MACKENZIE THE SHEEP STEALER Lyttelton trial in 1855 suggested as miscarriage of justice

Press, Volume CX, Issue 32458, 19 November 1970, Page 10

MACKENZIE THE SHEEP STEALER Lyttelton trial in 1855 suggested as miscarriage of justice

James McNeish, the author of the novel “Mackenzie,” based on the life of the Scots shepherd who gave his name to the Mackenzie Country, believes that his trial at Lyttelton in 1855 may have been the “most overlooked miscarriage of justice” in New Zealand. He gave some of his reasons in the following address to booksellers in Auckland this week, at a function arranged by Hodder and Stoughton to mark the publication of the novel: This must be the first time that a house of this nature has drawn a gathering of such respectability in order to honour a barbarian and a sheep thief. Now, I have gone to the other extreme and made Mackenzie into a hero, and I shall almost certainly be criticised for doing this I hope so. Because I have done it quite deliberately. In the South Island, there is a school of thought (probably it is represented here tonight) which tends to write him off as a delinquent, as a common thief. In Canterbury my wife says I have to tell about Sir John Acland, and I’m going to —earlier in the year we decided to call on Sir John Acland who, as you know, is chairman of the Wool Board. We thought, and the publishers thought, that in one capacity or another Sir John might be interested in the book. I certainly in my innocence thought it might be a good idea. And I remember that Sir John Acland was very relaxed and very hospitable. And then we brought up the name Mackenzie. Sir John was holding a piece of cake at the time. He did not drop it, he stiffened. He said: “No, we don’t think about him like that. We don’t talk about Mackenzie down here.” And he changed the subject. Now, this was a surprise. Then travelling about I found that this was by no means an isolated reaction. They are sheep farmers these people, naturally, and theirs is a perfectly fair and rea-

j sonable point of view—but I have never admitted this. I had a document about 15 years ago which led me to think that Mackenzie might have been maligned. I suppose what it really did was to give me a clue, an insight into an altogether bigger character. Because I had always been puzzled: I had read what had been written about the man and while this told me everything about What he had done, I was still puzzled; because it told me absolutely nothing about what he was like. I took this document overseas. And about six or seven years ago—by now, I had collected a file about the man, quite a lot of stuff—somewhere between Sicily and London, I lost the whole file. I was forced to go back and start again. In the course of reconstructing what I had lost, I discovered in the British Museum, as often happens, a lot of material I had no idea existed. The chief thing I found was that Mackenzie’s trial in 1855—you remember: there was the audacious raid in March, 1855, when he is said to have lifted singlehanded 1000 sheep; he was caught, escaped, then arrested, brought to trial at Lyttelton and sentenced to five years have been a farce. What you had, in fact, was a sort of Mafia situation. All the sheep-owning interests of

Canterbury, all the gentry, were ranged on one side of the court in a bloc. And on the other was a primitive, illiterate Scots shepherd, Gaelic speaking—Mackenzie had almost no English—with no chance whatever of defending himself. He had no interpreter, he had no lawyer (no counsel at all, not even a dock brief), and furthermore the judge, instead of giving a clean ruling that it was the job of the prosecution to prove Mackenzie guilty, he went out of his way to direct the jury that the onus was equally (if not more so) on Mackenzie to prove himself innocent. He had not a hope. I said the trial was a farce. Evidence was suppressed. The judge himself was prejudiced. This was Judge Stephen. He had been three times in trouble—once in Australia where he had been debarred for contempt of court; once in Dunedin where he called the magistrates “a lot of old women," and was challenged to a duel; and once in Wellington, where he was accused of partiality and corruption. Compared with Judge Stephen, Mackenzie’s record seems almost praiseworthy. Mind you, there had to be a judge, and in 1855 there was not much choice. Sidney Stephen was the only judge in the country. But the prejudice went further than this. If you look at those who were respon-

sible for hounding and later for persecuting Mackenzie, what do you find? They were high Tory, Anglican, young—the Commissioner of Police, for example, was only 25 ambitious, opportunist, they mostly played cricket together, they were all sheepfarmers, and they loathed the Scots. What you had, in effect, was beyond a farce: it was a classic Mafia situation. At this point, I decided that if I was going to write anything, whatever it was, whatever form it took, it would come down quite heavily on the side of Mackenzie. So if he has come out a sort of hero, as I say, it is deliberate. Since I finished the book, I have talked about the case with several people. One of them is an English historian in Christchurch, Stanley Newman. Not long ago, Newman took a group of students into the field; they collected evidence and did research, and then they retried the Mackenzie case. Their verdict was Not Proven. I remember Newman saying: “There is not a court in the land today who on the evidence produced in 1855 would condemn this man.” I do not know if this case constitutes one of the graver miscarriages of justice in New Zealand legal history—l suspect that it does, but I do not know, since to my knowledge no legal historian has investigated it.

Perhaps what we have got is the most overlooked miscarriage' of justice. Does it matter? I do not think we can judge, because we are still in the process of making up myths about the man. I suppose it does matter in one sense. Because from being merely a local reputation Mackenzie has in some curious way become a national figure, a true folk figure. There are not many about. The fact that there are at least 10 descriptions of him which all contradict one another is one proof of this. At the same time, he seems in a curious way to have become the archetypal New Zealander. This is Stanley Newman’s phrase, not mine. Newman says, something like this: “If you look at Mackenzie you are looking at every New Zealander, because in him every Kiwi can recognise a bit of himself. He can say ‘This was a man like myself, only he was a harder man. This was a man like myself, only he was a better shepherd. This was a man like myself . . .’ ” And so on. AH’ I can say—and this is not a description—is that if Mackenzie were alive today I imagine he would still command public sympathy (like Wilder) if only because he would be the sort of man who would always live upon a hill, so that he could see the income-tax inspector coming.