THE WAYS OF THE INFORMER.

New Zealand Illustrated Sporting & Dramatic Review, Volume XVI, Issue 914, 12 September 1907, Page 21

THE WAYS OF THE INFORMER.

To the “Southland Times” we are indebted for the particulars of an appeal case against a . sly grog conviction. Comment is superfluous, the damning evidence being sufficient to show up one of the most dangerous and despicable phases of prohibition. The case before His Honor Mr. Justice Williams in the , Invercargill Supreme Court was that of Frank Coutts v. Constable Powell, an appeal from a conviction recorded by the Stipendiary Magistrate aga'nst appellant in connection with a sly grog prosecution levelled against him for the sale of liquor in the Awarua district. Mr.- Neave (of Gore) represented appellant, and Mr. T. M. Macdonald appeared for respondent. Mr. Macdonald set forth the facts. Appellant was manager of a beer depot in the Awarua district, in which was stored from time to time beer brewed by his principals, Whittingham and Co. The depot was established on the other side of the boundary between the Awarua licensing district and the Invercargill nolicense district. Appellant was entitled to sell beer in quantities of not less than two gallons. The evidence would be that he sold some liquor on the evening of Sunday, June 16, at his own house. The main point was whether there was a sale; the supply of the liquor would be admitted, but he understood it would be alleged to have been a gift. On the evening in question, John McClusky and J. H. Horsburgh went out to the Gladstone Boardinghouse, which was kept by Martin Campbell, and there they obtained whisky. They wanted beer and asked Campbell if he would go with them to obtain some. Before they left, McClusky changed a note. The three then went across the Waihopai R : ver to the residence of Coutts, into which they were admitted bv him. There were two demi-

johns of beer in the room to which they were admitted, and Coutts supplied them with a round of k’quor, for which McClusky paid. They had tour or five more drinks, for which McClusky paid. Horsburgh had got liquor from Coutts on previous occasions. ■ Mr. Neave recorded an objection to the admission of this in evidence. John McClusky gave evidence on the lines of counsel’s opening. Cross-examined by Mr. Neave: He had served five years for a sexual offence committed in Dunedin fifteen years ago, as well as five years for a similar offence committed in Oamaru just prior to his coming to Invercargill. A letter produced was in writing very like his hand writing. (This letter purported to have been written to Coutts, asking him to help witness to get away, as he did not wish to give evidence in the case. He remembered that someone got him to sign some document when he was drunk, promising to get him out of the case. John H. Horsburgh was then called and gave similar evidence in chief. Mr. Macdonald examined in the direction of showing system. Mr. Neave objected to the admission of any of this sort of evidence. His Honor said that he did not clearly see that it should be admitted. He would bear the point in mind. Mr. Macdonald adopted the same tac-

tics in regard to other transactions. Mr.' Neave: I object to that being asked. Mr. Macdonald contended that it was

admissible in a case of this sort to show intention, design or system. His Honor: There is nothing in the charge aga'nst accused to lead him to

expect that he would be asked to answer a charge of selling liquor on another day. Mr. Macdonald: The evidence was admitted in the Court below, that would prepare him. Mr Neave: That is what I complain of. Witness (cross-examined) admitted that cheques produced on the Bank of New Zealand in Balclutha and Invercargill were signed by him. He must have been drunk at the time, because he never had anything to do with cheques. Mr. Neave: Did you obtain goods by means of certain representations. Mr. Macdonald: I presume he is not bound to answer these questions —if they incriminate him. Mr. Neave: Did you represent that you had money coming to you from some particular source? Witness: Yes! And that was false ?—Orders from me on my old employer have been honoured before. Did you go up North with a young girl ?—I had a holiday up North. She cohabited with you ?— Y es. You seduced that girl . . . and then left her ?—I did not; I correspond with her still; I am paying for the child. She is as respectable a girl as there is, and in a respectable situation. Constable Scandrett gave evidence identical with what he deposed in the Court below. Detective Cameron and Constable Powell gave similar evidence. Mr. Neave said that His Honor had on more than one previous occas on mentioned in Court that unless a case of appeal was presented in a different manner from that in which it was presented before the Magistrate, he would be very reluctant to reverse the decision, except on very good ground. This present case, as now presented, was essentially different. The Magistrate had adm'tted evidence to which he (counsel) had objected. To-day His Honor had refused to admit some of that evidence, which placed the case in a different light. There were many things admitted in the Lower Court which ought not to have been admitted, and his learned friend must have known it.

Mr. Macdonald: I was not present at the hearing of the case before the Magistrate. His Honor: Do you suggest, Mr. Macdonald, that evidence of something that took place in March is evidence on a charge of selling liquor on June 18. Mr. Macdonald did not suggest that. A’-l he wanted was to meet the possible defence, to prove that when Horsburgh and McClusky got liquor they paid for it. He did not suggest that previous acts done by the accused in regard to liquor were admissible as evidence of guilt in this case. He had merely wanted to show a system. His Honor: The witness answered that sometimes he paid for it. You do not want any more evidence? Mr. Macdonald : I cannot get any more evidence, even if your Honor had decided with me on the point of its admissibility. His Honor: I understand Mr. Neave’s object. He wishes to show that by the Magistrate admitting the evidence referred to he was taking an erronoeus view of the case in consequence of its admission. There is a point in what Mr. Neave says. It has slight bearing on the case.

Mr. Macdonald : Reading the Magistrate’s notes, it appears to me that the Magistrate admitted the evidence on the ground that it showed system, and he admitted the whole of the evidence. on that ground I presume. He also admitted the evidence in the intimidation case. Mr N.eave further outlined his case. He contended that the facts he had educed in cross-exanrination shtook the cred bility of the witnesses, and that evidence had been admitted by the Magistrate, which might have affected the decision he had arrived at. Courts and Campbell gave evidence that no sale took place.—Cross-examined, the latter said that he did not see whether any money passed or not. In giving judgment His Honor said : S’nce this came before the Magistrate rhe complexion of it has very much altered. Facts have come to light which, in my • opinion, completely discredit the principal witnesses. I am satisfied from the letters and from the telegrams produced that there was a deliberate attempt on the part of McClusky to obtain money from Coutts In order that he might be induced to suppress his (McClusky’s) evidence. That was not before the Magistrate. When a person is accused of a crime and the principal witness attempts to obtain money from him '.n that way no judge and no jury would be justified in giv ng the smallest credit to the evidence of that witness. Not only does this affect the credit of the principal witness, but it casts grave doubts on the whole story. In such a case in order to convict, an accused person, the facts deposed to by such a witness should be consistent and established clearly and satisfactorily by independent evidence. Now, in the first place, the facts are not consistent. McClusky was positive that when he went to Coutts’ he had only £i. He spent there, according to his own statement, ios, and paid for five rounds of drinks. He gave also 2s 6d to Campbell to purchase an additional gallon of beer. That makes 12s 6d. Next day (Monday) he paid 5s to McGavin—a total of 17s 6d. He should have had, therefore, on Monday when arrested, if that statement be true, not more than 2s 6d. As a matter of fact he had Bs. I do not see how that can be reconciled with his statement that he paid while at Coutts’ ios for five rounds of drinks. There is, therefore, in addition to the discrediting of McClusky by the fact of his having attempted to obtain money from Coutts, the fact that his story Is not consistent with itself. The only evidence left, therefore, is that of Horsburgh. He did not appear to be a person of good credit. But all that he does is to confirm the statement of McClusky that for each drink McClusky passed over money. That, as I have already pointed out, is inconsistent with McClu’sky’s story of what money he had had, and what money was found on him. That is the evidence for the prosecution. Then there are Coutts and Campbel! for the defence. Both of these swear that no money was paid. Campbell says he saw none, and would have seen it if it had been paid. There is nothing in itself improbable in the evidence of Coutts. He was manager of a brewery depot. It was natural he should have beer in his house. It was the custom to give free drinks to customers of the brewery. McClusky was then a present customer, and Horsburgh had been a customer. There is nothing inherently improbable in the story.

Looking at the whole of the circumstances I am satisfied that as the case now comes before me there is sufficient doubt to justify me in allow'ng the appeal and quashing the conviction. Conviction quashed. His Honor added: I should have said also as to Horsburgh that we have this further fact: that he and McClusky were together under the supervision of the police, and therefore it would be quite natural to suppose that they talked the matter over, and that the story of the one would be the story of the other.