A Judicial Puzzle.

South Canterbury Times, Issue 5014, 23 May 1889, Page 2

A Judicial Puzzle.

(Melbourne Telegraph)

Perhaps the most fortunate, and possibly the most bewildered, individual in the colony just now is Mr Stephen Cutler, who has occupied so largely both public attention ’and the attention of her Majesty’s judges during the last few months. Cutler has been tried once for murder and twice for perjury during the last few weeks 5 on the charge of murder he was acquitted, and jit is, of course, only known to Mr Stephen Cutler himself in what degree he deserved that piece of good fortune. Cutler's acquittal on the capital charge was secured by the exertions of a long procession of witnesses, thirteen in all, who swore in one solid platoon that Cutler was not in Market lane on the evening when the unfortunate Chinaman was kicked to death. Thirteen oaths seem sufficient to prove an alibi, and Cutler marched from the dock a free man. But the police believed that the evidence which saved Cutler represented a huge conspiracy to commit pesjury, and the loud-swearing thirteen are making their appearance in instalments in the dock instead of the witnessbox to answer that charge. The first five were promptly found guilty by as many juries, and received the terrible sentence of nice years’ imprisonment each. The stem language which Mr Justice Williams employed is still within the memory of the public. “I do not hesitate to say,” His Honour declared, "that a more huge or more elaborate conspiracy to commit perjury has ever been unearthed in this court. The * Winter ’ perjury cases, as they were called, bad as they were, neither for skilful elaboration, ingenious adaptation, corroborative and harmonious strength, nor os regards the number engaged, approach the perjury of which you five men have been found guilty. The severest penalty," His Honour held, “was 1 necessary to suppress perjury, a crime which may not only imperil life, liberty, the right of property, and the well-being of society, bat which may paralyse the administration of the law.”

It is perfectly clear sailing up to this point. The men who, to rescue their “ pal" from the gallows, had elaborated a huge scheme of perjury were properly overtaken by judicial penalty. Their false oaths, however, had succeeded, and Cutler, having been acquitted on the charge of murder, could not be retried. Cutler, however, on the principle that one good turn deserves another, had gone into the witness-box when bis hardswearing mates were being tried, and added his oath to theirs. If they were perjurers, it was plain so was he; and public opinion, shocked at what seemed to be the undeserved escape of a murderer, welcomed with satisfaction the prospect that, at all events, the criminal would be punished as a perjurer. But here comes the circumstances which may well bewilder the public understanding. Five distinct juries, having exactly the same evidence submitted to them, were unanimous in finding that perjury had been committed j Cutler, Uie/ons et origo of the whole trouble, has been tried by two juries successively who have had before them the same evidence on which the previous juries had decided. One of the juries before whom Cutler was tried failed to agree ; the other brought in a verdict of acquittal! Here, then, is a state of things which may well set the public agape with mere amazement. Taking the bare recital of the facts, ninety-nine persons out of a hundred would declare, without any hesitation, that there had been a gross failure of justice. The question of fact to be decided is whether Cutler was in Market Lane at the time of the murder. Five juries, on the evidence submitted to them, unhesitatingly declared “ yes in the recent trial of Culler, fourteen witnesses were produced against him, and, to quote from the charge of the Chief Justice, “all positively, from their personal observation, swore that the prisoner was in Market Lane that day. They spoke from various standpoints, and they observed from different points; but they all united iin this—that tbe prisoner was in Market Lane, and taking an active part in what was going on in Market Lane that day." That the Chief Justice himself held the evidence to be conclusive is clear. “ His Honour thought that stronger evidence could not |be given that the prisoner was in Market lane than that which described the prisoner’s manner, which was such as to fix the attention of people in the locality upon him." Hero, then, on a question of fact, wo have the verdicts of five juries, the testimony of fourteen witnesses, and the declaration of the Chief Justice tint “stronger evidence could not be given ” than that which was advanced in this particular case, and yet Cutler was acquitted ! He is, wo repeat, a singularly fortunate individual. The fact of his acquielal, however, has to be accepted, and how does the whole case stand? The fourteen witnesses who gave evidence against Cutler are, by the verdict of the jury which acquitted him, themselves declared to be liars and perjurers! The five juries who had previously given a decision on the fact in debate are affirmed to be blunderers, who have sent innocent men to an undeserved doom. And if Cutler is acquitted as an innocent man, what is the position of his live allies who are just beginning their nine years’ sentence in Pentridge ? If these men are guilty—and five juries say they are—Cutler is not innocent. But another jury utterly rejects the theory of Cutler’s guilt, and acquits him as innocent j and if be be innocent ?o are the other fire.

The whole cases give new significance and edge to all familiar satire expended on our system of trial by jury. That *• palladium of British freedom ” is sadly shorn of public reverence, and as an instrument of justice is visibly an imperfect and clumsy thing. Wo are not concerned, however, to discuss the general merits of our boasted system of trial by jury ; the particular case before us is an intolerable scandal to common sense. If Cntler is not a criminal, then the five men in Fentridge are martyrs. They have told the truth, and told it to save their friend, and as a penalty they must spend nine years in gaol! We confess this theory is one which, in the light of all the evidence, seems wildly improbable } but it is the only possible theory on the supposition that the jury which acquitted Cutler was right. On any theory there has been an intolerable failure of justice. If the men in Fentridge are guilty, then so is Cutler. Way, he is guiltier than they, for their crime had as its inspiration a perverted sort of chivalry ; it was undertaken to rave their " pal,” But if Cutler is innocent then, we repeat, these men are martyrs, and the machinery of justice has been perverted to destroy the innocent, Whichever theory is taken the result is a scandal to our judicial system, and it seems impossible that the case can be left at its present stage. What does the AttorneyGeneral propose to do ?