THE HAWKE'S BAY HERALD. Napier, Saturday, Mar. 26, 1859.

Hawke's Bay Herald, Volume 2, Issue 79, 26 March 1859, Page 2

THE HAWKE'S BAY HERALD. Napier, Saturday, Mar. 26, 1859.

In our last we mentioned the fact that the three men (Charles Swyer, Charles Birch, and Thomas Hopwood) committed at Napier, early in January, for trial at the ensuing criminal sessions in Wellington on a charge of burglary, had returned to the province by the 'Wonga Wonga,' freemen. Their case, it appears, did not even come into Court — the indictment filed against them by the crown prosecutor having been ignored by the grand jury. Now, this-isa very serious matter. If the men be guilty, some gross negligence or mismanagement has interfered to defeat the ends of justice ; if innocent, the men themselves are greatly wronged ; in either case, witnesses have been dragged from their homes to no purpose, while a young province, requiring all the funds it can command, is put to an expense of probably £150 — a heavy drain upon its resources. The subject is one which demands minute and searching enquiry, i The court opened on the Ist March, before his Honor Mr. Justice Johnston. The 'Independent' thus mentions the case which forms the subject of our remarks : — 'Charles Swyer, Charles Birch, and Thomas Hopwood were also indicted for felony, but in consequence of the committing magistrate at Ahuriri having neglected to forward the depositions, and there being no evidence, the grand jury was compelled to return the ' bills to the court. 1 And, in the report of the second day's proceedings, his Honor is represented as 'expressing in the strongest terms his reprehension of the negligence of the authorities by which the ends of justice had again been defeated in the case of the man Swyer, who, for want of proper precaution, had been enabled for the second time to leave that court unconvicted.' This account is not, however, altogether correct. The depositions were forwarded hence, and duly received by the legal au- | thorities in Wellington ; they were in the judge's hand when he charged the grand jury ; and were handed by him to the foreman with the remark, — 'if you can make head or tail of them, it's more than I can.' The grand jury, influenced, it is possible, to some extent, by this observation, but said also to have encountered some degree of obtuseness on the part of the witnesses, and to have found themselves embarrassed by extraneous matter in the depositions, found no bill, and the prisoners were discharged. Then came the 'reprehension in the strongest terms of the negligence of the authorities' — his Honor evidently pointing at the magistrates in Napier as the persons by whom the ends of justice had 'again been defeated.' That is to say, through their negligence, or, rather, through the negligence of the Resident Magistrate, for he is the responsible officer, the province has been put to a large expense, witnesses have been taken from their homes and places of business to I a town distant some 200 miles — and all to Ino effect ; while three villains, it may be, j through the same negligence, have been j thrown loose upon our little society. A very serious accusation indeed, and one into the truth of which a careful examination should. be made. If true, the; Resident Magistrate deserves the severest reprobation:; if untrue, his Honor Mr.. Justice Johnston is not likely to addutp the : dignity of his high office. ■"'.;-■ .-.> v.iai . On learning the result of this urit'bWarfl 1 prosecution, we felt desirous of submitting the case to the verdict of public opinion, by publishing the depositions in full ; but found that this was impossible, from the fact of their having been sent to Welling-

ton and no copies having been retained. But, from recollection, we can testify that a good prima facie cause was made out against the prisoners — more than sufficient, in our judgment, to warrant the case in going to a common jury,. Corporal Edwards slept at the time of the robbery in the same whare with the prisoners ; he saw them go out at a late hour of the night of .the robbery, and return with money in their possession ; next morning he heard of the burglary at Newton and Browne's ; some days afterwards, he saw trousers in the j whare ; he identified those produced as part of the same. — Mr. Newton also deposed to the circumstance of his store having been robbed, and identified the trousers produced as part of the property stolen on that occasion. The evidence, of course, was purely circumstantial, but we have heard of many a human being having been hanged upon less. It was also, no doubt, to be found in conjunction with much extraneous matter — for depositions taken before a bench of magistrates must include all circumstances that may by possibility, throw light on the matter under investigation — but a little patience might surely have been exercised in the separation of the wheat from the chaff. And if the military witnesses, as has been asserted, shewed reluctance in the grand jury room to abide by their previous statements, the jury, by the simple act of finding a bill, could have placed them in a position, where, from fear of the consequences, prevarication would scarcely have been attempted. It may be that circumstances in connection with this case have come to the knowledge of his Honor, and not to that of the public, which justify, his remarks in court ; but, with the information before us, we can see no grounds for the same. On the contrary, we see good grounds for a very prevalent opinion that to other causes than the magistrates' negligence may fairly be ascribed the mockery of justice which this case has exhibited.