THE GOVERNOR AND THE JUDGE. THE CASE OF WI WHAREPA.

Evening Post, Volume XXII, Issue 64, 14 September 1881, Page 2

THE GOVERNOR AND THE JUDGE. THE CASE OF WI WHAREPA.

Mr. Justice Johnston has transmit tod t* .* tho Minister of Justico a somewhat loiigthy l memorandum oh the minute of his Excellency tho Governor relative to the commutation of tho death-sentonco passed by tho, Judgo upon Wi Wharopa, the Chatham Island murderer. Sir Arthur Gordon has made a further memorandum upon this memorandum, and the two were laid before Parliament last night. Mr. Justice Johnston, thinking that the Governor's previous remarks had a tendency to refloot on the manner in which tho trial was conducted in tho Supremo Court, telt it a dnty to himself to explain certain facts which might htivo/' been misunderstood. Regarding tho pri«" , soncr's being undefended by counsel, on which hia Excellency laid so muoh stress, his Honor states: — "It was publicly intimated to the prisoner in Court, before tho commencement of the trial, that if he desired it counsel would bo assigned to him, and a proper foo providod for the purpose by tho Government; and I have boon informed from trustworthy sources that beforo tho trial he was urged to nccopt the services of counsel, bnt that ho positively refnsed to do so then, as well as in Court. The prisoner showed by his manner and language that he fully oomprohondod the proceodings, and it£ * was proved ho understands English very well, s Tho Rev. Mr. Stick, a olergyman of tho Church of England, who has been for many years acquainted with tho Maori people, acted, at tho request of tho Court and the prisoner, as interpreter on his behalf, and explained all the proceedings and gave him all the assistance in his power." The second "consideration" mentioned in his Exoellenoy's minute is stated to be "that the .- jury would have recommended the prisoner" to mercy on the ground of adultery oommittod by his wife had not tho Judge forbidden them to do so." On this point his Honor remarks that tho jury were unanimous in finding the prisoner guilty, but not in recommending him to mercy. It was on the foreman stating, in reply to his Honor's question, that the ground on which somo of the jurors wished to recommend the prisoner to morcy was his wife's adultery, that the Judge pointed ont to the jury that there was/ no evidence before the Court of the wife's adultery, and rominded them that they were sworn to " give their verdict according to the evidence," on whioh, after a long consultation with his fellow jurors, the foreman returned a verdict of guilty, without any recommendation. His Honor adds 1 : — " The prisoner, on being called on for his dofenca, made no statement with regard to his wife's adultery ; nor did ho do so in tho long irrelevant address which he made on being called on to say why judgment of death should, not be nas«ed upon > , him, and the only allusion made during the I trial to tho wife's misconduct was in the statement of tho prisoner to Mr. hhand in the lock-up." With respoot to the question of the admiß3ibility of evidence of that statement, Mr Justice Johnston explains that its admission was pressed for by the Crown Prosecutor, and only conceded by the Court after a long and careful consultation of authorities, and after being satisfied that it JF could not come " within the strictest dootrino of exclusion." Further, in asking the Crown Prosecutor whether ho "accepted the responsibility of the evidence being admitted," his Honor Bays he simply referred to tho risk of a conviction being quashed on the technical point, the other ovidenoe being sufficient; Bnt having finally resolved his own doubts on the subject, he did not deem it right to reserve the point for the Court of Appeal. His Honor " refrains from making comment on the opinions expressed by his Excellency on the case, or on the propriety of commuting the sentenoo." The Governor's memorandum, which is dated the Bth inst., is practically to the effect that the Judge's explanation is satisfactory, although he still holds that the absence of counsel was nevertheless "a serious disadvantage to the prisoner." His , , Excellency disclaims all intention of reflecting on the conduct of tho Judge, whom he admits to have acted striotly in accordance with " his obvious duty," but the Governor points out that the wording, bo*h of his Honor's notes and of the newspaper reports, certainly bore the construction placed- > upon it in his Excellency's minute, and that a minute made at the time by the Minister of Justice showed that he had adopted tho ¦ same interpretation — namely, that the " responsibility " acc3pted by the Crown Prosecutor was that of tendering the evidence not of its reception.