THE RECENT CASE OF REGINA V. SCHWARTZ.

Globe, Volume XX, Issue 1613, 22 April 1879, Page 2

THE RECENT CASE OF REGINA V. SCHWARTZ.

The following are the statements of Messrs F. J. Garrick and M. Hart as to the drawing of Lire indictment in the recent case of Regina v Schwartz. Mr Garrick’s statement is as follows:

UK SCHWARTZ PROSECUTION. On Sunday, 6th April instant, Mr Mcares, of the Union Insurance Company, called upon mo at my reside ee, and producing a note from Superintendent Broliam. of the Canterbury police, requesting him (Mr Meares) to get me to assist Mr Duncan to prosecute herein, to which I at first objected, as the sitting of the Court would commence the following day, and there was no time for preparation. He pressed mo, hqwever, and I assented, and promised to see' Mr Duncan the following morning. I accordingly attended at the Supreme Court about half-past eleven, and saw Mr Duncan, stating the request of the company, to which he at once assented. 1 asked him whether ho would object te my addressing the jury in reply.

He said certainly not, but a few moments afterwards intimated that he would like me to conduct the prosecution alone. This 1 demurred to, as iuvolviug more than I could possibly manage on so short a notice. He said that I could easily do it and pressed mo to do so. I enquired whether he had drawn the indictment. He replied No. I said must it he presented to the Grand Jury to-day. He replied Yes. I then said, Well, I cannot possibly draw it to day, as I have other engagements ; and if I take the case single-handed will you get Mr Hart to draw the indictment, and allow him to help me in preparing for the trial. He replied, Certainly I will; send him into the Library to attend to it at once. 1 shortly after went into the Library, where I found Mr Hart writing. I asked him if he was drawing the indictment He replied, Yes, but there was a book in an unopened case containing an authority ho would like to get. I assisted the Judge’s secretary to open the case referred to, found the book required, and gave it to Mr Hart. I then asked him whether I could afford him any assistance Ho replied, No, that ho had no difficulty in framing the indictment, that I need not give myself any trouble about it as ho would take good care that he (Schwartz) should not escape so far as the indictment was concerned. As Mr Hart’s manner implied that he wished to bo alone, I left the Library. About two o’clock he called at my office with a paper in his hand, saying, I have drawn the in diotment, bat I have no clerk I can get to copy it; will you let one of your clerks do so. I replied, Yes, and introduced him to one, with whom I left him. About three o’clock the clerk referred to brought the engrossment to me, and as Mr Hart had not returned, I at once took it to the Supreme Court, handing it to Mr Duncan, who said that it would go to the Grand Jury that afternoon. While I had gone to the Court with the engrossment Mr Hart returned to mj office for it. After the indictment had been found by the Grand Jury, I gave my attention to the con sideration of the case for the prosecution, before which time I had not read a line of the indictment, or even seen it, except as before stated, or had any opportunity whatever of considering the same. I am unable to say what impression my conversation with Mr Duncan as to the prosecution may have left upon his mind; but, mine was that the indictment would be prepared by Mr Hart, and presented to the Grand Jury by Mr Duncan in the ordinary course, my attention being directed to getting witnesses subpoenaed and preparing for the trial. And, if Mr Hart had not called upon me requesting that I would get one of my clerks to engross it, it would, so far as I believed, or any action of mine was concerned, Lave been engrossed in Mr Duncan’s office, in the usual course, and presented by him to the Grand Jury. Mr Hart’s statement is as follows: REGINA y SCHWARTZ.

I, Michael Hurt, of the city of Christchurch, in the district aforesaid, law student, do sincerely declare as follows : 1. That 1 am clerk to Thomas Smith Duncan, of the said city, Crown Prosecutor for the Canterbury district, and have been so for many years. 2. That so being such clerk as aforesaid, I. have had considerable experience in the preparation of indictments and the getting up of criminal cases, which Francis James Garrick, a barrister and solicitor of the Supremo Court of New Zealand, practising at Christchurch aforesaid, I believe well knows. 3. That the said Francis James Garrick was, as I am infonned and believe, retained by the representatives of the Insurance Companies in Christchurch, to prosecute one Isidor Schwartz for setting fire to certain goods in his premises in High street on the 17th day of March last, with the intention of defrauding certain insurance companies, and accepted such retainer. 4. That the said Francis James Garrick duly attended the Kcsident Magistrate’s Court, Christchurch, and there pro-ecuted on behalf of the said imurance companies, and that the said Isidor Schwartz was committed for trial at the April criminal sittings of the Supreme Court for the offence aforesaid.

5. That on the opening cf the said criminal sittings on Monday, the 16th day of Ap.-il instant, I bad a conversation with the said Thomas Bmith Duncan relative to the case of the said Isidor B'chwartz, and he then informed me that he did not intend to prosecute on behalf of the Crown, inasmuch as he had nothing to do with procuring the committal, knew nothing of the evidence, nor bad any copy of the depositions been supplied to him in the usual manner ; and that therefore, under the regulations for the conduct of criminal prosecutions, he was not compelled to prosecu'e at that session. 6, lhat shortly aft f r the conversation aforesaid I was requested by the said Francis James Garrick to assist him in the preparation of the indictment, and I therefore consented so to do provided the said Thomas Smith Duncan had no objection to my doing so.

7. That the said Francis James Garrick having informed me that the said Thomas Smith Duncan had so consented, I enquired of the latter if this was the fact, and found it was so.

8. That out of pure good nature, and without fee or reward, and wholly believing that my experience would be of material assistance to the mid Francis James Garrick in the preparation of the said indictment (I well knowing that such matters formed no part of his practice up to that time, and being acquainted with the great skill and experience required in the preparation of such documents), consented to help him, and met him in the library. 9. That the said Francis James Garrick made some suggestions as to the indictment being framed, but afterwards stated that he thought I could get along very well without his assistance, as he was very busy, and besides was not u-ed to the preparation of such documents (or words t* this effect), and that ho would go on down to his office, and that when I was done I was to come down there with the draft indictment to show him, and that he would wait there for me, but if he was not in when he came I was to go on to Mr Walton’s, where I should find him at Imnch.

10. That at the time of such conversation, and in the library, I spoke to the said Francis James Garrick as to proving the property of the shop occupied by the prisoner Isidor Schwartz when the case came on to be heard, and I told him that the shop belonged to my late father’s estate, and that Messrs Jameson and Sawtell wore the tru toes, and that I could easily obtain the probate of the will as evidence of the ownership, he then said he thought the original will would have to bo produced and I replied that it was easily procurable (being filed in the Court), and that the attesting witnesses, Dr. Poster and his clerk Mr Swan, were both available. 11. That I then told the said Francis James Garrick that in order to enable me to prepare the indictment I required an authority which bud just arrived from England, and was then lying in the room in a case unpacked, and he then, with the assistance of another gentleman present, unpacked the box and obtained the authority for me. 12. That the Judge’s secretary was in the Library during most of the conversations and matters before detailed, and might have heard, and I verily believe heard, such conversation or at least portions thereof.

13. That I never for one instant conceived that I was doing anything else but assisting Mr Garrick, and I at tho time in a jocular manner informed Mr Wm. Vigors, clerk in the Supreme Court office, that as the Crown declined to prosecute I had to draw the indictment for Mr Garrick. 14. That the said Francis James Garrick quoted some cases to me to show that tho prisoner could not be indicted for setting fire to tho building, as even when a building or portion was scorched it was held not enough, and that on bis asking mo to have tho indictment engrossed (which I thought he did as he was not accustomed to tho form and mode of engrossing such documents.) I told him that our clerks were fully engaged, being session time, and, further, I took it (and thought at tho time) that it was his duty to engross it, as he had the prosecution.

15. That thp said Francis James Garrick then left the library, and for fear that Grand Jury might be discharged before the indictment could be presented to them it became necessary that I should r. so great dispatch in its preparation. And, having perused the original depositions, which I had for the first time seen that morning, I, in about an hour and a half, drew the indictment to the best of my skill and ability, taking into consideration the short time at my disposal, and the limited information afforded mo, and respecting which I had to make enquiries from Detective Beniamin. It!. That I then took the draft indictment down to Mr Garrick’s office, and, on enquiring there, not finding him in, proceeded in a cab to Mr Walton’s office, where I found him wth Mr John Matson, and I then showed him the draft indictment, which ho took in his hand and looked at in the cab on our return to his office, he then informed me tint he thought an indictment would lie at common or that there should have been one at common law.

17. Timt on arriving there, I pointed out to him that the names of the insurance companies should be stated in full, when we together examined his brief in the Magistrate’s Court to obtain them, and Mr Garrick despatched one of his clerks to the various insurances offices to verify the information. 18. That he then, personally, gave the said draft indictment to Mr Beager, one of his clerks, to engross, and I having directed him how it should bo done, left his office.

19. That with reference to the hire of the cab, and so f rth Mr Garrick informed me he would repay me ail expenses after the trial. 20. That in the afternoon of the same day, being anxious io see that the engros ment of the indictment should be properly compared with the draft, I again went to the office of Mr Qarri k, t n seeing Mr Seager, his clerk, who so engrossed it as aforesaid, ho told me that Mr Garrick had taken it up to the Supreme Court, and had. he supposed, done what was needful. 21. That I had no communication from Mr Garrick until the 10th instant, when I had a message that he required to see me, but being then unable to go, I afterward thought that it referred to the issue of some subpamas in the case, and the procuring of the necessary forms, which are only to bo obtained in the Crown Solicitor’s office, which subpoenas were issued 1 believe on tbe same day ny Mr Garrick. 22. That although informed by Mr Garrick that be bad obtained Mr Duncan’s permission for me to assist him at the trial, I did not attend then, as I considered that I was treated somewhat nncourteonsly by not bear in" from Mr Garrick (save on the Ifith as aforesaid) and not seeing him in the matter, and I did not wish to appear obtrus ve, thinking that I had done all he required from me, especia ly as be could have got me any minute on tbe day of the trial if I was sent for. 23. That had Mr Garrick at the trial produced the evidence of my late father’s will as referred to in paragraph 10 of this declaration, I am informed and believed that it is agreed on all hands, and was indicated both by bis Honor and Mr Joynt, that the indictment as to the second count would Lave been good, and the case gone to the jury. 24 That it is contrary to the practice of the Crown Prosecutor’s office for an indictment to be engrossed or presented to the Grand Jury, the draft of which if prepared in his office has not been approved of by him. 25. '1 hat the said Thomas Smith Duncan never saw the draft of the said indictment to my knowledge. Michael Hart. Note. —I wish here to state emphatically that I am not actuated by the slightest illfeeling whatever towards Mr Garrick personally, in making this statement, and I am sorry that the necessity for my doing so should have arisen. In self-defence, however, and to put myself right with the public, and to assist in clearing up this matter, I so far as my knowledge and recoillection extends, consider it my bounden duty to do so. I further say that I had drawn and signed this statement with a view to its being declared before a Jus* ice of the Peace without seeing Mr Garrick’s statement. Without entering further into tbe matter, and in a spirit of fair play, I myself publish his statement (a copy of which has been forwarded to mo), with my own,