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SUPREME COURT-CRIMINAL SITTINGS., Issue 8032, 8 October 1889
SUPREME COURT-CRIMINAL SITTINGS.
Tuesday, October 8. '(Before His Honor Mr Justice Williams.) PERJURY. The hearing of the charge against Robert Wallace of committing perjury during the bearing at the City L’olios Court of a ■charge of alleged cattle stealing was continued. The Crown Prosecutor, with him Mr Solomon, for the prosecution ; Mr E. Cook for the defence. Further evidence was given for the prosecution by Alexander Campbell, C. M'Kenzie Gordon, Albert Walker, James Bailey, Archibald Rutherford, David Curio, Henry Charles Cameron, Thomas W. Taylor, Edwin F. Palmer, Charles S. Reid.
This closed the case for the prosecution. Evidence for the defence was given by Thomas Christie, Donald Cameron, and Henry Driver.
Mr Cook, iu opening the defence, said that there was this peculiarity about the case : it was really a private prosecution, instituted, no doubt, by private feeling and personal temper, and the informant was represented by private counsel. The charge, no doubt, depended on the question of partnership, ■and the evidence of the prosecutor on that point was, ho submitted, most inaccurate and wholly unreliable. There was really no evidence of partnership, and the word ‘‘mates” which had been used was one of wide meaning, and might convey a good deal short of partnership. In commenting upon the evidence the learned counsel contended that it was quite clear that if there was a partnership dating for six months from September 26, 1888, the cow which Campbell had been accused of stealing could not possibly have been a part of the so-called partnership property. He asked tho jury not to convict the accused of the very serious offence of perjury upon the very flimsy material that had been produced. Mr Solomon, in addressing the jury, said he could hardly help remarking it seemed to him that counsel for the defence was really trifling with the jury, or that ho must have overlooked what it was that the accused was charged with having sworn falsely. How could the fact be explained that the accused had told several of the witnesses that he was in partnership with Campbell ? It had been said that this was a private prosecution, and it was in tho sense that tho informant was the person aggrieved in the first instance. Then there could be no doubt that one wilful misstatement made by the accused in his evidence—viz., that it was not a common thing for Campbell and himself to have cattle in the saleyards, and for Wallace to draw the money—had been clearly disproved. He submitted that it must be apparent to the jurors that tho prisoner had made deliberate and wilful misstatements on oath, with the intent of robbing Campbell of hia liberty, and if one man was allowed to injure another in this way, then no one would bo safe for a moment.
His Honor, in summing up, said: Gentlemen, it is essential to the conviction of the accused that you are satisfied that he swore falsely not by inadvertence, but that he wilfully swore what was not true. That the statements complained of were material to the question before the magistrates is perfectly evident. Campbell was charged with stealing a cow. Campbell had taken the cow and disposed of it. If there was an arrangement between the parties like that which Campbell has spoken of to-day, Campbell in dealing with the cow as he did would have simply carried out the arrangement which he states existed between the parties —viz., that there was a common understanding for the buying and selling. Therefore Wallace’s statement before the magistrates, “ I deny having any partnership or joint transaction | with theaccused,” would havea very material , bearing on the issue which the magistrates ( had to consider. If it was the case that i there was no partnership or joint transaction between Wallace and Campbell (who was then accused), then the action of Campbell in respect to the cow could hardly be explained on any other supposition than that he had stolen it; so that the statements signed by Wallace and appearing in his depositions were distinctly material j to the issue then before the magistrates. If these statements were made —and they are recorded in the depositions ( in the usual way, and signed by Wallace ( himself—then they were material to the , issue before the magistrates, and it is for the Court and not for the jury to say ; whether they were material. You have to consider whether they were untrue statements, and if untrue whether they were wilfully untrue. If they were wilfully untrue statements, then, being made in the course of a judicial proceeding, and being material to the issue, the person who made them would be guilty of the offence of perjury. What the prosecution have therefore to prove to you is that these statements were not only untrue, but wore wilfully untrue ; and you have to decide whether they were untrue, and if untrue, whether they were wilfully untrue, looking at the evidence and all the circumstances of the case. After commenting on the evidence, His Honor said : That, gentlemen, is the evidence. So that the main point you have to consider is this: were any of those statements which it was proved were made before the magistrates in the course of this inquiry wilfully untrue. The first question is whether they were untrue at all—not merely by inadvertence, but was the untruth intentional ? If they were not untrue, or if, being untrue, a mere slip, then the accused is entitled to be acquitted. But if it is proved beyond reasonable doubt that these statements, or any of them, were intentionally untrue—that they were made with the intention of misleading—then it would be your duty to convict the accused. The jury, after being absent from 3 till 4,43 p.m., found the prisoner “ Guilty, ’ with a strong recommendation to mercy on account of the very unsatisfactory way in which the joint transactions were conducted. His Honor deferred sentence. LARCENY BY A DOMESTIC. Mary Smith (aged 22), who _ pleaded guilty yesterday to stealing jewellery belonging to her late employer, was brought up for sentence. ... Mr Torrance, gaol chaplain, intimated that he had been informed that the girl’s father had been drinking since he had gone to Melbourne. While he was in Dunedin be was for some time a member of the Salvation Army. . _ . Mr Phillips, probation officer, was also informed that the girl’s father used to drink when in Dunedin, and that the mother drank occasionally. Taking them all in all they had not been a good moral lot. His Honor; As she has been six weeks 5n gaol, and this ia her first offence, I should be sorry that she suffered any further punishment. Supposing that sho were ordered to come up for sentence when called on, could she be looked after in any way. Mr Phillips: There is no one here but a sister of hers, and it would not be for this girl’s advantage that she lived with her. His Honor: So I understand. What I propose to do is this; to release her on her entering into her own recognisances for L 25 to come up for sentence when called on. I think lam justified in doing that as nobody has suffered ; as the jewellery has been recovered ; as the pawnbrokers got back the money advanced on the articles ; as this ia her first offence, and as she has already been six weeks in gaol. You will bear in mind, prisoner, that if you conduct yourself improperly, and do not lead an honest life, you will certainly be arrested, brought up for sentence, and be punished ; but if you behave yourself you will not be interfered with. SENTENCE. Harry Thomson , who also pleaded guilty yesterday to an indictment charging him with robbery of jewellery from a dwelling, was brought up for sentence. The Probation Officer reported that prisoner was a deserving object for the benefits of the Probation Act. The Crown Prosecutor: The police are very strongly opposed to that report. This man, I am instructed, is a friend, close acquaintance, and associate of hraser, who was sentenced yesterday to four years; and the police report that he hasbeen an associate of rogues and vagabonds for the last twelve months, I have evidence to support that report, and, in the face of such antecedents, cannot understand how the probation officer came to certify that the prisoner is entitled to the benefits of the Act.
Mr Farnie, who appeared for the defence, said that only that morning ho had come prepared with a witness as to character, and that Mr Phillips had had an interview with this witness. Fraser had been in Melbourne till quite recently, so it was impossible that the prisoner could have been associating with him for the past two years. His Honor (to the probation officer): Did you make inquiries from the police as to this man’s antecedents before drawing up the report ? Mr Phillips: Yes, your Honor. They informed me that he had been an associate of thieves, but only for a short time, prior to the commission of this offence, while the characters I got from his employers extended over several years past. It is only lately that the prisoner seems to have gone astray. His Honor: It is about four months prior to his arrest that tho police apeak of, while Mr Phillips’s inquiries seem to go back some considerable time. Since tho police report that for four or five months prior to tho commission of this offence he has been doing nothing, and has been in the company of convicted thieves, I do not think I ought to give him tho benefit of the Act, The Act requires that good character shall bo shown. Tho accused may have been of _ good character some months ago, but if tho police report that a man has been in tho company of convicted thieves ior three or four months before bis arrest, doing nothing, and they also raise objection to him being brought under the Act on that ground, their recommendation should receive consideration. The sentence of the Court Mr Farnie: I would ask your Honor, before pronouncing judgment, to bear in mind that the prisoner has been three months in gaol. His Honor: No doubt. The sentence of the Court is that he bo imprisoned in the common gaol at Dunedin for six months and kept to hard labor, WIFE DESERTION. On Thomas Henry Richards being placed in tho dock for sentence. Sir K. Stout said that as his client had been in gaol since his arrest, it had been impossible for him to make any arrangements as to sureties. Hia Honor: As the offence is a simple misdemeanor, and ns he baa already been six weeks in gaol, and hia previous character has been good, nothing having been known against him before, there is no sufficient reason why I should not give him the benefit of the Probation Act. But it will be one of the conditions annexed to tho terms of his discharge that he sufficiently maintains his wife and family during tho term of his probation. He will therefore be released on probation for six months, on condition that within tho six months he pays L 5 towards the expenses of the prosecution, and maintains his wife and family during the term of probation. EMBEZZLEMENT OF POSTAL FUNDS. Thomas Easton Wavrjh surrendered to hia bail and pleaded not guilty to an indictment charging him with having in August, ISS7, while in the public service, stolen tho sums of L2O 17s 8d and LOO, the property of tho Queen. Other counts to the indictment charged him with embezzling the amounts stated. Sir Robert Stout defended the prisoner. The case was proceeding as wo went to press. WELLINGTON. The Grand Jury were occupied all day in considering the indictment for perjury preferred against Chief-detectivo Benjamin in connection with the Chemis_ case. _ The Grand Jury applied to the Chief Justice to have the names of Inspector Thomson and Detective Campbell endorsed on the back of tho indictment, so that they might be called, but Mr Jellicoe refused to assent to this, and His Honor requested the jury to consider whether it was necessary to call tho witnesses mentioned, and then he would decide the matter on his own responsibility. The Grand Jury ultimately found no bill.
SUPREME COURT-CRIMINAL SITTINGS., Issue 8032, 8 October 1889
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