SUPREME COURT.

Globe, Volume XXII, Issue 1839, 14 January 1880, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Tuesday, Jantjaby 13. the boit cases. The hearing of these caees was concluded yesterday after we went to press. The folowing were the proceedings in detail: — Mr Joynt said that he should be prepared to ask his Honor to direct the jury that unless it was shown that there was a premeditation on the part of the persons now charged then it would not amount to a riot. His Honor said that he should put it to the jury that unless at the time of the disturbance there was a distinct and common intention to commit an assault it would not be a riot, but there wbb ample evidence that there was an intention to obstruct the procession.

Mr Joynt quoted from Rusaell on Crime to uphold his contention. Mr Joynt then raised the point that an Orange Lodge was an illegal association, and quoted from 57 George 111., sec. 19, ch. 35,'and 37 George 111., oh. 123, to show that the taking of an oath in connection with an unlawful assembly, auoh aa he contended the Orange Lodge was, was unlawful, and that therefore these people could not be said, as the indictment alleged, to be in the peace of Goes and the Queen. His Honor said that there was no pretence for saying that the Orange Institution wbb an unlawful assemblage under the statute of George 111. He should be prepared to say that if there was a riot, and people went in there and laid about them, they would be guilty of assault, unless they were going to Aid the peace. Unless also they were going to do all they could to suppress riot, and went in unauthorised in any way, they would be guilty of riot. There was nothing in the point raised by Mr Joynt as to the status of tha Orange Sooiety, because the Protestanb Alliance had been stated in evidence to be a benefit society. Mr Joynt pointed out that the Protestant Alliance was not registered in New Zealand. His Honor said that it had been sworn that the society was registered in New South Wales. If there was anything in Mr Joynt's first point, on consideration he would reserve it if necessary. Counsel having addressed the jury, His Honor summed up. He said—lt is deeply to be regretted that such cases should arise in a colony like this, which, without undue boasting, we may say enjoys a large share of civil liberty and freedom of opinion. It is a melancholy reminiscence of times when professing Christians acted quite contrary to their professions. This question has long been settled, that every man has a right to entertain his own views on religion and mode of worship, and so long as religious or party observances were conducted in a manner not clearly immoral and did not tend to create breaches of the publio peace, thereby endangering the safety of the community, every man has a perfect right to enjoy to the full both his opinion and power of action within the law. As the law at present stands in the colony, it is quite oompetent for any body or olaBS of men to gather themselves together, or constitute themselves into a sooiety, for the purpose of making any demonstration they please, so long as it is consistent with publio peace and security ; and it is to be observed, with regard to this particular kind of demonstration, that the same right, enjoyed and used by the Orange people, is enjoyed and used by the Roman Catholic portion of the community. I do not sit here to preach lessons on publio morality, or reason upon matters of political economy ; neither am I here to censure the laws or to suggest improvement of the laws in respect to the general welfare of the people. But, the fact that I occupy this position does not debar me from expressing my fear, as a man somewhat advanoed in years and acoustomed to publio life, that nothing is more likely to prove mischievous to a society like ours than such manifestations as these of party feeling. Lot them, when the time comes, vindicate their rights with courage and firmness : let them do everything they please which the law allows them ; but I feel and say, as a man, that it is a very much better thing not to insist upon public demonstrations —which, however, you have a perfect right to make—if you have reason to believe they will seriously affect the comfort and happiness of or unduly excite your neighbors. I join in the expression of opinion made by the learned counsel for the defence, that the facts which have been elicited may lead to good results eventually, and one is glad to feel that the co-religionists of these men by no means express sympathy with them in the action they have taken. His Honor then pointed out that the prisoners were not posseased of the advantages of a good education, and were less likely to have control over that impulsiveness of character peculiar to their countrymen, and which led them occasionally to get into situations much to be deplored, whilst the same characteristics made them, under good government, the noblest and bravest of soldiers ; and these matters ought not entirely to be ignored. He concluded these general observations by Baying that any persons or class of persons who came into a country for the purpose of exoiing class against class, association against association, and religion againßt religion, were the worst enemieß a community could have. His Honor then proceeded to direct the jury on the law points involved, and comment on the evidence, pointing out that whereas there appeared to be a want of sufficient evidence to implicate Edward Murphy in the riot, the testimony was more or less strong against all the others, some of whom were shown to have been especially aotive in the affair. The jury then retired, and after an absence of half an hour, returned into Court with a verdict of "Guilty" againßt the following prisoners—Michael M'Avey, Thomas Hanley, Patrick Ouddihy, Thomas Magner, Patrick Shanaghan, Thomas Keiley, Michael Rock, Stephen Barrett, John Flaherty, Thomas Wood, and Michael Leary. Edward Murphy was found " Not Guilty," and discharged. His Honor—On behalf of the Crown, Mr Duncan, have you any suggestion to make with regard to the punishment of the prisoners. Mr Duncan —I think an exemplary punishment Bhould be given to the whole of the men, as I presume from the verdict of the jury that they believe there was premeditation. His Honor —Why any more premeditation than was necessary to comply with the definition in point of law ? [To the foreman of the jury.] Do you believe that the act was premeditated ? The Foreman—Yes, your Honor, we have all come to that conclusion.

His Honor-"-In the same sense I have pointed out—that the attack had been arranged beforehand. The Foreman—Yes, your Honor,

Mr Joynt—l submit that there is no evi dence of that.

His Honor —It is quite competent for the jury, in face of the evidence, to come to that conclusion. The fact of thoir meeting at a given point, watching their time, and wh p n tha procession arrived at a certain point their making a simultaneous rush. It is quite competent for them to come to the conclusion that the assault was not the result of a momentary thought, especially as it was Boxing Day, and that it had probably been publicly announced that the procession, with colors and emblems, would walk. In reply to the Court, Inspector Hickson stated that the prisoners were mostly from the country. Nothing was known of them by the police. At this stage, the foreman of the jury (having obtained permission to speak) said the jury wished to express their opinion that a number of men working on a contract should not be paid at a public-house, as in the case of Barrett. His Honor—l entirely agree with you. Mr Joynt—There is no evidence of that, your Honor. His Honor—There was evidence that tho prisoners were employed by a contractor, and Mr Barrett was a contractor for labor. I am not here to review the action of the Licensing

Bench, but I cannot help thinking that when evidence like this comes before them they should hesitate very muoh indeed as to howfar they would be justified in giving Mr Barrett, or any man under the eame circuinB'wnceg, a publican's license. Mr J oynt —As a matter of fact a very small proportion of the people who work for him live with him, and are not paid at the hotel, but at the workshop. Mr Barrett has been very oareful about that. His Honor—lt is, however, as well perhapß that the jury should have made the representation, as an expression of opinion from them that this sort of thing is undesirable may reach the ears of the proper authorities, and thus be productive of good. The prisoners having been called upon in the usual form— His Honor passed sentence as follows : Prisoners at the bar, had you, after you had time to consider what you have been doing, and how you imperilled the peace of this community—had you pleaded guilty after having time for reflection, I Bhould have thought it my duty to consider that plea of guilty as an indication of submission to the law of the land ; that it would have a good effect by way of public example, and that it would have justified me in passing upon you a sentence much less severe than that which your guilt really deserves. Ido not know whether you have, any of you, yet reflected upon the character of the offence you have committed, apart from any prejudice you may have of a national or religious character. But let me tell you that according to the law of thiß land, and of every other well governed oountry, you have brought yourselves into this kind of predicament, that if it had not pleased Providence to prevent any of the blows which were struck ending in the death of any one of the persons assailed, you would have been in point of law guilty of murder. If the death of any man had resulted from the promiscuous use of those weapons, every man of vou would, in the eye of the law, have beon guilty of murder. This is a thing for you to reflect upon, as well as those persons outside who may sympathise with you, and who may be of your way of thinking in religion and politics, and thus share your ideas or temptations to disturb the peace of the community. The evidence given in this case, although no death occurred, would have been amply sufficient to justify a prosecution for malicious wounding with intent to do grievous bodily harm, and then again you and each of you would have been liable to a long period of penal servitude. Had there been reasons for believing that a light sentence might be as likely to prevent a recurrence of this kind of thing as a substantial one, I should have been only too happj to accept them. But I have thrown upon the representatives of the Crown the responsibility of intimating to me their opinions as to the for a substantial punishment. God forbid that I should assist the Government in any way to pass anything like a vindictive punishment upon wrongdoers, but I must take the facts as I find them before me, disclosing a riot of considerable seriousness and an assault of a most dangerous character. I must therefore make your sentence substantial, »b you have not submitted yourselves to the law by pleading guilty, and the arm of the law must be stretched forth to put a Btop to this kind of thing. I cannot help it if one portion of the public, who may have prejudices in favour of one class of persons as against another, blame me for too great a lenienoy in this case. I shall impose a substantial sentence, but one which, under the circumstances, Ido not think by any means severe. I think it right to make a distinction among the prisoners, because it is perfectly that in all matters men follow leaders. I think it is exceedingly probable we have not here the most guilty persons; there are, perhaps, people behind who are more guilty than the prisoners at the bar. But, there were two or three persons who rendered themselves very prominent in the affair. There were about thirty men concerned in the attack, and Stephen Barrett was marked out as being very active. Ouddihy, too, seemed to be one of the leaders of the party, and he it was who first took the flag and gave directions in the matter. Hanley and McAvey also appeared to have been aotive participators in the disturbance, and Barrett was shown to have used expressions indicating that he was actually fool enough to contemplate that that body of men were going to take possession of this town. It is scarcely possible to understand in a population like ours,_ how men could be such positive idiots, even if ten times the number of this body of men, to suppose that they could for any period of time set at defiance all constituted authority. A 1; the same time men who go about like that are very dangerouß to a community. As I said before, I Bhall make a distinction in the cases of some of the prisoners. The Bentenoo of the Court is that McAvey, Hanley, Cuddihy, and Barrett, he sentenced to eighteen months and the remainder of the prisoners to twelve months' imprisonment with hard labor. The prisoners were then removed. The waiting jurors having been dismissed with thankß for their services,

The Court adjourned till Thursday at ten o'clock.