RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 1690, 31 May 1867, Page 5

RESIDENT MAGISTRATE'S COURT.

Tai-H.Hi.tAv, May 3Otji. (Uufoi-u tin; Hon. A. R. 0. Strode, 101., l)iii.-N rKKN:cr,-is. ~ Jane Turner v.-;is charged with thin oiience, ami wsts fined 2(1-5, with tho alternative of 48 hours' imprisonment in default of payment. Fi-Riui-s I)!uvixo.—Joseph Pncl-man was chiir^cl with having, on tlic I.oth inst. committed this otteuee. Tho Commissioner of Police said that he had seen the defendant, driving mi express waggon with iiux-si liorsits, in a most reckless manner, and to the danger of foot-]>assenjjers. A Mr Every corroborated this statement, and the defendant, who did not appear, w:is fined 1/3 and costs. Assault.--The case of Macdonald v. Cnrric, :\ charge oi assault, was dlsnuHsod for non-apj"H:umnce. Cha.u«:j-; of Wuoxorui.tv PuACixsiKt; AS J*i.VHHISTKH AND SuLIUITOH.— Heiir) Smytliiea was charged, on the information of (*. K. Turtmt, with having committee] this oltenee. The information was to the eil\;ct that, tho defendant, after the passing and coming into force of the Law Practitioners Act Amendment Act, 1800, ht bein;/ v person who had proviously boor convicted uf forgery, had not regarded tlu said statute, but had contravened the provisions of the 3rd clause, by appearing, on days named and on divers other days, and practising as a Barrister and SoHcitoi of the Supren'ie Court, in the cases—Marshall v. Campbell, Hunter v. Macgregoi and Harvey, and the appeal cjise oi Clements v. Edraondson. Sir Macsisscy appeared for the. proaecu tion ; and Mx Buxy tiiies conducted his owr i defence. Sir Smythies took preliminary objec tion to tho proceedings. Ho said tlmt hi did so on tho ground that the matter was purely a Governmental .one, and the information could only be laid by the Attorney General. This, up to within a ree'en period, had been the opinion of thos< who were now proceeding against him for he know that Mr Mac^regor am othera had asked the Government t prosecute. Mr Macassey objected to; Mr Smythie asserting any thing in the course c argument that could not be; afterward proved. Mr Smythies - contended that th Atttoniey-Greueral could alone proceed i such a cas,io, and that a "subject was nc allowed to interfere. He was prepare to admit that the Act made an actio wrong which was not ivrong before,; bi as it was a: matter .affecting- the Goven tuent, relating' to the admiuistratio o£ tho Laws of a Country,; was riot for a subject to be allows to carry on a prosecution which, successful, would have the effeset of ptinisl ing him for doing that which all tl Jiulgea of the land had consentted to pc mit him t^ dd,r and tliat with a perf© knowledge of everything that was khowi 'Thd''M&gisira;t6 shoulS look at the su rounding circumstance?, and ought not1 allow strangers to interfere, particularly

fellow-practitioner,' obio who had no more ri^ht to practise thani he had, and who kid the information from spiteful motives. Mi* Macasaey objected to these statements, and tirged that Mr Smythies. was bound to coniino himself to Jirguinents upon his technical points. MrSmythk'B said that if the Magistrate held that an information like the present could be laid by a private, individual, then he ermtewhd that Mr -Turton, of all others, was not the man, and that he (Mr Smythies) had a right to show npmi what grounds he made his assertion. If it could be ahown that a charge was made purely for apiic, it would not be allowed. Mr M;tca«sey again objected, and tho Magistrate said that lie did not think ho could take into cottHideration what might be the motives of the informant. Tlmt would f>crluip3 be a Matter for decision in -iftor proceedings. Mr J>»»ythie.f submitted that he had a right t<» »how that tho informant had given consent in a solemn numnisr to his (the defendant's) practising, had in fact J«id a trap for him. The Magistrate, however, w.us still of opinion thai such in.at.terß could not be gone into. Mr .Smythics said his next'objection to the proceedings waa that the information was not sufficiently specific. It set out certain overt acts, but in the 4th clause the words "divers other days" were repeated several times. Tho Act made every instance of practising n distinct offunco, yot ho was called to pie id U> this section of the information. Mr Mucassoy said that evidence would only be given on specific charges ; and tho Magistrate, pointing out that the defendant was not called upon to plead, said that ho looked upon the words in question as surplusage. Mr Smythks said that Hawkins laid it down that an information should be as precise as ;an indictment, and as a precedent he cited the case of Queen v. | Barton, in which the Magistrate himself had held that the charges must be inure specific. Mr Macassoy contended that Hawkins did not refer to an information under such an Act a?t tho one under which the present information was laid. Tho Magistrate overruled both points advanced by Mr 'Smytines. He considered that Mr Turton had a perfect right to lay the information, and that tho words " divers other days" were mereHtirpluaage. Mr Mac;is.soy said tho information "was laid under the 3rd clause of the Law Practitioners Act Amendment Act, 1800. This was framed much thu same way as English Statutes, the only difference being that tho latter wore more severe. The first part of the clause should bo properly divided into two parts. Thus the first part, " No person who h:ts or shall have been convicted iti any part of tlvz British dominions of forgc-ty or perjury or subornation of perjury shall be enrolled or admitted to practice'or shall practise as a barrister or solicitor in Now Zealand," waa clearly prohibitory, and an information would lie, no mutter by whom it was made. To thu second part of the clause, " And if any person who hits or shall have been so convicted shall at any time hereafter practise as a barrister or solicitor of the Supreme Court of New Zealand such person shall be liable to a penalty of live hundred pounds for every such offence." The Attorney-General would bu necessarily a party, and in an information for an in- | die table offence it was sought to leave the defendant to combat the case in a higher Court. It was not for the Magistrate to consider questions of law, but to leave them for decision to a higher tribunal. Ho could not help fooling pained at having to enforce a charge of this nature against ono in the position .of h'fe th-j defendant was, and one arrived at his years; but defendant had brought it upon himself. Those entertaining strong views upon the subject had waited in the expectation that lie wutild retire, but lie had continued to pr.ictiau. Tho defendant liad bee-n admitted to the Bar in February, 1800; and ho (.Mr Mac&ssoy) must, in justice, say that, before Mr Smythies was admitted, every moans had been taken by him to have his case investigated full}', and the Judges in conference had only arrived at the conclusion that his application should be granted after careful consideration. But a higher authority had declared that ho was unworthy to hold the position, and to the Legislature the Judges must submit for the purpose of enforcing the statute, which should not be allowed to become a ■ dead letter. Mr Maoassey then pro- ' cecded to state that ho would prove that ' the defendant liad practised aa solicitor and banister. Tho information contained 1 some six specific charges, upon which ovi--1 denco would bo given. He would put in a '' certified copy of the records of proceedings in the Central Criminal Court, .London, where the defendant had been convicted of having, in his capacity as solicitor, forged the signature of one ' Loden. Th« indictment contained seven ' counts, and tho defendant had been found guity upon each count, and had been sentenced to one year's imprisonment upon each count, and the sentence 1 being concurrent, he was liberated at the end of the year. Mr Macassey then detailed tho particulars of the ease, and re- * ferred to each of the counts of the indict- ' ment, with a view of showing that tho defendant had been convicted of '- forgery, with intent to defraud'Soden of L 355, and-ho"submitted that this would show that Mr Smythies was a person who ' liad committed an offence- which would * prevent him from practising as a Barrister or Solicitor. With regard to any accusation that might be made as to ?fche | delay in the prosecution, he'had stated ■ that those who had taken action in; the matter had f elfc it incumbent to wait to see if Mr Smythies would himself retire, and a further delay had been caused in send.ing to England for evidence necessary tc * support-the case. He submitted that il tho evidence iiiddueed supported the bast "; he had stated, it was clearly the duty oi the Magistrate to commit, reserving doubtful -poirits of law or fact for the icon ? sid oration of a higher Court, j ?.-.; j The following evidence was thoi ft 'given1:™ ■•'• '-'■ >:i-- ■<■.;•, -. ■; ] " Boliert CUapman: lam Begistrar* o l" the Supreme Court of Kew Zealand t<J Oiago and, Soutliland Bisfcrict, ah^l hay. I" been so for a numßer of years MsiL X is part of 2»y duty to record the proceod ~ ings of the Court in. -JBatwt, and I ai necessarily present when those procoodina '* j take place. I know the defendant, M a * Smythies^ lOn the 28th of January lasl

I find .a minute recorded of a case, Clements r. Marshall The minute' 1 product was probably written the same clay. B was copied from one taken at the time. Mr Smythies objected to the reception of the minutes as evidence, on the ground that they were not the orijjinala but cophis. Mr Macassey said the Rule would not apply if the originals were not in existence. The objection was overruled. Examination resumed; This is mi ■, oilicial mrord of the Court, the other is ( only a memorandum. On the occitsion . referred to, Mr Smythies moved tor a rule nhL I mppmv he was dressed in the cosstume of tho Bur; but I cjinnot positi%-ely say so, as in one or two instance;* I liavo hccm barristenj not m coitmno. ; Mr Smythies's applsaition was granted. The words in t c record are", "Mr Binythjcis moved fora rub nm on btludf - of pLiinl;iif, to set aside tho rule of 10th ; January inst, on im groiuul that the data 1 of tho rule is ineompk-tdy inserted. Rule gmrtol" On Umuna to the official : record of February sth, I find that there < was a Bittting in Jiaw>t <m tliat day. Thu t i-ecord shows that Mr Smvthies appeared , < in the following cn«e :—iiunlnr t " appel- ! 1 Lint, Jlncgrcgor, rcApondcnt. From the \ record, I. can say that the defendant ! rtjipeared and practir;cd as a barrister. The caso was argued, and the Court took t time to consider. I lave no doubt that Mr Smythies appeared in bar cos- ; tume, for I never observed him do otherwise. The record of the proceedings of the Court on the 21st iuwtant show that tho casei of Clements, appellant, and Edmondßon,reßpondeiit,canve on forargumont It was an appeal by Clements from judgment of the Resident Magistrate ; and I can, from my own knowledge, say that tlic defendant did appear before the Court mid. practise as a barrister. I can vouch for the accuracy of the minutes I have read, ,By Mr Smy.th.ies : I know the handwriting, of the signature to the document now bWwii. It is signed by It. A. Strang, Registrar of Court of Appeal at Wellington. Tlie annual certificate as barrister [ now shown me, is signed by me, and bears I the seal of the Court. Mr .Smythies put in two documents referred to, the first of which was as follows :-•-" Re Smyfchk».<j. Conference, 27th Oct., 1805. Evolved-'The Judges aasemblcd in conference are of opinion, after reading tho petition, and the docu- j : ments annexed (which have been fur-I nished in consequence of a memorandum lof the Chief Justice after last conference), | that the Judges at Dunedin, being satis- | fied ■with the examination of tho peti- ! tioner, may admit him, notwithstandiuif : his conviction in 1841). On motion that ' tho admission shall be in opyn Coux-t, and ; that tiiiero is no necessity for discussing ■ the merits of tho cane in open Court un- ' less opposition be ofiered.' True extract. | V. U Btrang, Acting Registrar of the < Court of Appeal." Mi- Smythies waa ; about to examine tlie witness as to what j hud passed, when motion wa» made in j Court here, that the defendant .should be j admitted as a barrister and solicitor. Mr ; Maeaaaey ai.ked if his admission as to ■ what had passed would be accepted. Mr \ Smythies agreed, and Mr Muea-ssey pro- \ ceeded to state that, at the sitting in que.s- | lion, no opposition was offered. Tlie \ Magisitratu, liowever, held this i» be irrc- \ gular; and Mr Smythies intimated his.! intention of cull in «j Mr Miicaasey m a ; witness. A. A. Catomore :I am Deputy Registrar of the Supremo Court. 1 know "the defendant. He is at present on tho rolls of the Court jus a barrister and a solicitor. He paid the annual admission fee in 18G(>, and for this year. The latter, by the Law Practitioners Act, ISGI, entitles him to practise until January 10th, 18(13. J produce the papers in the case of Clements v. ] Marshall, to which Mr Chapman referred. '• I produce papers prepared by Mr Smythies ! iii that cause-, onu an affidavit sworn by ! him on the 28th of January, 1307, In it i he describes himself as—" J, Henry Smvtliies of Dunedin, solicitor for plamiiif." On tlie back of the afHdavit lliere is printed li Henry Smythies, solicitor, Dunedin." I produce other documents bearing the same printed endorsement, one an aflid&vit wade by Ifnrry Waddiugfcon Smyl;hie.s, clerk to llcpry Smythies. 1 also produce the Judge's minute, on whidti appears a memorandum that the summons was dismissed, in the handwriting of Mr Justice Chapman. (The witness produced other papers in the awe* Hunter v. Macgregor, Fuirburn v. Macjfrcgor" and Harvey, Ac.) MrMacassey put in ;us evidence a certified copy, of the record of the conviction of tluVdefeiidiint, in tho Central Criminal Court, London. Ho also tendered the defendant's deposition, iaade on the 9th of May, 18G0, in the c;tse, Queen, on the infoirmation of Russell, v. Barton, in which the following admission was auade : " I was a Solicitor in England, and was convicted of forgery, in the capacity of such, solicitor." Mr Smythies objected, and .said that his objection would include evidence intended to bo given to prove his identity. He presumed the deposition was put in as a i confession of. guilt, and he contented that iit was not adrnksable, as when it was nmdo, he had not been cautioned in tho usuail form, and that at the time it was made, the crime with which he was now • charged, did not exist 'At.thattimehewas ; not charged with, anytliing, it i»a« a matter ;of perfect indifference to him whether lie ansvrered the question or not AH tho i' -law went on the supposition tliat the eon- . fession of guilt would not be made, if not true,| from, fear of punishmeni. He had - hiwl ho knowledge of the possibility ottb& > pi-esiWii charge.being made, and it would ibe <ipening a: way to injustice if such 5 odmijssicmsf- were received, particularly in $ relation to politics. A man might lx>ast I of bbirtain actions, and laws might be - enacted to make those actions crimes. A > 'confession' made in a civil case could not E be iwed agaiiist a prisoner. i Tlta Magistrate pointed but that in iJio \ cjise referred to, the defendant was not an j accuiiecl, b«t was only a -witness; and that - tbertf were exceptions to the rule, as in evidence given before a coroner. Nt "Mir Smythies saict. that in tlie lattei case acrin«jwaf}ine^tence. Notsoherej I. .imd^eladjaiiasioij, luid b&en. made againsi 1,. no interesfc. v aga«Pillß3etl~"toi the a danger pi laws 7 beingmade to meat Icon £ .fessions, • i -'. •': .:'..■"••"'' -- r ■—:.■-.■■' - r ..■ L- Mt Miicassey 'said tliat Mr IStiiythJei a had ijjojifused the rules as io y atbiSis^ioui m: and fiJoMessions. He cdtJ^en^l th^t ihj \x depdaitiouwas admissible, and citeSiati fc, thoriitiea in \ siifporfc otiiis argument; Th

Magistrate said he had some doubt about the nmtter, l>ut thought it shutiltV be admitted. The deposition was then put in as evidence, and MrCVtleiiti, Clerk of the Court, proved the defendant'ssignature. George Bell : I am sub-editor of the' OUujo Daily Times, and was so in May last year. 1 have now in my possession n letter signed "Henry Smvtfjust," and ndilruiwcct, "To the Editor," &>x I ;vm ivBtrucled {o say that there is no objeciiou on the part of the paper to the production «>f the letter, if the Court requires that to bo done?.—[The lettvr wns produced. ]. 1 produce «t copy of the Tim*s of the j 2th May, ISOii, in which, that letter appears to be printed. The letter nru t have been received at the office on or before-the II tit May. In tho letter I find the worth, "He then said, he would make me ; ar.d commenced a prosecution In tins name of a person of the name of Soden, for forging hs.H name to a retainer in a nuit of Af (7^ v. 3/t7'.-j«. It would be too lengthy to explain the nature of thu charge. Mr Cooko'rf (Q, O.) letter, who wa» my counsel, hereafter net out, sufficiently shows the nature of it, and Mr linker's loiter shows that no forgery was committed." 1 do not know Mr Smytinea's hand-writ ing, Alfred A. Catumorv {recalled): The siifnatnre to the letter produced by Mr Bell is in Mr Smythies's writing, 1 huvo no doubt of it. The iKujsagia read by.Mr Bell, from tltat letter, are also in the hand-writing of the defendant. The letter was tendered in evidence. Mr Smythies re-took his objection to tl*o admission of the evidence ; and he quoted further in support of his objection. Mr Macassey said that the Magistrate was not asked to #ivo an opinion on the policy or justice of the Act of 180(5. If there was any benefit to be gained by the defendant, from the objection, he would be able to gain it hereafter. Mr Smythies submitted that identification was of the utmost importance. If there was no such evidence—and ho objected to the admissibiiity of all that had been given on the point—the prosecution must at once fail, and there could be nothing like a committal. The fetter was admitted. Mr Macassey tendered the short-hand writer's report of tlio prosecution in England, but would not proas its admission agdust the winh of the defendant. Mr Smythies readily,admitted the document : and it was put in. Thi.'j w.'ts the ease for the prosecution. Mr Smythies said tliat he looked upon the proceeding as a moro trial of hi;; ri^ht to pnieti.se ; for he did not think that anybody could suppose for a moment th.it he h;«l been guilty of a misdemeanour, after seeing the eortiiiento of bis admission, and tin; certiiieate authorising him in practice during the year ending U'Sth .lanuary, 180 S. W;u> not tSa? latter eeriilicata iv complete answer to tlie present charge I That certificate was given after tae Act of ISiJG came into operation, and with a full knowledge of :s!l the circumstances now relied upon. So far as any misdemeanour wan c»>nceined, tli;d certificate might be taken as an absolute dispensation. Even supposing it possibly that the law, taken strictly, w.m against him, lie thought that nu jury would think of convicting him of an oUencu against ; the peace of thy Crown, after seeing : the certificate to practise during thw year. Mr Macassey submitted that the* words "or shall practise," in the Jird .section of the Act, put it beyond a doubt, that there had been an oilbnee. or that if the Magistrate had any doubt:, it wiuc one- which i must be settled by a higher tribunal. | The Magistrate thought that the action of the lt:*giatnu' ( in issuing the (x-rtiiicite, could not upset a provision in -in Act of the Assembly. Mr SmythicH n;iid that the Registrar was but the officer : the act of isntiiag the • certificate must bo taken as the act of the i Crown, the f'.:cs being paid, really, to the Crown. Tho Magistrate considered that he Uh<l but to consider whether the Act of .180*) had been contravened ; and conlining himself to that consideration, he s;tw no C.iUj*3e open to him, but a committal. ' | Mr Smythies : Your Worship will takebail I Mr Maeaasey quite admitted the proposition that this was a trial, of right: atid, being ho, he asked that the Magistrate would be content with Mr Bmyiineii'a personal recognisances for appearance. i The Magistrate assented ; mid there was a committal of the defendant for < trial at the sitting of the Supremo Court, i