SUPREME COURT.—CIVIL SITTINGS

New Zealander, Volume XVIII, Issue 1672, 26 April 1862, Page 5

SUPREME COURT.—CIVIL SITTINGS

June 1855. Sxowden* v. Busby. Messrs. Bartlev and Whitaker appeared for the plaintiff, and Mr." Rochford for the defendant. Mr. Bartley opened the case for the plaintiff. This was an action foi £SOO, damages sustained through false imprisonment, the result of proceedings instituted by the defendant. In support of his case he would first call the plaintiff. Henry David Snowden, who, having been sworn, deposed. I am the plaintitf in this action, and reside at Wangaroa ; I purchased gum in February, 1854, from Wiremu Hau and his son Samuel Hau—about 6 or 7 tons ; I agreed with them about price, had it brought to the Wharf at Kcri Keri and shipped on board the Imaum j I then went to Auckland in that vessel and returned to Wangaroa ; on my return I' was summoned to attend the Police Court on a ' charge of feloniously taking away gum, the property of Mr. Busby; I went to the Court and attended at 10 o'clock; one witness was examined, but in the absence of native witnesses, tbe case was postponed ; Captain Clendon was the presiding magistrate; Mr. Busby sat on the bench, somewhat apart from the resident magistrate; he prevented one witnebs from answering the question 1 put to him, saying, " it is a material question, do not answer it;" tbat question was put by me ; he ordered me to keep silence, and 6aid that he was a Justice of the Peace ; this was in the presence of Mr. Clendon; the native witnesses were examined during the investigation; for a considerable time at the commencement, prosecutor, Mr. Busby, interpreted the evidence of the native witnesses; I don't suppose he was requested to do so; the interpreter was in court, and interpreted the latter part of the proceedings; Mr. Busby was not sworn, but got up and voluntarily interpreted what, was said; he first put questions to the witnesses in the maori language and repeated the answers in English; I refer to the witnesses for the prosecution ; on the first day, Mr. Kemp and Mr. Shepherd were examined ; the native witnesses on the second day, these were Wiremu and Samuel Ilau, the men from whom I bought the gum; on the close of the second day's proceedings, I was committed to the lock-up by Captain Clendon; Mr. Busby then said " let him go to goal, let him have no bail, and allow him no communication with any one ;" I was kept in the lock-up till the following morning ; on the third day I was committed for trial and admitted to bail; Captain Barber and Mr. Duncan offered themselves as bail,butMr. Busby objected to Mr. Duncan, saying " that he was not worth the amount;" I was held to bail for felony ; on tbe opening of the criminal session, I attended the court, but no bill was filed against me by the grand jury ; there was no charge made against Wiremu and Samuel Hau ; they stated in the Police Court that the gum was their own property, dug out out of their own land, and sold by them to me; in consequence of that prosecution I have suffered great loss; I had two vessels at tbe time to fiill with timber, and my business was quite knocked in the head ; I had also been put to great expense by coming to town, bringing witnesses, and paying a lawyer—not less altogether than £6O out of pocket, independently of injury to business and reputation ; I paid a lawyer £lO to defend me at the Supreme Court; since that prosecution I don't think I stand so high in the estimation of the maories and of the public; Mr. Busby and myself were both buyers of gum ; at that time gum was much in request. The demand exceeded the supply; on the second day of the investigation, Mr. Busby spoke for about half an hour. By Mr. Rochford—l bought the gum in the commencement of Feb. 1854 ; I received a notice from Mr. Busby after the purchase ; the notice I received was dated 1852, (produced); 1 can't say when it was written ; I never wrote to Mr. Busby at all; the purport of this notice was tbat, as Mr. Busby had bought all the gum on the lands of Wiremu Hau, it was his intention to prosecute for felony anyone else buying the same; I did not think I had any occasion to write to him ; he communicated with me by a summons ; I did not consider the property was his; I don't hnow where the gum was at the time of receiving this notice ; it v as not in charge of any body except Hau; I took delivery of the gum after the receipt of that notice ; 1 bought the gum before getting that notice; Mr. Busby said he had purchased the gum from Mr. Shepherd; when I bought tbe gum Hau said it -was his property ; I don't know where the "Imaum then was; I had a contract to supply Captain Waters with gum contract was dated about 6 months before his arrival, which took place in March ; the gum was on board the Imaum before I got the summons ; when I attended tbe Police Office, I consider ihat Captain Clendon and Mr. Busby both acted as magistrates ; the investigation lasted 3 days ; the witnesses the first day were Mr. Kemp and Mr. Shepherd; the second Wiremu Hau, Samuel Hau, Mr. Shepherd, and Dun Can the interpreter; I consider Mr. Busby *cted judicially on the occasion; I asked Mr. Kemp a juestion and Mr. Busby, objected; the question Svas, Whether Mr. Kemp had said in presence af others that Hau and his son had never dug gum off land that had been sold to Europeans; the charge against me was for feloniously taking away gum from land at Keri Keri; the land, was said to be Osborne's, and Mr. Shepherd said he was agent for Mr. Osborne. I was not imprisoned the first day, but the second day; Mr. Busby acted on the second day as interpreter; I heard no one ask him to do it ; I am not a good talker of maori ; I did not understand the question put by him, because I paid no attention; I heard what he said in English ; Wiremu and Samuel Hau, were the only natives examined ; I examined them through the interpreter; I examined Mr. Kemp, but one question wbs not answered; I don't recollect whether 1 examined Mr. Shepherd ; 1 examined Duncan the Interpreter ; at the close of the second day I was sent to prison ; it was not voluntarily ; I was not admitted to bail ; the orders were given to the policeman that I was to get no bail; Mr. Clendon never admitted me to bail; I told Mr. Clendon that I thought he was not doing me justice, and to be cautious ; I don't recollect leaving the Court during any of the three days' proceedings ; I was not committed for contempt of Court; Mr.. Busby refused bail ; the moment I was committed, he gave these orders ; Mr. Busby assigned as a reason for objecting to Duncan, that he was not worth the amount; it was on the third day when I was committed for trial; my name is Henry David Snowden; I have been called Davis Snowden; the document produced signed " Henry Davis" I think is my signature ; the date is 23rd October, 1836; I have changed my name 1 got involved in debt in New South Wales and came here under a different name ; that was the only cause; for 4 or 5 years I bore the name of Davis. Mr. Busby made the speech I alluded to on the last day ; the purport of it was that I should be committed; it was addressed to all who heard it, but he particularly requested the resident magistrate to commit me ; 1 purchased some gum from Tamati Walker's party, but not from himself; they belong to the same tribe; they told me they dug it off their own land, land that had never been sold to a European ; 1 received a notice from Mr. Shepherd cautioning me from purchasing gum dug from Mr. Osborne's land, (notice read by registrar); after I received this letter 1 never wrote him in reply—l told him that the natives were digging off my land. Notwithstanding that notice, I bought from Walker's party and the two Hau's ; they told me that the land was theirs, and I still believe it; Mr. Shepherd handed me the notice ; I have a whole bundle of such notices. I bought after I received it, (another notice was here put in cautioning him from buying gum from Walker's party on the ground of its being dug on the land of the Rev. Mr. Osborne, dated Feb. 3, 1854) ; 1 bought the gum after that; I never applied to Walker for gum, he having contracted a debt with Mr. Shepherd and made it over to him in payments. Mr. Bartley having objected to this examination, Mr. Rochfort said his object was to prove that Mr. Snowden was not over scrupulous geneially, about buying stolen property. By Mr. Bertley—There are disputed boundaries all through the country. Those parties from whom I bought, told me that the gum was otf their own land. They said so to other parties and also in Court. I bougnt it openly. As a free man, 1 presume I can reply or not to any notes 1 may receive. Mr. White having been sworn in as Interpreter, Wiremu Hau, a maori, deposed. I am a chief of the Waimate tribe, Bay of Islands. I recollect selling gum to the plaintiff last summer. It was somewhere about February (literally, som-.-;tiiije after wheat was cut in the ninth moon). It was my own gum- It was dug from mv own land ; it was dug by me. 1 was charged by Mr. Busby with stealing the gum. I have never b?en tried at Kororareka for such (defandem's couucil admitted that he was not prosecuted). 1 recollect being a witness against Snowden on the occasion of his being prosecuted. When I was iu Court I stated that the sum was my property : J that , it came from my own place. f Examined by Mr. llocbfort—l know Mr, Osborne's : Ihhd, of which Mr, Shepherd fs agent. I know j

I Tamati Walker; Tamati and his party dug some gum in November and December 1553, on Mr. Shepherd's land. I carted that gum from Mr. Shepherd's land to Keri Kcri. Mr. Bartley objected to the question. He submitted that what Tamati Walker may have done, has nothing whatever to do with the case. His Honor thought Tamati Walker had most reason to complainj; he was charged with felony behind his back. Examination continued—l knew it was taken from the land of Mr. Shepherd ; I knew it was the property of Mr. Shepherd, because I sold him the land. I had a dispute with Mr. Shepherd as to the boundaries of tbe land ; I told Mr. Shepherd that I had not signed the deed to him, but I was only in jest. I received a notice from Mr. Busby, stating that he had bought gum from Mr. Shepherd, and cautioning me against gelling any of it to Europeans, (the documents produced is in my handwriting and is in answer to that notice). I made the contract to sell Mr. Snowden the gum at the Waimate in November; that is, a conversation as to the price then passed between us. When I received Mr. Busby's note, some of the gum was at the Keri Keri, and some on the ground. Alter receiving that letter and before answering it, I did not see Mr. Snowden, but I did before receiving the letter. I saw Mr. Snowden and sold him the gum alter I had Sent the answer to Mr. Busby ; before that I had not sold the gum. I recollect a hill called Mangaga, and of going with Mr. Shepherd for him to show me that it was part of the land sold to him. On the following questions being put:—was there any rumour amongst the natives that they had a right to take gum off the unsurveyed land of the Europeans? Mr. Bartley objected to such questions. Mr. Rochford said that the plaintiff had incited them to that course for the purpose of getting the gum ; and that the receiver was always worse than the thief.

Mr. Bartley said that his client was not a Maori, and any peculiar opinions entertained by them were not applicable to him. His Honor—l don't like to exclude anything, as all the facts may tend to assist the jury; they require a knowledge of all the circumstances when considering their verdict. Examination proceeded—The question above was answered thus —It was prevalent but not very much, in our locality; my party had only heard it as a flying report. Mr. Shepherd claimed the gum I had dug. He also told me lie had sold it to Mr. Busby. By Mr. Bartley—l have sold gum to other parties besides Snowden ;to Mr. Waitford. Mr. Busby in the letter in Court, asked me to sell the gum to him, but not otherwise. There have been disputes between Mr. Shepherd and me about boundaries. I sold Mr. Kemp some gum, but it was from his own land. What I sold Mr. Snowden was from my land. Samuel Hau, deposed. I am son of last witness. I recollect the plaintiff buying gum from my father and myself. Tbe gum was sent on board a vessel, but can't remember the name. That gum was dug from my father's and my place. At the police office at Kororareka, I stated that the gum bought by Mr. Snowden was off our own land. I don't remember saying openly—we sold gum; we are the parties you should prosecute. By Mr. Rochfort—Mr. Shepherd claimed the gum that I and my father sold to Snowden ; after Mr. Shepherd made this claim, I informed Mr. Snowden of it. At the time of such claim some of the gum was at Keii Keri, and some remaining where it had been dug. James Foster, sworn, deposed. lam a policemen at the Bay of Islands. 1 know the plaintiff and defendent in this action. I recollect when Mr. Busby prosecuted Mr. Snowden at the police office Wangaroa, for stealing gum ; it was about the end of March 1854, I recollect Mr. Snowden being put in the lockup; during the examination, I heard say, when Mr. Snowden put a question to one of the witnesses don't answer that question ; I don't recollect the question. He also ordered Mr. Snowden to keep silence ; when Mr. Snowden made some reply to that, Mr. Busby said authoritatively that he was a magistrate ; he was then sitting at the Resident Magistrate's table, being also prosecutor at the time. The first day, Snowden was let out; on the second day, Mr. Busby said that there was almost a case of felony proved against Snowden, and that he should be put in the lock-up, and no one permitted to have any communication with him. I heard Mr. Busby hold conversation in Maori with the native witnesses, but only a few words; 1 can't tell whether he was doing so as an interpreter ; I can't state with confidence what these words were, nor in what capacity he acted. Mr. Busby sat at one corner of the table, apart from Captain Clendon ; the tHble, I should suppose, was about four feet long. Mr. Busby stood up on the second day, and addressed the Resident Magistrate stating tbat felony was proved. On the third day Mr. Busby also made a long speech against the prisoner, saying that a felony was fully proved, and that he should be committed for trial.

By Mr. Rochfort—Mr. Busby acted more like a solicitor than a magistrate. He was prosecutor. I think that the words of Maori as interpreted by Mr. Busby were not put down. The purport of Mr. Busby's speech on the second day was, that a felony was almost proved ; rhat Snowden should go to the lock-up ; that no communication should be held with him, and that he should not be held to bail. Mr. Busby spoke as if the magistrate was guided by him. I was in Court during the whole of the investigation. Mr. Snowden was checked once by Mr. Busby, for speaking to the magistrate with reference to the question that Mr. Busby would not allow to be answered. By Mr. Bartley—When Snowden put a question, Mr. Busby addressed the witness, and said "don't answer that question." He and Captain Clendon often sit together on the Kororareka bench. Joseph Riley, sworn, deposed. I am corporal of police at Mongonui. 1 was at the police office when a charge was made against Snowden for stealing some gum. I was there part of the timo. I recollect Mr. Snowden putting a question to Mr. Kemp, and hearing Mr. Busby say, " don't answer that question ; it is of material consequence.'' Snowden was vexed at not being allowed to put such question. Mr. Busby then ordered him to keep silence, saying '' I am a Justice of the Peace." At the commencement of the case, for about 10 or 15 minutes, Mr. Duncan was absent, and Mr. Busby interpreted, but I don't think the Resident Magistrate took down the answers. I don't understand Maori. When Snowden was remanded, I had orders to keep him a close prisoner, and not to allow him to communicate with native or European. 1 received these orders from Mr. Busby and the Resident Magistrate. There were two persons came to bail him out, but I ordered them away ; doing as I was ordered. There seemed to be three or four prosecutors at the investigation. By Mr. Rochfort—The two persons who came to bail him out were Captain Boiger and Johnson the publican. 1 was at the station house ; the lock-up is one room ; I was outside; Johnson spoke first. He said that he would give me £SOO for bail. I did not inform Captain Clendon that this application was made, 1 did not think it would be of any use. That occasion was the first in which T knew Snowden. Mr. Bartley put in the ignored indictment against the plaintiff, and wished it to be read, to shew tbat Mr. Busby was not named there as a prosecutor and therefore an intermeddler. Mr. Rochfort objected as it had been ignored by the Grand Jury. His Honor saw no objection to its being read. Read accordingly. This closed the case for the plaintiff. For the defence, Counsel for defendent, called . Natarahira, who deposed. I am a farmer; I know the plaintiff in this case. I heard a rumour about white people's unsurveyed land ; that rumour was that those lands might be dug without permission. Mr. Snowden told me so, on the commencement of working kauri gum. I owed Snowden some money; he asked me for payment in kauri gum ; 1 replied that I had no lands from which I could get it. Snowden then told me to go to the European's land to dig, because they had not been surveyed ; I did so. Before Snowden told me this, I should have thought it wrong to do so. After I had been told it was lawful to do so, I did think it was right. When I was told so by Snowdon, there were thirteen other persons with me. Mr. Clendon having been sworn, deposed. I am Resident Magistrate at Kororareka, Bay of Islands. I know the plaintiff and tbe delendent. I recollect Mr. Busby bringing a charge against the plaintiff for stealing gum. The investigation lasted two or three days; 1 sent the depositions to the Registrar of the Supreme Court. Kemp, Shepherd, Hau, his son, and Duncan the interpreter, were examined; Mr. Busby was in Court : 1 sat at one end of the table, Mr. Busby at the other corner; there were five feet betwixt us. He did not act as Magistrate. Mr. Snowden questioned the witnesses; the result was the committal of Mr. Snowden for trial. I thought there were sufficient grounds to prosecute him. Mr., Bubby is a magistrate, and a land holder in that district. I Should tt.y a magistrals had to do

with keeping the peace of the district he resides in. I send Snowden to the lock-up, having first advised 1 him to find bail but he refused. He cautioned me ! during the investigation. His conduct then was not what it ought to be on one occasion. Mr. Duncan acted as interpreter. I have allowed parties to put their questions in Maori to witnesses but the interpreter bv me at the time. I took down all the questions. "There were some long stories; I did net consider them evidence, but Snowden requested me net to omit anvthing, as something might turn up to his advantage". I offered to send for bail, and did send for it. °No constable came to me to say that bail was offered. If he had, I would have taken it. At the close of tbe proceedings Mr. Busby addressed me. I said to Snowden, I require bail for your appearance to-morrow morning. Mr. Busby objected, but I said that that was my business. Mr. Busby was prosecutor, and prosecutors may object to questions. I have been 23 years in the district and have known Snowden for ten or twelve years. I cannot sav what his repute is. By Mr. Bartley—Mr. Busby benevolently objected to bail being taken. I don't believe he said, " Silence, sir, I am a magistrate ;'' if these words were said they were not in that form nor in that attitude; I had frequently to tell Mr. Busby and the others to be quiet; 1 will not swear these words were not used ; I believe they were not used, or anything like them ; I recollect the two parties arguing, a good deal of altercation ensuing. Mr. Busby acted as any other prosecutor would be allowed to do ; he was provided with a seat, pen, and paper ; any strange prosecutor would have sat at the same place; the defendent might have had the same accommodation had he wished ; it is not true that Mr. Busby said "lock him up, allow him no communication, don't admit him to bail;" he made one objection, addressed to me, which I overruled ; I gave no such order : I said " Mr. Busby that's my business,— Mr. Snowdon, you had better send for bail; he refused ; I felt annoyed at Mr. Busby's interference; in my hearing he never alluded to his being a magistrate ; there may have been such allusion, but I have no belief or re-collection of it; Wiremu Hau and the other native did not say in my hearing " we are the parties, prosecute us:" they showed no reluctance to come forward ; the natives were not brought before me on any charge; knowing the power of the natives, 1 was not surprised that Mr. Busby did nor prosecute them. [The learned council was proceeding to put questions 10 the witness with tespect to the natives not being prosecuted, and the reason why they were not.] His Honor—Do not be too hard on the magistrates; in this case especially, the natites having stated the land to be their own, they had evidently committed no felony. There were, no doubt, serious difficulties in the way of prosecuting native chiefs, especially at the Bay oi Islands. Examination continued.

I did all I could to support and jprotect Snowden during his examination ; i always do,- especially when parties have no solicitor. By Mr. Rochford—Mr. Busby objected, in his capacity of prosecutor, to bail being taken. He acted during no part of the examination as a magistrate. The witness then proved the signatures of Mr. Busby and Mr. Shepherd to an agreement binding the one as purchaser and the other as seller of the kauri gum which formed the subject of the prosecution. This closed the evidence for the defence. Air. Bartley rose to address the jury. The agreement just put in reminded him of a merchant who sold a bearskin before he had caught the bear. An article had been bought and sold which did not belong to either of the parties. The present action was one of importance, not only to his client, but to the administration of justice, 'the case was strong against the defendent; in fact a case of such wanton severity was rarely presented to any jury. He would endeavour to establish, first, a want of probable cause for the prosecution, and second, malice in prompting it. The learned council dwelt on the fact of the charge of felony being justified rather than retracted, in the pleadings, and urged this as an aggravation of the injury. He denied that there had ever been any grounds for the committal of his client; and could not see how the grand jury could well have done otherwise than ignore the indictment. Notwithstanding a little conflicting evidence there is no doubt that Mr. Busby exercised considerable influence over the Resident Magistrate, that he did interfere, that he did command silence, that he performed many acts which were exceedingly improper. He had done all this, partly because as a magistrate such interference was habitual to him; but animated without doubt -perhaps unconsciously to himcelf— by a leeing of rivalry, and strong hostility against Snowden as a competitor with him in the purchase of gum. In trying to keep that competitor out of the market, he had not only involved him in considerable expense, but damaged him in reputation, the loss of which was greater than that of money, Mr. Busby had commenced these proceedings, had conducted them throughout, and therefore was the " head and front of the offending." In proving malice, the learned council alluded particularly to the fact ef his client, instead of the two natives, being: selected for prosecution. It was well known that if there was no thief, there could be no felonious reception. His client's guilt could be no other than derivative guilt. Mr. Busby knew this well; be knew that the property was bought openly; he knew the persons from whom it was bought—men who have said in court we have done it; and yet as a man and as a magistrate he selected none of these for prosecution, but pounced upon my client. And why I —Simply because my client was a buyer and not a seller of the article. Mr. Busby the benevolent, Mr. Busby the upright, would willingly have bought that gum stolen or not stolen—and had offered to do so in oue of the letters that had been proved in evidence. That gentleman, it was well known, had been eager to buy gum wherever and under whatever circumstances it could be obtained; and because my client and not Mr. Busby, had been the buyer in this instance, he was doomed to prosecution. Having commented on various parts of the evidence, the learned gentlemen proceeded to the question of damages. These had been laid at £SOO and were moderate. He alluded feelingly to the pecuniary loss and injury to reputation suffered by his client—called upon the jury to place themselves, in imagination, in similar circumstances, and in giving their verdict to act on the golden precept of doing to others as they would wish others to do unto them.

Mr. Rochfort addressed the jury, for the defendant. Before commenting on the evidence, he would make one or two quotations, premising the remark that in an action of such a nature as the present, matters of law and of face were too apt to be blended, and sometimes separated with difficulty. The learned gentleman then read an extract to the effect that any person knowing of a felony, and not giving information was guilty of misprision of felony, and was punishable by act of Westminster—a magistrate with imprisonment for a year and a day, and other parties for a less term. The purport of the second extract was that an action in trover would not lie, if the statements in the allegation were such as, if proved, would support a criminal charge. The object of these quotations was to shew that it was not optional with his client whether to lay a criminal information or to sue in a civil action. If he had done the latter, the learned Chief Justice would in all probability, have felt it his duty to nonsuit him, on the ground that he had not prosecuted the criminal to conviction. The learned gentleman who appeared for the plaintiff had certainly done all in his power for his client, but the cause was a bad one. Snowden had admitted buying gum from Walker's party, knowing the gum to be Mr. Shepherd's. He had also made a statement to the natives which was tantamount to sending them into a draper's shop to take possession of all goods that were unmeasured. With regard to the indictments, he could not see how Mr. Busby's name could possibly have been introduced as prosecutor. And with regard to the night's confinement in the look-up, Captain Clendon has proved that such was his own choice. The plaintiff had done little good to his reputation by coming to that court for compensation. If he obtained a verdict, there would, be no protection to property, and the functions of that court would cease. It would be positive encouragement to thieves. The length of the investigation and all the other circumetances went to show probable grounds for the proceedings ; and the attempt to prove malice had been a failure. As to any proceedings against the natives, it would be a useless attempt to enforce the law against the northern chiefs. They had ijo power to do it, even if it were advisable; and the law received but little support from such men as Snowden, who had told the natives that they were at liberty to go on unsurveyed land, and take away propetiy without permission of the owners. He would leave his client in the hands of the jury. His Honor summed up as follows: In order to support this action, there must be a concurrence of malice in the defendant with the want of probable cause for his proceeding against the plaintiff. I take for granted that you are satisfied that in this case no felony has been in fact committed by fhs plaintiff; But though there tras ne felony.

there may have been probable cause. It is your business to ascertain the facts and what inferences those facts lead to and justify. Then you will apply to those facts and inferences this rule, viz., it you find that the information possessed by the defendant was such as to produce in a reasonable mind a genuine belief that the gum had been stolen by the natives (not merely taken them in a mistaken belief that the land was their own but feloniously taken) and that the Plaintiff with a guilty knowledge received the gum under the form and colour of purchase, that will amount to a probable cause. But, if on the contrary you find it impo-sible to conclude lrom the evidence that there existed probable cause, then comes the question did there exist malice In other words, was the defendant, in taking these proceedings against the plaintiff, actuated by evil feelings and_ not by a bona fide and genuine belief that the plaintiff had committed the offence imputed him? This is a question of motive, a question to be decided by reference to the conduct of the Defendant. Upon the original motive light may be reflected from the subsequent course of proceedings. And with a view to this question the whole of the evidence as to what took place in the Resident Magistrate's Court at Russell as stated by several witness (softened down as it is by Mr. Clendon) will receive, I am sure, your serious Consideration. The Jury, after an absence of one hour and fourtyfive minutes, returned with a verdict for the plaintiff, damages £2OO.