THE DUMMYISM INQUIRY.

Otago Witness, Issue 1682, 16 February 1884, Page 9

THE DUMMYISM INQUIRY.

THE SILVER PEAK CASES. The adjourned inquiry into alleged dummyism in the Silver Peak district was resumed at' the Land Board on Tuesday morning. Where were present— The Chief. Commissioner (Mr Slaitland) and Messrs Green, Clark, Stout, Duncan*, and Bradshaw. Mr B. C. Haggitt appeared to conduct the inquiry for the Board, and Mr Denniston appeared for Messrs Borthwick and Hertslet. . The following evidence was. taken :— ' James Ross, a settler at Moeraki, deposed that he recollected having a conversation at Tumai'with Mr Orbell, but he was utterly unable to remember when it was, Mr Orbell asked him if he would be a bidder at the sale, and he replied in the affirmative. Mr Orbell asked him his limit, but he did not tell him. He (witness) then asked Mr Orbell bis limit, but- he was not told it. Mr Orbell then said that if he got the .land under 25s an acre he would give him (witness) £100. Witness replied that neither of them would get the laud for that. Mr Orbell then said that if it went above that he (witness) could bid. Witness was unable to say what land Mr Orbell was referring to. Mr Orbell said that if witness was afraid of- the money he would place it in the 'hands of Mr Buckland. Witness replied that Mr Orbell need not be afraid of him (Ross) bidding, as the land would not' go for that. Witness noyer got the £100. It was never intended that he should gefc it, and he had no idea of ever receiving it. , This closed the evidence. 'Mr Denniston said at the previous inquiry in this case he had contented himself with submitting very shortly what he considered to ■ be the actual object and meaning of the statute, since he was satisfied that to anyone not irrevocably committed to a foregone conclusion'the evidence would altogether fail tj prove that there had been an evasion of the Acti or that there was any ground whatever for forfeiting the licenses of his clients.- That '; opinion bad been so far correct that _f our out of "the six members of the ' Board* had been satisfied that there was no evasion" of the Land Act in spirit. ' [ Mr Stout : I never heard of it/ ' T did not hear four so express themselves. ' Mr Denniston said he would indicate the grounds he had for that conclusion. Three of the members of. the Board decided absolutely infavour of his clients, and ore (Mr Bradshaw) admitted that be would have voted with them but for a highly technical and literal interpretation of one word in the Act. Mr Bradshaw would not have voted for the cancellation of the licenses liad, he not been convinced by the highly technical arguments concerning the difference between agistment and depabturing. That beingr ,so, he, (the learned counsel) was justified in concluding that but for that legal distinction. Mr Bradfchaw would have been convinced, that there had been no evasion of the Act, and that he was satisfied that none of the other clauses of tho. Act had been violated. Mr Stout sajd he did not wi^h to interrupt, but he would put it to Mr Denniston whether at a rehearing the last decision should bo commented upon. Mr Denniston submitted that at a new trial, if one of, the judges had given a written judg-' ment .there would be nothing irregular in referring to it, Mr Stout : I have no objection. ,Mr Bradshaw : And I have not the slightest objection. . Mr Denniston said that the case was importanti and its circumstances very peculiar. Three out of six members of the Board, at the last inquiry, were satisfied that his clients had not been guilty of any evasion either of the letter or the spirit of the Act, and but for a highly literal and technical construction of one section of the_ Act they would have had a definite majority on that occasion, and then much of the criticism of the action of the Board would Have been avoided. If the public had seen that, out of a Board constituted as the Land Board was, four members were convinced that there had been no evasion of the spirit of the Act, then the criticism to which they had been /exposed would have been regarded as unnecessary. The present inquiry had been brought about by a simple misunderstanding, and he had no hesitatibn in saying that in any court an error of that sort would have been rectified simply .by re-voting— that the parties would not have been put to the expense and risk of another inquiry. An elaborate judgment had been pronounced by one member of the Board, and there had also been a large amount of public criticism and abuse in connection with these cases. They actually had it in evidence that an attempt had been made to bring political influence to bear upon one member for the purpose of causing him to alter his judicial opinion. That showed very plainly the hardship of the inquiry being reopened, except upon the terms which he (the learned counsel) had suggested. Into that question, however, he need not enter further, beyond mentioning one very extraordinary proposition. It had actually been suggested by one of the papers that the Board should be satisfied with a prima facie case, because it was always open to the parties to appeal to the Supreme Court. He was quite fiure that such an immoral suggestion would: pot be recqjved by the Board, but he mentioned

it to 6how the extent to which public feeling had been imported into the matter. The Board must be satisfied affirmatively that grounds existed for forfeiting the licenses, and he ventured to ask the Board to approach the subject in a judicial frame of mind. One momber of the Board (Mr Stout) had said on a previous occasion that the Board were, unfortunately, both prosecutors and judges. That was true, but he (Mr Donniston) would submit that it was not necessary on that account that the Board should all through the inquiry maintain the role of prosecutors, especially while there was counsel present. While the Board were prosecutors in having to initiate proceedings, the members should cease to be prosecutors when they became judges, and it would be a great misfortune and a groat mistake if the role of prosecutor were continued in the discussion of the case when the members wore sitting to adjudicate upon it. The' Act might or might not be retrospective, but the Board were sitting on the assumption that it was retrospective. Mr Greeu : I do not think so. I think we are sitting in virtue of a declaratory Act. Mr Deuniston ventured to think it was not a declaratory Act, but on the point of law would not trouble the Board. At present he was bound to assume the Act was retrospective, aud he contended that it was grossly unjust, inasmuch as it made that penal which was never suggested as being penal before the Act was passed. He asked the Board to look upon the Act as one that -was not to be interpreted rigidly and harshly, and he maintained that it should not be treated as being very loose when questions of procedure were considered, aud very rigid and accurate and literal when it became a question of interpreting the Act against his clients. The Act should be interpreted, he submitted, liberally and fairly, the Board remembering that they were sitting to judge what was done before the Act was thought of, and that the cases should be dealt with from a commonsense point of view, and not with the aid of wire-drawn subtleties which could be suggested by the ingenuity of counsel. The Act was really passed for the purpose of preventing dummyisrn, and was not iutendod to apply to transactions which the Board believed to be bona fide and fair, aud which might subsequently havo been made penal — accidentally hp might say. He submitted that if the Board decided that they could honestly say, in the words of Mr Stout, that there had been in the^e cases a deliberately-planned attempt to evade the provisions of the Act, then the decision should be against his clients, but not otherwise. Could there be any suggestion that the transactions of his clients were not bona fide at the -time they were made ? It was not the case of parties acting on the assumption that certain things could be done within the Act : these cases revealed an entirely differont state of things, and it was not for him to discuss whether the proceedings referred to were fair or otherwise. Could the Court be lieva that Messrs Hertslnt and Borthwick had no interest in the land whatever, and that the whole affair was collusive and evasive ? It was only reasonable that men should prefer as neighbours tried fiiends and relations, and quite natural that they should endeavour to help them ; but such assistance could not fairly be regarded as evidence of dummyism. Then the direct evidence against dummyism was, he submitted, in these cases conclusive. If the Board found against his clients they would find against the evidence of three men who had given their evidence clearly and well, and who had stood, not only the examination of Mr Haggitt, but a most rigid crossexamination by Mr Stout ; and they would find that the three witnesses referred to had deliberately committed perjury. It was difficult to characterise a good deal of the evidence which had been brought forward. As a sample, he would mention the skeleton deed. " He could not say who produced the document, but a reference to it was sufficient to show its absurdity. The terra mentioned in it was a term of 10 years, while, as they all knew, tbeterm of these licenses was not 10 but 15 years. Mr Stout : Do not you know that they can purchase at the end of 10 years ? Mr Denniston admitted that the land might be purchased at the end of 10 years, but submitted that the* recital clearly showed that the document must have referred to rural land and not to pastoral land. The most positive evidence had been given against the suggestion that there had been dummyism, and that evidence had not been shaken, though the witnesses had been subjected to the most severe cross-examination he could remember, and a cross-examination, too, that had not' 'Jocen limited by the ordinary rules of evidence. No additional evidence that could tell against bis clients had been adduced, and the whole evidence had been strictly and absolutely in favour of the view of the transactions of his clients being bona fide. If the onus lay on bin clients to prove that their transactions had been bona fide, he would, on the evidence befdre tho Board, submit that they had triumphantly succeeded ; and he could therefore, with the greatest confidence, submit that there was no evidence to justify the Board in forfeiting the licenses. Sn On the motion of Mr Clark it was resolved — " That the evidence taken at the rehearing be printed before the Board come to a decision on the matter." Mr Stout mentioned that he did not vote on this motion, as he did not require the ovidonce printed, having taken sufficient notes and being able to rely on his memory. As other members of the Board, however, desired to have the evidence printed, he had not opposed the motion. The Board was then adjourned until Wednesday, the 20th inst.