RE-TRIAL OF YOUNG.

Dominion, Volume 7, Issue 2150, 16 May 1914, Page 6

RE-TRIAL OF YOUNG.

CETllTirmiO ODFETIJ fcHDulUla orfctln. THE JURY FIND HIM GUILTY. RIGHT TO APPEAL. The retrial of Wm. Thomas Young was set down for hearing at tho. Supremo Court yestorday niorumg beforo , His Honour , Mr. Justice Hosking. Tho charge was that Young."had■ uttered certain seditious words, to wit: — . "I want to say'that special conBtables are- being called for: a number of thorn were marched to the Nowtown depot Inst night. I want to say this, that if tho Police Force of this country aro going ;to bo utilised—l .. know tho individual police don't want to be used for tho purpose—but if tho authorities of this country are going to use them to suppress-tho working class, I will undertake —wo will undertako —to mass in this city of Wellington 10,000 or 1(5,000 armed nion, "ready to protect thomselves as, armedl men. .... If wo havo got to fight tho Police- Force and the military, it has got to be dono in style and effectually. It is a very easy matter indeed. Thero aro ten or fifteen thousand men in support of you, and to protect you against tho 'baton of the polico authorities. If the employers <tre not prepared to act in a conciliatory spirit, and if they put on 'scabs' to work cargo, thero will not 1 ho a ship leaving this port, and if needs be there- will not be a. wharf for 'scabs' to work on. . Don't you bq afraid of them. If I havo got to incite the multitude, I will incite.them, and in a proper manner," or words' to the like effect. . ■■' . . . ■ . Mr. H. H. Ostler prosecuted for th© Orown, and Mr. T. M.. Wilford, with Mr. P. J. O'Regan, appeared for the accused. : , -.- .. . Should Accused Plea? :

When the charge was"read,' Mr..Wilford -said that'tho point was not clear whether n, plea should-bo put in.'. He desired to contend,- in- the interests;-of the accused, under Section 402 of, tlio Grimes Act (Sub-section' 4), that accused had been lawfully convicted of tho crime charged in tlio 'ndictment, ■ and ho was not entitled to bo charged by tyie Court at all. .Tho plea was a plea of "formerly convicted," and ho proposed to ask tho Registrar to.formally put in the information on which lie was. charged and convicted in tho Lower Court for inciting. He also proposed to call Mr. W. G. Riddell, S.M., to prove that the wholo of the evidence in.the case was the evidence called in the Magistrate's Court. The evidence would really be less in the present case,-because the indictment had been amonded since the Grand Jury found a true bill, by tho striking out of certain words relied on in tho Lower Court.

1 Proceeding, Mr. Wilford said that the finding of the Court of Appeal in Holland's case in no way affected the present case. Holland was acquitted on one charge, and had not been indicted on the other charge. There were also two speeches. Young's case was, therefore, totally different, and the plea of "formerly acqilitted," and "formerly convicted" wore "different. The plea of "formerly convicted" was noted in the case re Simpson, referred to tho Court of Appeal by the Chief Justice, to tlio effect that a man could not be put in peril twice for the same offence.

His Honour: Should you not nut in your plea of "formerly convicted" ? Mr. Wilford: Supposing I should say no? Ido not admit it because we do not invoke tho penal clause of Section 403 of tho Crimes Act. His Honour: You can plea ovor if the issue is found against you. Position Never Settled. Mr. Wilford.: I do ; not think the Court of Appeal decision' is clear as to when that plea should be given. The position has never been settled where there is a retrial.. His Honour: You treat this trial as a continuation of tho previous proceedings? Mr.Wilford: That is if I do-not have to invoke Section 403. If I do, I contend tho prisoner must not be deprived of his right, on this separate trial, of saying that lie was formerly convicted.

His Honour: Supposing you plea "formerly convicted," and the Court comes to that decision, then-lie is entitled to be discharged. If it comes to the decision that ho was not formerly convicted, then the trial proceeds. Mr. Wilford: I,cannot see any procoduro where there is a retrial. Tho obicct of the law is that a man'should not.be prejudiced becauso there is a retrial. . ...

His Honour: It strikes mo that if a trial fails it is nugatory, and tho whole proceedings must be gono through again, including the plea. I will ask the Registrar to chnrgo him, and will make a-note that any rights that you may have should not be prejudiced/ and that you mako this application beforehe was charged; :: '

Mr. Ostler: The practice on the Tβtrial, during my ten years' experience, has been not to ask the prisoner to plead again. .Whether this is warranted by the procedure laid, down in tho Juries Act seems doubtful.

His Honour: I will follow what has been t said to be tho proceduro for the last ten years, without making any observation, whether it is right or wrong. Mr. Ostler, before leaving the point, said that ho would like to disagree with tho statement that accused had been previously convicted for using the same words'. Tho words relied oh in tho Magistrate's Court were: "If a police constable uses his baton, give him ono back, and if .one will, not do, give him a double; header."' It was truo that the rest 'of the -indictment' was used, but merely.'to; give the setting under which the words wore used. It was expressly stated that those wero the words relied on, and they wero struck out of the indictment in the Supreme Court, on tho i chargo of sedition, because, lie had already been convicted on them, on a charee "of inciting. Mr. Wilford: The Magistrate said, in this Court, that he took the whole of tho speech into consideration in making the conviction, and accused only mado one plea. Special Plea Put In. The. prisoner was formally charged again, and Mr. Wilford put in a special plea, as follows:—Prisoner ' pleas a, special plea of previous conviction, on the grounds that he has been lawfully convicted of the crime- charged in tho count, or counts, on which such plea is pleaded. ' ■■■ Mr. Wilford said that ho also wanted to say, formally, as a special plea, that ho had been previously convicted of the same offence with which he was now charged; "(3) that the Magistrate had convicted and sentenced the accused to a period of three months' imprisonment, with hard labour, for the speech which now formed the subject of the sedition chargo; and (4) that tho evidoncc upon which tho Magistrate convicted prisoner was tho samo cvidenco which was to be preferred by the Crown on the present cliarge: and, thn last point, in re Simpson, that a man couhl not ho allowed to bo imperilled twice for the same offpnre. His Honour decided that there could only be ono special pica, and said that ho would accent tho picas as variations of the njin plea. Mr. Wilford said that there was also the point whether tho Registrar of tho Supreme Court had any "q;ht to nlace

the indictmont before the jury on a retrial, until accused had been called upon to plead. ■ . ■ .; Mr. Ostler: You caunot raise that point. ': His Honour: 1 will take it down. Point Should be Settled. i Mr. Wilford contended that . under Section '102, Subjection 3, of-the Crimes Act, which provided for tho special plea, it was laid down that tho special plea should he disposed of-beforo'.accused was called on to make, a further plea. Uβ suggested that His Honour should givo his direction then,', .and • that tho right to appear should bo ■■reserved; .. His Honour: Then .1 should' want the evidence of his previous -conviction. Tho evidenco of Mr. W. G, Eiddell, S.M,, given at the previous-trial, was admitted. In this, in'answer to-a question put by Mr. Wilford, Mr. Kiddell had said: ;■■•■: "Tho whole context of the speech, and tho wholo of tho circumstances leading up to tho occurrence, 'had to bo taken into consideration. \Tho words mentioned in tho charge formed part of defendant's speech. I admitted tho words before. and after the charge to show what tho charge meant. . . ■. The speech for which Young was convicted is tho saino speech for which ho is being tried to-day." There was only one speech made by Young, said Mr. . Wilford-. and ho thought that someono said to Young: "That was- too strong, Young, , .' and he stopped. Mr. Ostler contended that thero was one count, and one count only—that accused used seditious words. Tho section Under which accused was charged in the Lowor Court was Section 68 of tho Polico Offences Act. On that charge ho was in no peril of : being charged for sedition. He was simply standing on a summary charge. I3y Section 403 of tho Crimes Act, he held, it was laid down, in the plainest'language, that the special plea put in was not a valid one,; for he could'not, on that former charge, havo been convictod of sedition. Ho could not, therefore, validly plea "previous conviction." Mr. Wilford saic) that he wanted to make the point that tho law should dot bo savage or Telentless. ■ : After .further discussion, His, Honour said that he thought that if thoplea was sound, the proceedings should not go on. Hβ would look 'through.the evidence in Holland's case,' arid >grre.his decision later.- ■ ''■: "■■.-■ : ■■ •.-. ••■

Previous Conviction Over-ruled, . * After i 0 minutes >..His ■ ''Honour-, returned, and said that.he had read Holland's case, aiid, in his dpiTiibiip.it covered prisoner's case, : Ho did not/think that. the. distinction quoted made, any difference:-.. Ho would over-rule-the plea of "previous conviction'," and order that.accused plead over. The right to appeal was reserved to Mr. Wilford, and prisoner put in a plea of not guilty;to the charge : " . The/Trial Proceeds. ' The evidence of Leo. Stephen-Fan-ning,.of the.editorial staff of the "Evening Post," and Charles Rodman, of tho 'reporting staff of the "New Zealand Times," was.first called, on tho speech made by Young in the Basin Reserve on Sunday, October 24.\ .. Mr. Wilford asked His Honour to noto that Mr., Ostler had elicited information, from.'the witness Fanning with respect 1 to-the .words which had been struck 'out* of the indictment, and leave to appeal was granted on the point as to whether eviderieo could he takon concerning events which, occurred prior to tho speech made by accused. During an interval in the evidence, His Honour said that it had been laid down in authorities that, . where a speech \vas uttered continuously, but was not so reported, it rosted "upon the accused to show, that the omitted portions or variations varied the report.

Mr. Wilford called no evidence for the defence, and Mr. Ostler refrained from addressing the jury.' Mr. Wilford addressed tho jury, opening by stating that it was what could be called a "stale case."

Verdlot of Guilty. The jury retired at 4.10 p.m., and returned at C.30 p.m. with a verdict of guilty. They added a strong recommendation to mercy. Sentence was suspended till after the next sittings of the Court of Appeal, commencing on August 7, when the special plea raised by Mr. Wilford, on which right of appeal was granted, will be heard. Accused was liberated on his own bail. -.'■•■ Tlio following is tho list of the jury in the case:—James Davidson, (foreman) Thos. F. Gamble,-Jai Williamson, ,W. Cooper, —. I3ailey,',Wm. Chester, John Robb, Joseph Slack, Edward Coleman, Arthur Daiiiel,:.Jas.-IJ.,Higgie, Douglas Higgie,' and Chas: Elliott Bell.