MEIKLE COMMISSION.

New Zealand Times, Volume XXIX, Issue 6178, 9 April 1907, Page 5

MEIKLE COMMISSION.

REPORT OF THE JUDGES. ■*' NO CAUSE OF ACTION AGAINST THE CROWN. QUESTION OF STATE BOUNTY EFFACEMEKT OF PRISON RECORDS. IMPORTANT SUGGESTIONS.

Tho report of their Honors Justices Edwards and Cooper in regard to tho claims of John James Aleikle was made available yesterday for publication. Tho Commission was appointed for the purpose of inquiring into the following matters—1. Whether the conviction of William Lambert for perjury established tho innocence of John James Meikle. 2. Whether the conviction of William Lambert raised a reasonable presumption that John James Meikle was innocent, or that he was wrongfully convicted. ,3. Whether there is any evidence to show that John James Meikle has since his conviction made any admissions or statements inconsistent' with his innocence. • 4. As to the circumstances which led to tho prosecution of William Lambert for perjury, and whether there was any undue delay on the jiart of John James Meikle in taking proceedings for perjury against William Lambert. 5. As to flic circumstances under which John James Meikle accepted the sum .of £SOO in full settlement of his claims: and whether, apart from legal considerations, the settlement then made should bo treated as final. 6. As to tho financial position of John James Meikle immediately preceding his arroat for tho offence of sbeep-stoaliug, and during his imprisonment, and at the date of his release from prison and since; and whether,, having regard to all the’circumstances, John James Meikle is fairly entitled to further pecuniary compensation in respect of his conviction and imprison* ment, or in respect, of the loss and suffering alleged to have been entailed upon his family thereby; and, if so, to -what .amount. 7. As to tho amount of legal end other costs incurred and 'paid by John "James Meikle—(a) in respect of his defence at his trial upon the charge of sheep-stealing; (b) in respect of the prosecution of William Lambert- for perjury; and (c) as to. the circumstancos under which John James Meikle accepted the sum of £204 Ilia Id in full settlement of'his claim for legal and other costs; and whether, apart from legal considerations, the settlement then made should bo considered as final. 8. vVhother, having regard to English precedent,and the ciicumstanees of the case, tho claim of John James Meikle that his name ho removed from the prison records can bo given .effect to; and, if not, what alternative is practicable in the way .of , placing,.,on record his innocence, if in your opinion his innocence has Veen established or may bo presumed. 9. Whether, in your opinion, legislation is necessary to give effect to your recommendations, or to any of them. I THE FINDINGS Ar to the first' question.- The Commission finds that the conviction of William Lambert for perjury did not establish the innocence of the claimant. 3. The conviction of .William Lambert did not, per se, raise a reasonable presumption that tho claimant was innocent or. that he was wrongly convicted, n 3. No evidence 'has been adduced before us to show that the claimant lias since his conviction made any admission or statements inconsistent with his innocence. ', ; , 4. No evidence has been adduced before us as to the circumstances which led to the prosecution of William Lam. bert for perjury other than the circumstance that William Lambert was tho chief witness against the claimant on tho prosecution of the claimant for sheep-stealing. There was no undue delay on the part of the claimant in taking proceedings for perjury against William Lambert, j It does not appear to the Commission, however, that the above questions sufficiently raise the , real questions intended to be referred to them, upon this branch of the inquiry, and that these questions really are—(a) Has sufficient evidence been adduced before us to'.show that the was guilty or was innocent of the crime of sheep-stcaling, whereof he was-convict-ed? (b) If the evidence is insufficient to enable us to arrive definitely at either conclusion, is the question of the guilt of the claimant so far left in doubt that, if he were now being retried by us as- a jury upon an indictment for the said crime,’he ought to bt acquitted upon the ground that tho said crime had not been sufficiently proved against him? The Commissioners point out that the matters which they have been required to investigate in order to enable them to answer these questions happened over nineteen years ago. Many of the witnesses whom it would hayo been desirable to examine are dead, and the memories of those who survived have been dimmed by so great a lapse of time. Even if an earnest desire to speak the bare truth, adding nothing and suppressing nothing, could be attributed to all the witnesses, it must be obvious that it would be extremely difficult, if not impossible, for them to. feel any degree of certainty as to the accuracy of tho conclusions of fact which they were called upon to form. THE CLAIMANT AS WITNESS “The difficulty in the present case,” say the Commissioners, “is enhanced by the fact that the claimant, who is properly claimed by his counsel to be his own chief witness, has proved himself, in his evidence before us, to bo utterly unworthy of credit in any matter affecting his own interests. The particular matter in respect l of which the claimant’s reckless disregard of his oath was made clear to us was with respect to illicit relations, which he ultimately admitted, that he has had for some years with a young woman named in the evidence. Upon cross-exam-

ination by lor the Crown, ho denied these relations after repeated warnings from both members of the Court, and after his attention had been pointedly called to the fact, which he admitted, that false evidence upon this point would go to the value of the whole of his testimony. Nevertheless, ho denied, thoso relations over and over again, and in every possible form, in 'the course of ’ such denial blackening, not shielding,.the woman’s character, and endeavouring to fasten his own transgressions upon- his nephew. Counsel for the claimant endeavoured to persuade us that the' claimant’s natural modesty induced him to swear falsely in these particulars, and that his evidence as to matters in controversy was still reliable. In our opinion,'however;, no weight is to he attached to the evidence of the claimant as evidence in any particular. “Wo regret that we are not able to attach much greater weight to the evidence of the claimant’s wife." In oiio particular, as to which it appears to us very difficult to believe, that her inaccuracy was duo to mistake alone, she is admitted to have misstated the facts to us in her evidence. . ■ .■■ . Nevertheless, weighing tho whole of the evidence as best we can in circumstances so difficult,. wo aro of opinion that if the proceedings before us had been an actual retrial of the claimant before "a jury upon tho charge pf shoop-stcaling (of which ho was .convicted in 1837) the, evidence of ,Ins guilt is so far .from conclusive that it would an such a retrial . have been proper to acquit the claimant upon the charge, and wo should have so stilted to the jury. ~Wc have, the honour, therefore, to recommend that, for tho purpose of dealing with the -laimant’s claims, he should be treated as having been acquitted upon a retrial before us of the charge of sheepstealing, of which-ho was found guilty in December, 1887.” .», '■ - THE PAYMENT OF sGSOO The '.Commission, thinks there can bo no doubt that if the claimant had at -tho time of receiving from Parliament tho sum of £BOO "by way of compensation for the loss he had sustained an connection with his business, the legal costs incurred in defending the charge preferred against him, and securing tho conviction of Lambert for perjury, ■ and also by way of compensation for tho .Imprisonment he has suffered,” made his protestto the Prime Minister, and had then declared his intention of again presenting a petition to Parliament claiming further compensation, this sum of £SOO would not: have been paid to him. If .the claimant had had a cause of action against the Crown, or 'against, any poison representing , tho , colony, in respect of the matters ,of which lie . complained, there could bo no doubt that 1 tho. payment made to and accepted by him would have hound him legally, and, in the Commissioners’ opinion,, morally also. - ; -

The claimant’s grievance, the Commissioners hold, if lie was wrongly convicted, was against certain persons whom he alleged to have committed perjury upon his :trial. No attempt had been made to impugn the fairness of that trial, and no suggestion had been' put forward that the claimant’s conviction was procured by any erroneous ruling of the learned Judge who .presided at the trial, or, by any miscarriage upon the part of any, officer of the Crown. The claimant’s claim, therefore, Cannot bo put'higher than as yan appeal to the bounty of the State, and Parliament alone had the power to regulate the bestowal of its bounty in such manner, as it thinks fit. “In the first place,” say the Commissioners, “it appears to us to bo obvious that, in the interests , of all those who have or may have what are conceived, to be moral claims to the bounty of the State, there should be some definite rule by _ which a . final settlement can bo arrived at, so as to preclude those claims .from ’ being afterwards successfully agitated. If there is no such, rule, it appears to, us that the - Government of the colony must" in all teases be exceedingly chary in allowing*any such-claim at all, lest its allowance should bo treated as an admission not merely that the claimant has a fair moral claim upon the bounty of the State, but that ho has a moral right to compensation or indemnity against loss, which'are very different matters. ... 'We have the honour to report that no such moral right to compensation or indemnity has ever, so far as we are aware, been recognised by the Government or Parliament of Great Britain,: or of any community regulated by the principles of English law.” ADOLPH BECK CASE After .reviewing the one authentic case in which a largo sum of money has been paid to a person wrongly convicted (£SOOO to Adolph Beck) the Commissioners proceed:— “We repeat that wo are not . aware thbt in such circumstances as exist in the present case any moral right in the person wrongly convicted to be compensated or indemnified out of the. public funds has ever been recognised or allowed by the Government., or Parliament of Great Britain, or of any community regulated by the principle of English law. . To this we add that wc are not aware that in such circumstances any .substantial grant has ever been nmdo by way of bounty, as distinguished from compensation, or. indemnity, to a person who, without any misoonduct, laches, or mistake on the part of some public responsible official, has had the misfortune to bo wrongly convicted. . “Wo think that it is proper that we should call the attention of those who are asked to establish a new precedent in this respect in the present case to the fact that such' a precedent must open up an enormous and constantly

recurring number of claims against tho State. “Tho wrong suffered by a person who, apart froip a miscarriage of justice bp the part of some public official,' has boon "wrongly prosecuted, but has escaped conviction, is in character and in. many of its consequences tho same as the wrong suffered by a person who in the same circumstances has been wrongly comicted. No year passes without many persons charged with criminal offences being acquitted by juries, not infrequently upon tho .direction of tho Judge, given constantly because the evidence is insjifficicnt to warrant a conviction, although the Judge himself may entertain but little moral doubt as to tho guilt of the person charged, and in rarer, but by no moans uncommon, cases because, there, is really no ease against the prisoner. In such a case an injury, whicli.may he practically irreparable in its consequences may bo done to the person charged. We may instance the case of a medical practitioner charged with manslaughter, an alleged malpractice, or gross neglect in the exercise of his profession, and committed for trial. It may happen—it has happened quite recently in tho history of tho criminal jurisprudence of this colony—that there was no evidence which could warrant the committal, and that the Judge has directed the Grand Jury to throw out', the bill. . Yet, who shall say that that medical practitioner has not. suffered a grievous wrong, tho consequences of which may attend him .to the last day t of his life. ‘ ’ “Again, we may instance ’ the case—■ and such cases arc by. nb means unknown—of a person committed for trial upon evidence'which apparently - warrants the committal, but who has been ablo satisfactorily to establish his innocence upon a trial in the Supreme Court. Such a person may be, and in many cases is, a person in a humble rank of life. To defend himself against the charges trade against him he may have exhausted the whole of his scanty means, have been beggared 1 in his circumstances, and injured in his reputation throughout tho whole of his life. “In the cases which wo have instanced it" is impossible to deny-., tho grievous wrong which tho victims of circumstances have suffered. “If compensation or indemnity could bo limited to these classes of cases, it is possible that .this community mightrecognise a moral responsibility to-, wards such persons which, however, has never, so far as wo aro aware, hitherto been recognised in any, oven , tho most highly civilised, community. “It would he impossible, however, to inaugurate a system which would ro-.. cognise the right of such jjorsons to compensation or indemnity without let.ting in claims in vastly different circumstances. “ The common jury is, in our systofn of jurisprudence, which in our opinion it is impossible and undesirable to abolish, -though it may possibly’ he subject to some modification', the tribunal, which is ultimately charged with the determination of whether or not a person arraigned for crime is guilty, and upon that question Sts decision is in the case of an acquittal final and,: irrevocable for all purposes. “Not a year passes, without numbers) of such persons .‘being acquitted by juries, sometimes in the teeth of evi-_ denoo which to.the mini of the presid ing Judge is clear ~and convincing; • more often because, although there is no moral doubt as to tho guilt of the person charged) tho evidence, is largely insufficient to warrant a, conviction.

“It would be impossible 1 to inaugurate a system which ' would ' recognise i tho right of the persons in the first two •' classes of oases which Wo hard men. tioned, and who are really innocent, to indemnity or compensation without at the same time recognising a similar right in persons who have been acquitted by juries, although there, may. be no moral doubt in the minds of the persons best qualified to judge of their guilt; for, upon this.. point,,..the vor--.diet of acquittal by a common jury is, as ivo have observed, necessarily .final and conclusive for-pH purposes. “To recognise such rights would impose an enormous; and ever-increasing burden upon the finances of the State. No one supposes that our present sys- ( tem is x>erfeet. No one but must rojoiqp if some system could bo devised which would relievo the truly innocent without letting in an enormous crop of'claims of persons really undeserving. We know of no system which could bo devised for this purpose. • _ “Certainly the deserving cannot he .sifted out from the undeserving by means of Parliamentary Committees, or even by means of such a Commission as has, been entrusted-to - us. Even if it wore possible to sift out the deserving from the undeserving by means of such a Commission, tho cost must necessarily be prohibitive if that' system wore adopted in tho case of every claim. If it were adopted in. some cases, but not in all cases,, the inevitable result .must be that the pertinacious and probably the least deserving would be the only persons to benefit by it. - - “Hitherto, tho . innocent in such cases as those to .which we hare referred have had to suffer for tho general benefit of the community of which/ they are members. It is for Parlia. ment, not for us, to say whether this . principle shall be departed from in r the future,'with'the necessary consequences to which we" have referred. Our duty is discharged by pointing out what these consequences must be.”- . v MEIKLE’S FINANCIAL POSITION As to tho financial position of Meikleimmediately prior to his arrest, dur. ing his imprisonment, and at his release, tho Commissioners, accepting as correct the estimates given by . claimant in his evidence, find that at the time of his arrest claimant possessed property in his own name worth £2852,, in addition to 20C acres, worth £927. in his children’s-name. He also had sheep, cattle, horses,- and farm implements that brought the ‘ total of his assets to £4321. Against this ho had liabilities amounting to £I7OO, the items being: First mortgage £IOOO, ' second mortgage £2OO, crop lion of £3OO, other creditors £2OO. At tho time of his release claimant appears to have had no assets, “and. ho has over sinco been* and now is, in debt." . Tho Commissioners-are unable to an. , Swcr the question as to the legal and other costs incurred by tho claimant . in his defence at his trial, although a statement was handed in by Mr A. It, Atkinson. As to the cost-of prosecuting .Lambert, tho Commissioners have received from tho Justice Department documents purporting to Ire certified copies of receipts for, £294 16s Id, and details of tho witnesses’ expenses claimed by claimant in November, 1895, in respect of the prosecution of Lambert. “As to the circumstances under which tho said claimant accepted the sum of £294 16s Id, in full settlement of his 'claims far legal and other costs aa

aforesaid, and whether. apart from legal considerations, tho settlement then made should bo treated as final, (ho Commission finds that neither the Crown nor the claimant has. given any evidence, properly so called, or any information other than is contained in the documents referred, to above. They report thui if the said sum was paid to the claimant on tho basis purporting to ho shown on tho documents from tho Justice Department, such payment should, apart from legal considerations.. be treated as final in reaped of the prosecution of Lambert. THE RAISON RECORD The Commissioners report also that tho claim to have claimant’s name removed from the prison records cannot bo given effect to either having regard i.o Knglish precedent and tho circumstances of the ease, or having regard to common-sense and the safety and inviolability of public records. As to the concluding paragraph of the eighth question, the Commission reports tljat the answer is to ho found in the words of the* committee on the Heck case: “.May not the time have come for abolishing the anomaly of pardoning a man who never ought to have hi‘oll convicted, and a simpler remedy adopted ol quashing the conviction on motion by the AttorneyUoneral and entering an acquittal as of record.” Tho alternatiivo is the grant of a free pardon, and the Commission recommends that ono of these two courses should be taken for tho purpose of placing on record the conclusion that upon the evidence tho claimant would have been properly Acquitted. As tio the ninth question, the Commissioners report that, if it is thought desirable to adopt the course suggested in the paragraph from tho Jleck Committee just quoted, legislation will be necessary. Such legislation should bo general in its terms, and should by no means be limited . to Meikle’s case. Tho Commission emphasises tho necessity of great care in tho drafting, and suggests that such legislation should bo submitted to tho Court of Appeal and the recommendations of tho Court adopted without qualification, alteration, or addition.

Attached to the report is tho claimant’s statement of his costs and expenses. Summarised, these are:— ' £ 'S d llegina v. Moiklc (1887) ... 191 8 10 Moikle v. Lambert (1894-5) 475 18 11 ”1 years collect evidence against Lambert at £2OO a year ... ... ... 450 0 0 Expenses attending Parliamentary Committees ... 250 0 0 Total ~..£1367 7 b MEIKLE’S RECEIPTS The receipts referred to above in tho concluding portion of the Commis■d/mors’ report are throe in number—(l) receipt for £500; (2) receipt for £B3 0s 3d for law costs; (3) receipt for £2ll 15s lOd expenses of witnesses in Moiklo v. Lambert. Tho first receipt is dated December 15th, 1897, and reads: —“I, John James Meilde, do hereby acknowledge to have received from tho Colonial Treasurer, on behalf of her Majesty tho Queen and tho # Governmeut of colony of Now Zealand, tho sum of ‘ £SOO, of which tho sum of £250 is now/ paid to mo, and the further sum of £250 is about bo paid, at ray request, to George Esther, of Dunedin, in full satisfaction, release, and discharge of all claims and demands, or alleged claims and demands, which I now have, or at any timo heretofore have had, against her Majesty tho Queen or tho Government of New Zealand, upon or in respect of the prosecution and conviction of myself for sheep-stealing, or tho prosecution and conviction, at my instance, of one William Lambert for perjury, and in respect of expenses, costs, or charges incurred in or about tho said prosecutions, or cither of them, and any losses sustained, or alleged to be sustained, by mo thereby.” Tho other receipts are not in these general terms, but are merely receipts for expenses in connection with the prosecution of Lambert.