RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VIII, Issue 2492, 10 February 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

Yijstkkday,

(Before J. Fulton, Esq., R.M.)

Civil Casks,

M'Lcocl v. Mollison. —LI 7s. Judgment by default for plaintiff with costs. Paseuitch v. Roche ami Martin.—A claim for balance of wages, L‘2 4s (id. For the defence it was stated that the plaintiff had agreed to do the work for a lump sum, and that he had been paid the amount. Judgment for the defendants. CHARGE OF MB EL. Regina v. Dick. —John Dick, printer, of Dunedin, was charged on the information of Henry Driver, with printing and publishing a false and malicious libel on him on or about the 4th February. Mr James Smith, with whom was Mr Macassar, appeared for the prosecution, and Mr Barton, with him Mr Bathgate, for the defence. Mr Barton asked that the case might be remanded for eight days, for although it appeared that the summons was issued on

the 7th instant, for some reason, he did not know why, the parties did not choose to serve it until the day before yesterday. He got it as he was informed immediately after it was delivered to Mr Dick and while in the Supreme Court engaged in business there. He took steps as rapidly as be could to ascertain the facts. Yesterday in consequence of the holiday the offices of the of the Court were closed so that he was unable to issue the necessary subprenas. His Worship ; Closed after two o’clock. Mr Barton ; Very well —it was too late to get the information he wanted. Ho held in his hand an affidavit made by his clerk of the office being closed when he went to make application, and as the case was of very considerable magnitude, it was his intention to ask in the first place that there should be a full bench of magistrates to investigate it In the next place he intended to have a great number of witnesses —over twenty. He went and asked the other side that the case should be adjourned, but it was refused. He, therefore, asked the Bench to grant it; for it was not right that he should be forced to go on with it until he was ready. He repudiated its bring a Crown prosecution. It was a private prosecution. He would, therefore, ask his Worship to adjourn the case for a week. He might state that one witness was John Treewick, to whom the alledged libel was written, and to , ho;n the letter containing it was sent. Ho was at Wanganui, and had to be sent for. His Worship was aware there was a ease pending in that Court, which, in consequence of a similar difficulty, was remanded from time to time to meet the requirements of justice. He need not tell his Worship it would be entirely wrong for him to proceed with the case without Mr Treewick. Bo far as his instructions went, he would be able to prove the genuineness of the letter, and he might say there were some very much worse. Mr Smith submitted there was no ground for the present application. There was no reason why the prosecutor should allow any imputation such as contained in the publication to rest on him for a day. If after having gone into the case for the Crown his learned friend could show a good reason why a remand should bo granted, such a requo.d would not be opposed on the part of Mr Driver, but at present no sufficient reason had been shown for adjourning the hearing. lie had alluded to another case in which several adjournments had been granted, but mistook the ground of the postponements, (hi two or more occa dons remands had taken place expressly by consent, and consequently it was not a case applicable to the present. His learned friend had expressed his intention to ask the ease to be heard by a full bench of Magistrates. He (Mr Smith) submitted that the request ought not to be taken into consideration at all as a ground for asking a remand. It was a reason why his Worship should at once proceed to discharge his functions as a Magistrate charged with conducting a preliminary investigation. It was an unheard-of thing, and he hoped such a pretext would never lead to such a practice in this Province; that in a ease of this kind the pencil should be—he was going to say packed—at all events that a number of magistrates should be called to sit op that Bench in a case that only required the‘Resident Magistrate to decide. The presence of other gentlemen on that Bench would give riso to the highest suspicion, and he trusted the reference his learned friend had made to secure the presence of other magistrates would alone induce his Worship to refuse the application. The Clerk of the Court Landed in a memorandum to his Worship, which he read to Mr Barton. It was to the effect that when Mr Barton’s clerk, Mr .Saunders, applied at the Resident Magistrate’s Court yesterday the clerks had not left the office. That Mr Morse was there until 4.30, and the other clerks until 4 o’clock. When Mr Saunders called, they informed him that the office was supposed to be closed, but that if his business was special they were prepared to attend to it.

Mr Barton did not care for what any of the clerks in the office said. He had an affidavit made by his clerk, Mr Saunders, and he thought his word was as reliable as those of ihc Magistrate’s clerks. That affidavit stated the offices v/ere closed, and the ipse dixit of those clerks was Insufficient to contradict his affidavit. If they cho:e to deny that affidavit, let them prosecute him for perjury. He would force a remand, and to that end ho would put a witness in the box. His Worship : Do not use such strong language, Mr Bartou. Mr Barton : I intend to use strong language. I mean to do so, for it is a most important case, His Worship : I will not allow the use of such language in this Court. It is an imputation on the justice of the Bench. Mr Smith : It is perfectly irregular to put a witness in the box before any evidence has been gone into by the prosecution. No ground lias been shown why the prosecutor should not-enter on his case. if reasonable ground Tor a remand were shown after the evidence for the prosecution was given, it would not he resisted. Mr Barton would not allow the Crown to go into the case without a remand. Ho would take very good care when the case came on that everything should come out in its entirety. He would ask his Worship to take care that no one-sided case should go before the public. In asking for a full bench of magistrates, ho did not intend to say the case would not be fairly tried by the Court. He was quite aware that the Bench was fair and just in this Colony. His Worship had always shown himself as just as he hoped he would prove in this instance. But the case Avas a most important one, as it involved the character of persons in Avhose hands avcvc the highest public trusts. He therefore hoped a case of that magnitude would he so dealt Avith that any misimpressions should he removed. He had heard it stated that it Avas generally believed that Court had merely to ascertain Avhethcr a prime facie case could be proved and then to commit the defendant. That Avas not the Article duty of the Bench. Its duty Avas not only to sit merely in preliminary proceedings but to he a protection to the general public, as jjwell as to the defendant. Its duty Avas Avhon n prosecution of a private character Avas brought before the Court to do more than ascertain Avhcther the witnesses Avere Avorthy of belief; its functions Avero precisely similar to those of courts iu England when application Avas made for leave to life an information for libel. Leave Avas given as a matter of course, but pare Avas taken to see that it Avas a fit case or not to proceed Avith. In that case his Avorship Avonld see whether it Ayas a fit case to send to a superior court. Ho Avas not able to prove the truth of Avhat Avas printed today, but was able to show sufficient ground

for a remand, and had a witness ready to prove it. He should put a witness into the box, Mrs Croker, to prove that the letter in question was seen by her ; that she knows Mr Driver’s handwriting very well, and knew it to be his ; that she took a copy of the letter and is ready to swear to its being a copy of the original. He had alse the affidavit of Mr Saunders that he had been at the office of the Resident Magistrate at 3 o’clock yesterday and the office was shut up, it having been closed at an early hour to enable the clerks to go to the C oluntcer review. He was consequently unable to issue subp'enas. He demanded a remand literally as a right, and he protested against any attempt to bring forward the other side of the case until he was ready to bring forward his men, and was ready to cross-examine witnesses.

His Worship said lie was quite willing to accept Mr Barton’s quasi apology for what he had said to the Bench. He only wished Mr Barton not to become so excited as to indulge in unbecoming language. Had it.been the first time it might have been overlooked; but it was not the first occasion. As to the question of inviting a full Bench, lie bad considered it over. Had he thoughfc it necessary to have a full Bench he could have one at a very short notice ; but as it would not be denied that this was in some measure a political quest on, lie considered it far wiser to he decided by a person altogether outside of political parties, as was the position of a Resident Magistrate, and that it would he better he should sit alone on the Bench than have persons sitting with him, who might be biassed on one side or the other. On that account the only person he had invited was Mr WiUon Gaay, whom no one would charge with being mixed up with any political party. With regard to the remand, he thought it only fair to grant it, as the summons had only been issued three days. He quite coincided with the objection of the compla’nant to the unreasonableness of being obliged to sit under the imputations contained in the letter; but he could not help it. Mr Smith asked for an early day for the trial.

Mr Barton asked for eight days, as Air Treweek was at Wanganui; and if he could produce him then, he should certainly ask for a further remand, for he was an important witness. In all probability he had possession of the original letter. Mr Smith said further remand would be strenuously resisted, as it would be a monstrous thing to wait until Mr Treweek; was found or chose to come down. Those who published a libel should count the cost. His Worship was not induced to grant the remand through the absence of Air Trewick ; but he thought it right to give time for subpoenaing witnesses, and three days was insufficient. Mr Barton considered Mr Treweek’s evidence so important that, should he not he able to be here after eight days, he should ask for further remand, and did not consider he would be asking too much.

His Worship granted the remand, for reasons already stated, and was not prepared to say what course he would take next week. The defendant was remanded to Thursday, and all witnesses in Court ordered to appear on that day. Bail was not asked.