SUPREME COURT.

Evening Star, Volume IX, Issue 2677, 15 September 1871, Page 2

SUPREME COURT.

CRIMIAL SESSIONS. T/JJ.h Day. (Before Mr Justhw Obapmau.) rEHJUin. William Hayes was indicted fqr having, at Lawrence on April 27, committed wilful and corrupt perjury. Mr Harris conducted the prosecution ; and Mr Macassey defended. 'll;e facts of the case are these —Sometime previous to the month of February, one William who resided in the Tuapeka became insolvent, and he had to appear in tire 'Supreme Dourt in Dunedin on several occasions in connexion with his bankruptcy procceedings. On hj cbguary 2y, be made application to liwe his bankruptcy annulled, and on that occashn Hayes and a man named MTherson appeared as wit nesses, upon a Judge’s summons. At the termination of the proceedings, counsel for Haves applied that the witne-ses should be allowed the expenses incurred by them in coining down from Tuapeka; and it was alleged by the prosecution that as nearly as couhj. ( hu ascertained at this distance of time, the reply of the learned Judge was that “he was afraid he ednid notbelp him (Hayes), he should have been more cautious ; and have obtained his expenses botiny laying Tuapeka.” On the April 27, Hayes siinp moned Tyson to appear before -Mr iSinipsou, R.M., at Lawrence to answer demand for the sum of Lli odd, for his (Hayes’) expenses to Dunedin on the February be.i (C. At the 'rial both parties were represente ■> by ebuvs#! *t Hayes by M 1 M‘Coy, and I yson by Mr COjjt'op', iyson pleaded three pleas in answer to ihe demand —tiist, the usual one of nou-indeblcdnesk ; /second, a set-oil for an amount in excess of the claim ; and third, that inasmuch as the Insolvent .Court had made no order in the case, the lower ,coj/rt without jurisdic-

tion ; and further, that the plaintiff should have taken care that his expenses were paid before he left Tuapeka. The Magistrate, m dealing with the case, rejected the two first pleas, because the one was inconsistent with the other, and confined his attention solely to the third. In the course of his evidence .Hayes swore that in reply to the application made on his behalf in the Insolvent Court on February 27, the Judge said “ we should

sue for them,” meaning his expenses ; and that “ the Judge did not say we should have got our expenses before starting.” After hearing the evidence, the Magistrate gave judgment iu Hayes’s favor for the amount claimed, together with costs. Tyson’s counsel asked for leave to appeal, which was refused ; and on the following day, before Mr Simpson and two other magistrates, laid an information for perjury against Hayes, which

was dismissed without any reason being assigned therefore, and without any evidence being gone into. Tyson, feeling himself aggrieved, and having no other remedy, filed the present indictment before the Grand Jury. The alleged perjury consisted in Hayes’s statements that the Judge had said “ we should sue for them,” meaning his expenses ; and that “ the Judge did not say we should have got our expenses before starting.” Mr Harris, in opening his case, pointed , out the distinction between perjury at common law, and perjury by statute, which was that, in the latter case, the false oath (which must be taken iu both instances before a pro-

perly constituted tribunal) must be in some particular material to the issue ; while with perjury at common law it was not absolutely necessary that tho matter sworn to should be material to the issue. But iu the present case, the evidence for the prosecution would show that that distinction would be borne out, and all the ingredients essential to establish perjury would be presented. The precise words used by tho Judge would not bo stated, but evidence would be given of them as near as it was possible to do so. As it would be proved that Hayes was within hearing when the Judge used the words which the prosecution alleg d ho-did use—viz., that “he (Hayes) should have taken care to have got his expenses before leaving Tuapeka”—it would be contended that he had used different words, in order to induce the Magistrate to view his claim in a favorable light: and. iu fact, bad induced the Magistrate to come to the conclusion that be had jurisdiction. And in considering the question whether the matter sworn to was or was not material to the issue, he submitted (and, at a later stage, cited authorities iu support of that contention) that it was not absolutely necessary that the decision of the Court should have been influenced by

the statement made. For the defence it might be urged that the case was a paltry one, or the respectability of the accused might be put forward. His respectability was not denied ; but if the offence charged against him were proved it was an aggrayavation of it, because a man in his position should have set a better example to those below him. Evidence was given as to the words used by the Judge by persona present on the occasion of the application being made. The principal witness was Thomas Thompson, butcher, who deposed that when the application was made by Mr Stewart, counsel for Hayes, the Judge said, “ I don’t think I can grant it; you ought to have got them before starting,”or words to that effect, He took a note of the words used by his Honor shortly afterwards. No mention was made by the Judge that Hayes should sue for bis expenses ; he swore that. The defence was that no perjury had been committed; that his Honor’s observations were such as would reasonably lead to the belief that he had advised the witnesses to sue for their expenses ; and the evidence went to support this view. In the course of the examination of the witnesses, some correspondence of a rather amusing character, by Mr Stamper, Tyson’s attorney, was read. We cannot give the whole of the letters, but select one which he wrote to Mr Simpson, R.M. It is dated Waitahuna road; and after referring to a case heard before Mr Simpson, in which Mr Stamper had appeared, the writer expresses his resolve never to appear again in Mr Simppon’s Court, especially in any civil case involving matters of law. This letter bore in peneillediwritingthe following inscription “He told the Youngster he never heard before of matter of law, hut'only pf matter of fact, being received in evidence: {hereupon the Youngster was extremely indignant, and angry words followed from the Youngster, who preached bis pffusion upon law and justice, and threatened to give in charge—to commit—because he truly said neither law nor justice was done on last Monday. “Commit me ! aye, do it if you dare, my mpji. I daye you to commit me ;if you do you’ll commit yourself; you’d better consider about that; and mind what you do; mind what you are about. !1 (Youngster)—“ Police, police.” (Keen and other Insolvent*) : “Take him; take him ; have at him ; worry him.” “ Clerk, take that down; mind what your about ” The Clerk takes it down ; the scene drops, and people laugh. “[Exeunt omnes to get drunk and talk over any affairs rather than their own.

Conclusion of case. “ A clear case of purjury.” (The Youngster)—‘’Moat outrageous conduct to say so. (A laugh—* 1 He’ll commit you.”) 0! super ci quid super vis tua super riu te nuperabit. The jury, after a short retirement, returned a verdict of “ JSot guilty. Mp Macassey applied for an order for the defendant's costs, which' elicited from his Honor a condemnation of the' 1 manner in which an occasional remark of his had been made the means to entrap a witness. His Honor also remarked that the Act of 1870, under which the application was made, did not go far enough ; had it given him power to make an order against the attorney for costs, he would have done so. On the whole it was a nn at unjustifiable prosecution; there could be no doubt about that. Tyson was not sufficiently to blame—he having q/'ted under advice—to justify him in making against him. Air Macaasey that the defendant would have a perfect light fa action for malicious prosecution against’ Ty.-bu, and would be entitled to recover his costs. It would ho a piiy to put him to that c vt, seeing the action woit.d he indefensible. It his Honor granted the order, ho would no action would he brought. ■' His Honbr aaid that lie did not see on the face of the proceedings so far’as they had gone, that lysin' personally was tb blame ; and therefore he would not he" Jiiitified in

making an order against him ; but be would do so against the attorney if he could.

The trial of M ‘Leod for libel, is fixed for Wednesday by special jury.