THE BURNHAM STABBING CASE.

Press, Volume LVII, Issue 10777, 3 October 1900, Page 3

THE BURNHAM STABBING CASE.

CUNNINGHAM BEFORE THE COURT.

MR DONNELLY CONDUCTS THE

DEFENCE.

WITHDRAWAL OF MR JOYNT.

tjjg At the Magistrate's Court yesterday morning before Henry Cunningham was tne charged •with having stabbed Thomas _,„ 1 Archey, a legal argument took place before ]~ i Mr Beetham, between Mr Joynt and Mr do . ' Donnelly, as to who was entitled to defend Mr Joynt, who spoke first, said tier© was ile, unfortunately a conflict aa to the defeaoe. »ad On the evening of September 10th he reice ceived the following telegram from be- the . Mnw«** f oi Education, Welte- Mngton: — "Minister for Education He wishes you to act as counsel on behalf of the boy Cunningham. The Minister has directed I( j* the "manager as guardian, to instruct you ' accordingly." Under the 26tii and 27th section of the Industrial Schools Act, the manager of the school was the legal guardian r( f of the boy, and the guardianship of the '■' parents ceased when the boy became an iniat mat* until he attained the age of twenty. • one years. On the following morning he- received a telegram from the acting-manager at Burnham, Mr Bathgate: "Directed by v the Minister of Education to instruct you to ' appear for the boy on Friday next. Mr Stringer appears to prosecute, and has all the ?' papers." Then followed some correspond--3 ence between Mr Donnelly and himself. Under those circumstances he wired to the Department to know whether or not he should continue to represent Cunningham, and rejf ceived a further telegram instructing him L that under the circumstances the boy was n _ under the guardianship of the Department, " and the Minister considered it hia duty to provide legal assistance for him, and he wished Mr Joynt to proceed with the de- , fence. He did not think it mattered very much to the boy who defended him. Either 7~ he or Mr Donnelly were quite capable of doing so, and it was through no wish of his v " that he appeared at all. r° Mr Donnelly, in reply, said that personal ally he was quite indifferent as to whether . he defended the boy or not; but there was y a principle involved in the matter, and that was the only point he considered. On the )n occasion that Cunningham first came before P* the Police Court, over a month ago, he ap- ' peered for him with his consent, and agreed to the remand. There were a couple of res' mands afterwards. He had been instructed by the lad all along, and had repeated con- » versations with him about the case, and had k> his written retainer to defend him. The ~ question then appeared to be, whether or not '" the views of the accused were to prevail as a to who was to defend him, or whether the c Minister of Education, who had no status ■* whatever under the Act, or the boy's own l t guardian, who was the virtual prosecutor in ; " the case, had the right to instruct counsel, 5 " and override the wishes of the accused as to a who should appear for him. It might be c said that a person under the age of twenty- '> one was deprived of certain civil rights, but * under the Criminal Code, the majority of d any person charged with an offence was t fixed at 14 years. Mr Donnelly quoted a & case from Cox's Criminal Cases, wherein, on c a trial for murder, the Court refused to alt low counsel to appear for the prisoner witha out his express consent. But there was an- ■ other case which bore more closely upon the c present one (R.V. Ayes, 24, L.J. 64). There i a lad of 19 was charged wjth committing an j offence, and his father arranged with a r solicitor to defend him, without the authot rity of the boy. The solicitor appeared and t pleaded guilty, and the conviction was after- - wards quashed on the express ground that i this person, who was under 21, had not given [ the father and the counsel authority to ap- ' r pear. In cases of this kind there must be ' t a complete absence of anything which would ] j savour of unfairness to the accused. If the j ( Court ruled that he was not to appear for j i Cunningham, the boy would then have no j t opportunity of appearing by his counsel or , . solicitor, and the Supreme Court would i , quash the whole proceedings. He, there- \ \ fore, submitted that his learned friend had no -~ . locus standi there. : Mr Beetham: "There seems to be an anomaly here." To Cunningham: "Who do : you want to represent you, Cunningham?" Cunningham: "Mr Donnelly." "That is so?" ' "Yes." , Mr Beetham: "There is the whole case, r Mr Joynt." . !j Mr Joynt: "Yes." j Mr Beetham: "Well, then, you had better r withdraw, Mr Joynt." * Mr Joynt then withdrew, and the defence % was conducted by Mr Donnelly. E THE CASE FOR THE PROSECUTION, r Henry Cunningham was then charged E with having on August 30th stabbed one f Thomas Arohey, with intent to do grievous F bodily harm. . £ Mr Stringer appeared for the Crown, and t Mr Donnelly appeared for Cunningham. Mr Stringer, in opening, said that Cun- „ ningham was committed to the school in £ 1888, and from 1889 to 1897 he was boarded fc out. From 1897 to 1900 he had been v boanJed out at dUTerent places, and in March y be absconded, and was afterwards arrested c by the police on board a small echooner b about to leave for Surprise Island. On his P return to the school he was searched, and tl found to possess some obscene literature. He was taken to a room to be punished, and when Mr Archey entered the boy rushed at him, and struck him with a knife, and endeavoured to repeat the assault, but was restrained. The master had no option but t' to take the boy away from the ship, and the boy's habits were such that it wou!d be far I* better for some one to have charge of i> him. It would have been most unfortunate v ' for him if he had been allowed to drift n where he liked.- b Thomas Archey, manager of the Burnham Industrial School, deposed that Cunningham was an inmate of the school, and had been committed in 1888. He was now 15£ years of age. In March . 1900, witness procured him employment with a fanner at Ellesinere. In April he absconded. He was arrested by the police at the Bluff on August D 27th. He returned to the school pn 29th August, and was handed over to witness, who considered it necessary to keep the boy in safe custody, and gave instructions that he should be visited hourly during the night. t On the following morning he gave instructions to take him into the recreation room, a* Told Mr Carlyle and three or four boys to take him into the room V to investigate the case, hear his k* explanation, and , , if necessary, to fc punish him. Had found some indecent writ- cr ing or drawings on him, and intended to gr make some inquiries with regard to that, an Cunningham knew why he was sent to the he room. Witness went into the room a few inj minutes after Mr Carlyle. Directly witness sii entered the room, the boy, who was standing alongside the window, struck witness a in blow in the neck. Witness defended him- ac self, and Cunningham struck a second time, se' Witness noticed that he had a knife in his El hand open, and witness cal/ed the gardener's C( attention to it, and he took it away. Cun- fa ningham made another rush and was seized j B by the other attendants, and witness then t> directed him to be punished, which was done by Carjyte in the presence of witaese. The j punishment consisted of strapping. Witness subsequently felt a stinging pain in the rei neck, and discovered he was cut in the c0) throat. Witness then consulted Dr. Svmes, f* and had been under bis treatment "since. . Cunningham was locked up in a cell by Slt witness's instructions. Did not know it was one of the regulations that he most not be locked up. It was one of the regulations that an inmate must not be in solitary con- ; fizKsnent at night a-t all, and for not more Ini than three hoars in the daytime. Considered that so long as an attendant was sleeping within easy communication it was ' not solitary confinement. Instructed the atteodaot to visit Cunningham every hour ■ because he did not like the idea of a boy na being alone in a cell. It was a practice 1 wben witness first went to the echoolto put Soi in the cell abscooders whom he believed ( wouit-escape. Had ceased that practice mc some BMf&bs ago. He had reverted to the v aJtMTntoaed practice m the case of Cnnainf - 3»m, because witness had reason to behere be would escape on the first opportunity. Did Dot consider putting Cunningham in tbe cell mm vAitesf owfiaeuat, ,

Witness had! nob told Cunningham he intended to punish him. Bid not say he had given witness trouble by going away, and: now he had got Mm bade would let him pay the cheque. Cunningham was put on his stomach across the table, and strapped across tfce bare buttocks. He was heJd across the table, one person at each leg, and one at each arm. The bigger boys were holding him down. Three boys were in the room. Cunningham got twenty-two strokes with the strap. Blows falling on his clothes were not counted extra. There was no regulation aa to the number of strokes to be given. Other cases had been strapped. The punishment was intended to represent the enormity of the offence in absconding and bringing into the school the dirty, obscene drawings, and also his disgraceful conduct in the room. Cunningham had been similarly punished previously. Cunningham must have known when he went int# the room this time what was going to happen. Witness gave certain information to a "Press" reporter the same evening. Did not tell the reporter that the punishment given Cunningham after the offence was over was what witness intended to give him before he went into the room. Witness defended himself from Cunningham by striking him in the mouth. There were then probably five or six people present. Had never struck him like that before. Would not say the cut on the mouth was caused by th*t blow. It might have been done before. Struck at him the second time to parry his blow. It was immaterial to witness where he struck Cunningham the second time, so long as he parried the blow, as he bad received a heavy blow previously. Had been a schoolmaster, and knew the Act limited him to strike a boy in accordance with the usually accepted form of punishment at schools. Witness had not abandoned the system of punishment across the stripped buttocks. Looked upon many of the cases of absconding as a schoolmaster looks upon truancy. Had had no opportunity of investigating the possession of the indecent pictures. Beat him for having the stuff in his possession. Did not beat him for absconding. To Mr Stringer—No more violence was used in tliis case than in. other punishment of a similar nature. After the evidence was read: over to Mr Archey, the witness said he did not say that when the boy went into the room he knew what punishment he was to receive. Accused must have known, however, from previous experience that the punishment would be strapping over the table. Hugh Mason Carlyle, gardener at Burnham, deposed that the boy was standing close to the door, and struck at Mr Archey in silence. Witness punished the boy under Mr Archey's instructions in the way described. He spoke to the boy in the cell afterwards, and asked him if he had been put up to the thing by seamen. The boy replied that he intended to do for Mr Archey whenever opportunity offered, but at the same time he said he was sorry that he had used the knife. Cross-examined by Mr Donnelly—The other boya were there for the purpose of holding down the accused. Witness had seen other boys do thia kind of thing. He had never seen the accused held down before, nor did he know that Cunningham had seen boys so held down. Dr. Symes deposed to the condition of Mr Archey when attended by him, and said that the patient was between life and ', death for a week. The knife (produced) ' would produce such a wound. To Mr Donnelly—The slow healing of the wound wag due to the presence of foreign j matter in the wound. The great danger was ' owing to internal bleeding. : Mr Carlyle (recalled) identified the knife < as the one he had taken from the boy. 1 Dr. Symes (recalled) stated that he ex- I amined the boy afterwards. From the i colonial point of view all corporal punish- ] ment was dreadful. j This closed the case for the Crown, and i Cunningham was duly cautioned. , Mr Donnelly said that the accused reserved his defence, and Mr Beetham duly committed him for trial at the next criminal session. Mr Donnelly thereupon applied for bail, but his Worship said he did not care to •" fix bail until he knew what was to be done 1 for the boy. After a short consultation with J the boy, Mr Donnelly said that he would • withdraw his application for bail. His Worship said that this was the best plan in the meantime ,and he would see that the boy were kept apart from the other prisoners. j