aud Bright Smile claims in my Court. His Honor ruled that this liue of evidence could not be continued. The amination must be confined to the allegations of the alleged libels as to sympathy with specimen stealers, the panderiug to the canaille, and so forth. dross-examination continued: I did not order proceedings to be taken against Cass because he was used by the police against Manning, and his offence was condoned, so that it was in a manner outside my interference. Cass first thought he was getting the stuff crushed for Detective Brennan privately, and which he (Brennan) had got unlawfully, and it was not until after he had committed the offence, and got Manning to crush the stuff, that he discovered he had been an agent of the police. He said that if he had known Brennan was acting as a policeman he would not have done it, but thought it was no real crime to help a mate to get soma stone crushed. After the prosecution, some one wanted to proceed against Cass, but he was got rid of and was out of the place. There are people there now who intend to prosecute Cass if he returns. I know that there was a certain amount of specimen stealing going on at the Thames some time ago on the goldfields, and I have used every means within my power to stop it. The notes of the evidence in the case of Manning were taken out of the book. My impression is, that, those notes are in the possession of the defendants. 1 That always was my belief.

Mr Bees: Then, if they have them, they came by them dishonestly ? Witness: Without my consent.

Mr kiees: Do you not know that the mouths of the defendants are closed P You complain of'libel against yourself, when you make such a statement as that!

Cross - examination continued : Cass stated, on oath, that Brennan instructed him not give his name. Ido not know whether Brennan was asked anything about it. The report in tho r ' ! hames Advertiser' gives the substance of what I said. There is not much difficulty in delecting the illegal crushing of stone. The difficulty is to find out the specimen stealing. The former is easily evaded by men giving in fictitious names, and it showed that Cass was a novice at the trade for him not to have done so too.

- He-examined by Mr tfesketh: I took full notes of the evidence in a book. I always do so, both as Warden and as Police Magistrate. Those notes have been cut out of the book from the desk in Court. I did not discover the loss until after I returned from a visit to the fiast Coast in May. ,It was found out by the clerk, who thought at first that the notes, referred to a probable perjury case. On lookiug at the book t saw that they were notes of Manning's case. I do not know who removed the notes. No one had access to them except the Clerk; of the Court and police. >he Clerk of the Court is here to give evidence. .

James Hopcraft, the next witness, examined by Mr Gillies, deposed: I, am part proprietor of-the Thames 'Evening Star.' 1 remember seeing the article in tho Auckland 'Star' produced of 11th April. Caj)tain Eraser was in no way, directly or indirectly, connected with ttie writing in the Thames' Star' there referred to, nor in any way concerned in its publication. I don't suppose Captain Eraser could by any possibility know anything about tho article until lie saw it published. The articles in the Auckland 1 Star' of tho 9th, 10th, and 11th j created considerable excitement at the Thames in reference to Captain .Eraser aud to Manning's case.

John Salmon, examined by Mr Hesketh, deposed: lam the manager of the Imperial City mine. . I hare been on the gold Held siuce the end of 1870. I know Mr Fraser, the llesident Magistrate there. Ho is the only magistrate we have at the Thames. I remember whoa the articles complained of appeared. I read them 1 have no doubt they refer to the William Fraser examined to-day. When the 'articles were perused at the Thames there was a general disbelief in the statements they contained, and considerable excitement in consequence. The feeling was that with regard to Captain Eraser's remarks it was a question of taste, but that so far as the articles in the Auckland' - tar' were concerned there could be no question they, were wrong, and that there was nothing to justify them. I havo had special opportunity of observing tho conduct of Captain Fraser as magistrate.

The Court ruled that the witness could only be examined as to Captain Eraser's conduct on the ocoasiou in question. M.t Gillies said ho had several other witnesses to call who could testify to a similar effect,, but Iw did. not think it

necessary to bring them forward, and would rest the case for the prosecution on the evidence adduced, having proved the libel.

Mr MacCormick and Mr Rees stated that they had no evidence to adduce.

Mr Gillies raised the question as to whether counsel for defendants each had a right to address the jury. / After argument the Court decided in; the affirmative.

The caso was then adjourned until this morning at ten o'clock, when Mr Gillies will commence to address the jury on behalf of the prosecutiou. The Court adjourned at four o'clock.