RESIDENT MAGISTRATE'S COURT.

Southland Times, Issue 1035, 9 October 1868, Page 3

RESIDENT MAGISTRATE'S COURT.

WEDNESDAY, OCTOBER 7th, 1868. , (Before Henry M'Culloch, Esq., R.M., A. J. ' Elles, Esq., R.M., and F. Gutter, Esq., J.P.) CONSPIRACY TO DEFRAUD. Abmstecwtg (Deputy SupEBiMTENDEifT) v. Aylmeb, Sayebs <fc Anotheb. - Alexander Sayers and "W". H. Aylmer relieved their bail in answer to this . charge. . .• VMr Harvey, who appeared to conduct the prosecution, applied to have the accused, who were undefended, accommodated with writing materials, and seats at the table usually occupied by counsel. The defendant Sayers wished to hand ; to the Bench a written protest against alleged injustice suffered by him through ' his having been refused subpoenas for '„],w itnesses for his defence, before the case .for the prosecution was heard. The Bench declined to receive the protest, Mr M'Culloch explaining that ; Sayers had, the day before, applied for subpeenas for 20 persons, free of charge, that it would have been an injustice to those persona to compel their attendance t &t Court for probably a whole day, as the prosecution must take precedence, and that defendant's case was not at all prejudiced or affected by the refusal. Mr Harvey said the case had been brought on thus early at the request of Sayera himself. His (Mr Harvey's) own wish was to have had the case remanded eight days at first, which would probably have allowed time for M'Kenzie's (the other party accused) appearance also. ' He would also state on behalf of the Government, that while, they felt ..this prosecution to be a most painful .duty, they were determined, in the interests of justice, to carry it on without fear or favor. At the same time, that the accused might be placed at no disadvantage, the G-overnment were willing to pay the expense of witnesses summoned on their behalf. Mr Sayers — I wished the case brought on because prepared, had I been "allowed to obtain witnesses, to prove my innocence at once, and therefore cannot . :■ isee why I should *be kept under surveillance for eight or ten days if I can clear i T myself in one. V , Mr MACulloch thought it might be tj, injudicious to open the case were it likely •; that M'Kenzie would be here soon, as on ?•"■ his arrival it would have to be all gone *;; over again. The accused, however, need "^ be under no apprehension, as every care , h should be taken to enable them to obtain all possible evidence in their favor. o: Mr Aylmer did not care whether the - --^iße^was-gone on with in eight days or 1 eight 'minuter . ; ;'

5 After some-discussion it l was arranged l to proceed with the case until sufficient > evidence had been adduced to warrant the i Bench m granting a further remand.i Mr Han ej, in opening the case, said he ■ felt himself in a most painful position, ) and could not but regret that it hai F 'fallen to his lot to conduct a prosecution F against two gentlemen with whom he was s well acquainted,- and had been in the t habit lor a long time of meeting fre- > quently on matters of business. It was > due to the Government to say that from the first they had shown no reluctance ■ to take such steps as necessary to bring the guilty parties to justice. They had calmly and dispassionately instituted the necessary investigation, and would not be driven from their proper course by any consideration whatever, either 1 political or social. They felt that gross injustice had been done both to the coutractors and the public, and they were determined that strict justice should be awarded without regarding on whom the consequences might fall. According to his instructions — which were to prosecute if necessary — he had so far done his duty, and he would faithfully continue doing so to the end, however hurtfull it might be to his own feelings. He trusted that all witnesses would do the same. The accused were charged with conspiracy to defraud. That crime was denned as an agreement between certain persons to do something whereby some third person, or body of men, might be injured, defrauded, or suffer prejudice. The particular misdemeanour charged against the accused, the serruptious opening of certain railway tenders was clearly one involving injury to other parties. He would now proceed to call witnesses, and requested the Bench to intimate when satisfied that sufficient evidence had been shown to warrant a remand. Mr M'Culloch thought Mr Harvey should state the course he intended to pursue. Mr Harvey intended doing so but had waited until witnesses had left the court, witnesses were accordingly ordered out. Mr M'Culloch, — I presume you intend first to prove a conspiracy between the parties. Mr Harvey said it was seldom possible to procure direct evidence of conspiracy, they had always to depend on surrounding circumstances and certain detached facts, which together formed a perfectly conclusive chain of evidence. Of course he would have to lead evidence which might affect M'Keuzie, which would have to be all gone over again on ' his arrival — and this showed the difficulty of proceeding with the case that day. He then called — Henry Armstrong, sworn, deposed — I am Deputy Superintendent of Southland. Know Mr Aylmer. He was clerk to Superintendent. In that capacity he had generally charge of tenders. The tenders for finishing Oreti Kail way were received by him. It was my intention .to have put them in a box in my own room. I had some conversation with Mr Aylmer abouttheir custody when they were coming in. I said I wished the tenders to come into my room, to be placed in a box there. He said he had always been in the habit of receiving them, that it was a very disagreeable thing to have to do with tenders, people were already beginning to talk about it. I said very well, as you have been accustomed to take charge of them, do so on this occasion. Mr M'Clure was present. He is a member of the Executive. He ) (Aylmer) received the tenders, and placed them in a box, according to instructions. I do not know that he actually placed them in the box, but he bought a box for that purpose. I never saw the tenders till the box was opened v on Thursday night. On Wednesday night I saw the box supposed to contain the tenders laid on the Council table. It was afterwards taken away. On Thursday night, Ist October, in consequence of certain information, I went to the police station, and, afterwards, in company with Mr Blacklock, I went to Mr Aylmer's house. It was about half-past ten o'clock. I saw Mr Aylmer, and asked him for the keys of the box and safe. He gave the keys at once. He said he was very glad I would take charge of them. Mr M'Culloch — I wish some proof of conspiracy may be given as soon as possible. We are hearing conversations which may Mr Harvey — I must object emphatically to such interference with my manner of conducting the case. If the Bench persist in it, I must throw the case up. Mr M'Culloch — I insist on saying that Aylmer's statements to witness may be used against the defendant Sayers, and they have not yet been connected. Mr Harvey — Of course they may. Mr M'Culloch — I have heard the law laid down by a learned judge, in this room, that some evidence of conspiracy must be produced before any admissions of the parties accused can be received in evidence. Mr Harvey — I beg most respectfully to differ from that view. Mr M'Culloch — I have it here. Mr Harvey — Might I ask you to read it. Mr M'Culloch — Heading from a decision of a judge of Supreme Court, in a case tried in Invercargill. " Some evidence of conspiracy must be produced before the admissions of one of the accused can be received in evidence against another." Mr Harvey — Ah ! I admit your ruling would be correct were I tendering evidence of admissions of Aylmer criminating Sayers, bu£ I have not done so. Mr M'Culloch — We don't know how soon there may be, and it seems to me so easy to prove the conspiracy firat, and to a certain extent, accused, being undefended, are under the protection of the , Bench. Mr Harvey — That's the very reason I was so anxious to have the case deferred, to allow them to obtain counsel, whose presence would relieve me from the restraint I am under, lest I should do

them an injustice 1 ; If ttiey are agreeable, ; I should prefer even now, to have the i evidence struck out, and the case postponed until they get coanseL , Mr Aylmer— lt is perfectly well known we cannot get counsel. Mr Harvey — You can — from Dnnedin. Mr M'Culloch — The accused are charged with conspiracy, not with the opening of the tenders. Mr Harvey —Direct evidence, as I have already said, of the original agreement in such cases can rarely be obtained. It has to be inferred from subsequent acts, and these I can prove. Mr M'Culloch— Will you please go on with the case. Examination resumed — I received the keys and went to the Government Buildings with Mr. Blacklock, Mr Basstian, Mr Steuart, Mr Weldon, and Mr Patterson -the Engineer. I had the keys, (produced.) I opened the safe, took the small box oufc, and found the tenders in it. I counted them, and looked at one or two. They appeared to have been tampered with, being much crumpled, discoloured, smeared with' gum, torn, and broken seals. The examination was rather hasty. We locked them up, bound the box with red tape, and sealed the ends. Cross-examined by Mr Sayers — There is a duplicate key to the safe. Mr Eogers had it. I don't know if there were any other duplicate keys. To Mr Aylmer — Yes, I have a duplicate to the outer door. To the Bench — The tenders have been in possession of the Grovernment since Thursday night. The tenders were put in at 12 o'clock on Wednesday. To Mr Aylmer — I can't answer whether they were all sent in on Wednesday. I don't think they were lying in the office for a week. James Colyer, sworn, deposed — I am proprietor of the Princess Hotel. I know both defendants. On Wednesday night, 30th September, they were both at my house. They came somewhere about 11 o'clock. They came together. Mr Aylmer asked for Mr Shearer. I said I thought he was in bed. Mr Shearer sleeps in my house. I went and called him, telling him Mr Aylmer wished to see him. Mr Shearer went into the bar parlor, and I showed Mr Aylmer in there. Mr Sayers was then in the bar. They remained a few minutes. Mr Aylmer then came out, joined Mr Sayers, and both left the house. I overheard nothing of what took place. Cross-examined by Mr Sayers — Don't know where you live, or Mr Aylmer either ; you were talking to me in the bar while Mr Aylmer was in with Mr Shearer. I don't know whether you overheard their conversation, I could'nt. I don't know anything about your generally going home with Mr Aylmer at night. Mr Aylmer didn't appear tipsy. To the Bench — Neither Mr Aylmer nor Mr Sayers are in the habit of frequenting my house. "James Shearer, sworn, deposed — I am one of the tenderers for the Winton line. Know both Mr Aylmer and Mr Sayers. Recollect Wednesday evening 30th Sept. Mr Colyer called me while undressing to go to bid, about half-past eleven. I went out to the bar parlor and saw Mr Aylmer only. We conversed a few minutes. He was under the influence of drink, and could not speak very well. He said, well " what about these tenders." I replied, "I don't know what you mean" He then said, well, " I've got the sack." I said, " I don't see what that has to do with the tenders." He further said he could get plenty of money to carry on works himself. The detendant, Sayers, here put the question to the Bench, whether the evidence was admisable as against him, and was informed that it was, he and the other defendant having now been brought together. Examination resumed — I advised him to go home and go to his bed, and not repeat what he had said to me to any one else. I did'nt want to have any further bother on the matter. I don't recollect anything further passing. I can't be positive that he said anything about the tenders further than what I have mentioned. His conversation was very disjointed. Cross-examined by Mr Sayers — I did'nt see you there. Your name was never mentioned. To the Bench — I scarcely think Aylmer knew himself what he was saying, being much under the influence of drink. Win. Moffett, sworn, deposed — I am a contractor, residing in Invercargill. I was a tenderer for the railway. Know Mr Sayer3. I saw him several times on the forenoon of Thursday, the East- day, Ist October. He asked me if I knew how the tenders were going. I replied I did'nt know. I had previously lent him a schedule of quantities, and he then wanted the loan of a copy again. These schedules are attached to the plans of the Oreti Kailway, for the use of the tenderers. I asked him what he wanted it for. He replied it did'nt matter much to me, he wanted it for a party. I whistled, and said it was queer he should want it then, after the tenders were all in. I don't think he said anything about my own tender. He remarked it did not matter much to me, and I might hold my tongue about it. The Bench here reprimanded the witness for giving his evidence reluctantly. Mr Harvey characterised his manner as shuffling. Witness repudiated any intention to suppress the truth, and defended himself by saying the conversation had been so irregular that he could with difficulty remember what had passed between Sayers and himself. Mr. Harvey announced the arrival of a telegram informing him of the arrest of M'Kenzie. Examination resumed — When Sergeant O'Keefe examined me I refused to give the name of the person, saying I was told to hold my tongue about it, and had promised to do so. He asked me if it

was Sayers, and I gaid, " don't ask me, I have promised to say nothing. about it." Cross- examined by Mr Sayers — It was between twelve and one o'clock when you were talking to me. It was at the time of the meeting of contractors with the Executive — I was, I think, standing at the Government Buildings waiting for the meeting. You told me when you first borrowed the schedule that you wanted to copy them, and sell them to the contractors. I don't know that you sold any. You offered to sell me some. When you asked me the second time I said "it was queer." I don't recollect your saying you were told to ask for them, that you were merely a commission agent in the matter. You may have said "it did not matter to me," meaning yourself, but I don't recollect you doin-; so. The conversation did'nt last more than five minutes. There are eight or : nine pages in the schedule for the Inrer--1 cargill contract, and sixteen in the Winton one. They are closely written, and there is a great deal of ruling. I think they could be written out in less than a day — four or five hours. I could make the calculations and fill them in, if I had a copy, in three or four houru. I don't know that you are interested directly or indirectly in any contract. I know you to be a commission agent. Win. Birch, head-waiter at the Club Hotel, deposed — I know Mr M'Kenzie, Sayers, and Aylmer. M'Kenzie stayed at the Club, he had one bedroom, and the use of a sitting room. I have not seen M'Kenzie in Ayliner's company much. I have seen him in Sayers' company. Eecollect "Wednesday 30fch. Saw M'Kenzie at the Club that evening. Do'nt recollect seeing Sayer3. Did not see these three parties together that night. Mr M'Kenzie asked for Aylmer about a quarter to 12. Mr Aylmer was coming down from the direction of the post office, I pointed him out to M'Kenzie and he went to meet him. M'Kenzie did not return to the Hotel till next morning to breakfast. I cannot recollect if any one was with him. Mr Sayers was with M'Kenzie in his private room on Thursday afternoon. It might have been from 3to 5 o'clock. The door was secured inside. I was in with drinks twice. M'Kenzie I think opened the door. He secured the door at least once when I left. There were papers like accounts on the table, and writing materials were also there. They were in a good long time, 2 or 3 hours. Cross-examined by Mr Sayers — It is not unusual to see you about the Club with gentlemen visiting the town, from Melbourne or elsewhere. I have never seen you, M'Kenzie, and Aylmer, locked in together. Win. Lambert : sworn, deposed — I am employed by Mr Ludlam to drive an express. I recollect last Wednesday night. I took Mr Aylmer and Mr M'Kenzie home about a quarter to 12, to Mr Aylmer's house. M'Kenzie told me when we got there, to wait a few minutes. M'Kenzie turned back as he was going into the house and told me to come over in the. morning, not later than eight o'clock. I went over on Thursday morning, but Mr M'Kenzie was away. Mr Sayers came back with me. He told me Mr M'Kenzie had gone away early, and Mr Aylmer had gone after him. Mr Sayers said he was to have gone home with Mr M'Kenzie and Mr Aylmer the previous night, but he couldnt wait. Cross-examined by Mr Sayers — You asked me to take a gun down town and leave it at Mr Hume's for Mr Aylmer. You then said if I waited till you washed your face you would go with me. Your house is about 70 or 80 yards from Mr Aylmer's. To the Bench — There was nothing in the machine with M'Kenzie and Aylmer on Wednesday night. A. J. Smyth, Auctioneer, deposed I was not a tenderer for the Oreti Kailway. I know James M'Kenzie the contractor. On Thursday night Ist Oct, I had a conversation with him, betwoen 10 and 12 at night. A number of the contractors had met at the Prince of Wales, some angry words passed between M'Kenzie and Proudfoot. We tried to keep it quiet. Mr Proudfoot left, and I said to M'Kenzie, you have got some information about the tenders, what are they? He called out some figures to me which I took down on a piece of blotting paper, and afterwards copied on to a piece of paper, (produced). The figures were the amount of different tenders. I said, old man, you have made a fool of yourself, you are found out, the Government have taken possession of the box. He jumped on the floor, and dashed his pocket book down on the ground. The book contained papers &c, one appeared a large letter like a tender would be. I then left. To the Bench — The names are not on the paper produced, they were on the blotting paper. I and several of the contractors were on the watch. We went on different tracks, and I succeeded in making the discovery we wanted. Cross-examined by Sayers. It was an ordinary sized pocket book M'Kenzie threw on the floor. I don't know the size of the schedules of quantities. I know about the size of the sheet, but not the number of sheets. Two or more sheets might have- been in the envelope that I saw. I don't know whether 15 sheets might have beenin it. I have seen you with Mr M'Kenzie and Mr Aylmer. In an express waggon, in front of the Club about half-past nine on Thursday night, Mr M'Kenzie was standing at the side of the waggon, you invited him to get into it, and he would 'nt. I did not know ..then that the tenders had been tampered with, not for a few minutes after that. I don't know whether you are concerned in any contract. I had no interest in any contract further than selling my plant to the successful tenderer. On Thursday I did attend a meeting of the contractors at the Prince of Wales Hotel. I knew no one but contractors were to attend, but I attended at their request, to take the chair, bo that each might be allowed to speak.

I swear I have made no use of the information gained from M'Kenzie for my own gain. I have not won money by betting on it. I did bet with Proudfoot, but won no money on it. j Mr M'CuUocfc— l can't see the import of these questions. - Mr Sayers— l wish to show that witness made a gain through the information he received from M'Kenzie, not from me. Mr M'Culloch— Even admitting that "he gained money by it, I can't see that that would affect tbt3 witnesses credibility. ' ' '«, Mr Smyth— l will explain, your Worships, if you will allow me. "We were at the Bluff on Friday morning, and I said something to him (Proudfoot) about the amount of his tender. He bet me, I did'nt know, and staked £5. I said I tell you I am betting on a certainty and can't take your money." I showed him the figures, he was astounded, and put his money in his pocket. The Bench here intimated that they were satisfied that sufficient grounds had been shown to justify a remand being granted. "Whereupon Mr Harvey applied for one for eight days, till the 15th inst., intimating that as no steamer was due for sometime he would probably hare to apply for a further remand, pending the arrival of M'Kenzie. Both defendants entered -into fresh recognizances for the same amounts as before, as did also their respective SUrefr.iaa.