THE HARPER CASE.

Star (Christchurch), Issue 5428, 2 December 1895, Page 3

THE HARPER CASE.

THE CRIMINAL PBOCEEDIK&2, THIS DAY. The criminal sittings of the Supreme Court were resumed before his Honor Mr 1 Justice Denniston and a special jury, at 1 11 a.m., to-day, when Leonard Harper , appeared to answer the charges of ; embezzlement preferred agaiUßt him by the Crown. Mr Skerretfe, with him Mr I Kippenberger, conducted the prosecution. Sir Eobert Stout, with him Mr Wilding, appeared for the accused. ■ There was not, at tho commencement of the proceedings, a large attendance of the public, the gallery being only about half full. „ A panel of forty had been provided from which to choose the special jury. Mr Skerritt said that, he proposed to take Miles' case first. The indictment contained eight counts. The first charged the accused that on Nov. 3, 1883, at Christchurch, being a trustee of the sum of J61751 for the use and benefit of Elizabeth Ellen Miles, William Miles, Ellen Miles and Eliza Hurst, he did unlawfully, with intent to defraud, convert and appropriate the same to and for his own use and benefit, or the use and benefit of persons other than the persona aforesaid, contrary to the provisions of Section 79 of the Larceny Act, 1867. The other counts all referred to the same offence. The Becond charged the accused with having converted the money to his own use ; the third with having converted it to the use of persons other than the beneficiaries, to wit, himself and others; the fourth with heving conver.ed it to the use of persons other than tbe beneficiaries; and the four other counts recapitulated the foregoing with the addition that the accused wa9 a trustee with one William Miles. 1 The accused pleaded not guilty. i. Mr Skerrett said . that, before the jury was empanelled, he had three substantive applications to make to the court. He submitted first, that there was no valid jury competent to try the accused, and that, therefore, the proceedings would be coram non judice. Secondly, he applied to his Honor to quash and set aside his Honor's order granting the Special Jury on the ground that the same had been made without jurisdiction. Thirdly, he challenged the array in the ordinary form in writing. He explained that he considered there should be a separate jury for each indictment. He referred to sections 85, 87, 89, 90; 102, 104, and 110 of the Juries Act, and said that if he was correct in his construction of the statute the practice of the Court in civil cases applied in criminal cases; the jury panel was put into the ballot box-, from j which were drawn the names of twelve , persona who were sworn as the jury; i the rest of the panel was then discharged, and had no further duties. That was the distinction between common and special juries, and the provisions were applicable to a special jury called for a criminal case. There was no provision in the Statute by which the names of special jurors not called were .to be kept apart and used again, nor any provision by which the jurors called and sworn from the special jury panel oan be returned to the ballot-box to form a new jury for the trial of other indictments. Sections 111 and 112 of the Act providing the procedure in regard to common juries, in criminal cases were not applicable to special jures. He would uubmit that the indictment in the case of Eegina v. Harper in re Miles was a separate and distinct indictment and prosecution 1 from the other indictments. They were, therefore, 1 on precisely the same footing as separate charges' against distinct individuals. ' ■• If this jury were rightly , drawn, then a special jury panel might be summoned to try several indictments against distinct persons. Hie. Honor said "that the mention of the person's name in the order was sufficient to exclude the suggestion that one special jury panel could, try all the cases at a session. ' , • Mr Skerrett said that the principle of the Act showed that these prosecutions must be separable. The Act contemplated that one of .the parties might obtain an order for the trial of a particular case before a special jury, and' the order for the trial was to ba made in that particular cause or prosecution, and the precept andsßummona for the jury were alao to be made out for that particular oauae or prosecution. As to the matter of construction of the Statute he referred to ex jparte Barclay in re Aiusworth, L.E. iii., Chan. Ap., p. 245, and ex part eßundvitt in re Cpwle, ibid, p. 26. He would submit that the effect of iiß Honor's decision, which he sought to have set aside, would be that one special jury would be allowed in civil eaßea to try all cases between the same parties. In order to enable his. Honor to get. jurisdiction here it would be necessary to read into the Jurieß Adt special statutory; provisions like those of the English Act 14 and - 15 Victoria, under which a special jury, panel . was summoned to try i*ll the special jury cases at the assize. With regard to the question as to whether, if the objection he was. taking were well founded, tue defect could be cured, he would submit that tho defect could not be cured; that his Honorhad ao authority to direct a jury to be empanelled, except the statutory "authority, bo that if it were not in accordance with that authority there was no power to compel the jurors to go into the box. Hia Honor's order waß nob a mere irregularity- If it were bad, what was bad in it was not separable from what was good. He (Mr Skerrett) was not pressing the objection ■ that the jury in Miles' indictment was not a proper one to try the indictments in the case, but that there should be a separate jury on each indictment. On . the point that under the circumstances here the cases would be cbrowi now judice he i cited Holt v. Meado'weroft IV.,' Maude and Selwyn 467, and- Bex v. Perry v.'Term Beport9 453. With regard to the challenge to the array he would submit that if the order and precept were void the sheriff was guilty. of misconduct in acting upon them. Another ground in support of this was: that the sheriff had not performed his duty to intitule the summons for a particular cause, and in not having returned a separate jury for each indictment. Sir Eobert Stout said that he did not take any objection as to time, which would only create further delay. It seemed very peculiar that though the order' had been made on Nov. 4 the objection had not been taken until now. It seemed almost as if it had now been made on account of some outside pressure. j Mr Skerrett said that this was not bo. Sir Eobert Stout said that it would make an absurdity of criminal proceedings if what the Crown contended were correct for all the special jurors in the district would have to be kept waiting about the Court to supply the panels for the separate juries on the several indiotments. He would point out that there was no need for eight ndictmentsin this case, for, under section 373 of the Criminal Code Act, 1893, a number of crimes, except murder, could be j oined in one indictment* He submitted that bo long as the person was named against whom the indictment ?was to be tried % one spacial jury was sufficient to try the issues. Section 85 of the Juries Act did not confine a special jury to one indictment only, as Mr Skerrett seemed to think, for ita words were '• any indictment." With regard to the objection to the array, the only grounds on which it could be eustained were, under Section 396, partiality, fraud or wilful misconduct on the part of the sheriff, Now, the only ground in Mr Skerrett's challenge which could stand we s the Becond ground, in which he gave reasonß. Those reasons, however, did not come within Section 396. Sir Eobert Stout referred again to 'the question of convenience, pointing out that if each count in the indictments in this case were taken aB a B epa*& t6 indictment, aa it could be, and a eeparate jury panel were required for each, it would necessitate the attendance of some hundredß of persons, and would put the accused to vast trouble and expense, at they would all have to be present, for i1 would not "be known in what order tb< indictments would be taken. Hetised thii reductio ad absurdum to illustrate the un * i BOundneßa o£ the contention that a separati

special jury panel wa3 required for each indictment. i Mr Skerrett, in reply, said that he waa ' not objecting to the trial of these indict- ! ments before n special jury, as he had i understood Sir Robert Stout had assumed. There was an obvious distinction in the question of convenience between a common and a special j ury. Acommon j ury was bound to sit only for six days. This special jury panel was bound to sit through all the indictments, whub could not possibly be dofle in a week. The difficulty of trying all the indictments before one special jury was obvious. Supposing one special jury wae, in this case, to disagree there would be only twonty-three jurors left from which to choose another case. j After some further discussion his Honor I said that it was a matter* of regret to him , that this question had not been raised ; earlier. As tbe matter now stood, he had { to decide offhand on a question which I I might, if a different view were subsequently j taken by a higher Court render the whole ! of these proceedings, in any. event, abor- ■ tive. As at present advised, however, he I was not satisfied that our Act required that . where there were several indictments ! against the same person to be heard at tbe { same sitting, it was necessary that a separate jury panel should be summoned ; for each. Under the English statute a j special jury panel was Bummoned to try all the special jury caßes at a particular ; ass'ze. Our Juries Act was somewhat j different, tinder Section 85, the only ! definite requirement as to specifying a ' particular matter was that the person against whom the indictment was to be tried shall be named in the order for the special jury. As at present advised, he! CDuld see nothing to prevent a special jury I panel being summoned to try any indictments at the one sitting against any named- person. It would be an obvious inconvenience, to say . nothing more*, that in such a case a special jury panel should be summoned for each indictment. In the present case there were eight indictments. Apart from the question of each count being taken as a separate indictment, having a special jury panel for each would mean bringing together, at the expense of the accused, a large number of persons, who would all have to be preient together, because there would be nothing to show which of the indictments would be taken first. An order for a special jury could be made, as it has been iv this matter, before any indictment bad been found. It was obviously impossible to say beforehand from the depositions wbat might be the form of the indictment, and it would be impossible to frame an order' which wonld cover the indictment, and if an attempt to do so were made, it might be found that the accused might come to the Court and find that the particular indictment specified in the order, had not been found, but that another had. He (his Honor) did noc think that he would be called upon to read apeoial provisions' into the Act. As at present advised, he thought that the order he had made was one which he could make, and therefore an order which ought to 'be made. He need, therefore^ Bay nothing as to the form of the challenge to the array. He thought, therefore, that he must refuse Mr Skerrett'a application. Mr Skerrett asked if his Honor wonld reserve the point. Sir Eobert Stout did not object, and his Honor reserved the point accordingly. The jury was then empanelled. Five jurymen were challenged by the accused, and.. eight ordered to etand aside by the Crown. ■'•'. i •'■.'■ i The jury: was constituted as follows :— Messrs James Trent (foreman), -W. H. Toomer, W. H. Clark, H.S. Hobday, G.H. M'Haffey> M. O'Brien, J. Dillaway, G. H. Wright, S. Hi Willis, Alex. Ferguson,' George Payling and Thomas Wreaks. On the Court resuming at two o'clock, Mr Skerrett opened for the prosecution. In the course of an hour's speeoh he dealt fully with the accused's connection with Miles' trust, 1 and also with the methods of the firm of Harper and Co. The following evidence was called for the prosecution :— William Miles, farmer, Fendalton, deposed he waa one of tho trustees under the i marriage settlement of his lata father. He recognised the deed of settlement (produced) and also the deed appointing him one of the trustees under it. The trust fund was held by the trustees in England* His father had died ia 1882. ■ Witness had a conversation with accused -shortly afterwards, in which his father's affairs were discussed. Accused had promised to take the necessary steps to obtain the trust money, from England. Some time afterwards Messrs Harper and Co., advised him that the money had arrived in the colony. Witneßß was afterwards informed by Mr L. Harper that the money had been lent to Mr H. Packer at 8 per cent on good security. Accused did not say what the security was. Witness took no steps to verify the statement, because he knew that Mr Packer was reputed to be a wealthy man, and he took Mr Harper's statement that the investment waa a desirable one. Accounts of interest came to hand half-yearly. About the end of 1887, or beginning of 1888, witness was informed by Mr Parkerson, the manager of the financial .department of Harper and Co., that the money had been paid in on deposit to Harper and Co. Witness asked how the money was secured, and Mr Parkerson said .that it was on what, witness thought, he termed floating securities passing through the office. Witness asked for particulars of the security, and Mr Parkerson did not give particulars, but witness left under the impression that the money was well secured. The interest was then 6 per cent. Witness' mother was entitled to the interest under the settlement in December, 1892. Until that date witness was under the impression that the money was scoured. In the beginning of January. witneßß went to see Mr George Harper about his mother's affairs, and was then informed of the position of the firm. Never heard of the money' being invested with Packer, Harper and Co. Witness became a creditor of the firm in 1893, and had received a dividend of £56, equal to seven and eleven«six< teenths pence in the jS. [Left Sitting.]