RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3484, 23 April 1874, Page 2

RESIDENT MAGISTRATE’S COURT.

Thursday, April 23. (Before’J, Bathgate, Esq., R.M.) Drunkenness.—John Whyte, for this offence, was fined 40s, or fourteen days’ imprisonment. Breach op the Prisons Act.—Thomas Logan was charged, on the information of Gibert Ferguson, gaol warder, with having, on the 13th inst., lurked and loitered about a railway carriage for the purpose of holding communication with a prisoner, and with refusing to leave when ordered to do so. Mr Haggitt appeared for the gaol authorities ; Mr Harris for accused.—Mr Haggitt, in stating the case, said it was brought for a breach of section 28 of the Prisons Act, 1873, which, with the material sub-sections 2 and 4, provided that no person should be allowed to lurk or loiter about any public prison, road, or place where prisoners were ; and any person so found should be deemed to be loitering there for the purpose of communicating with a prisoner. The Act further provided that any person could be ap-. prehended without a warrant, and conld be fined in a penalty not exceeding L2O, or in default be sentenced to imprisonment for three mouths, with hard labor. A man named Belcher was confined in the gaol, and on the day named in the information he, with other prisoners, was taken down to a place near Port Chalmers by railway, and brought back the same way. Before the prisoners on their return reached the railway carriage, defendant and another man, while on the road, met them and asked a warder, named Sam. Morrison, if they would be allowed to speak to Belcher.—His Worship ; Where is the defendant ?—The defendant, who was standing behind counsel’s table, was then pointed out.—His Wor-

ship ; Get into the box, —Mr Harris : This is scarcely a criminal charge.—His Worship: It is a very serious one. The Act authorises immediate apprehension. The prisoner must take his place in the dock.—Mr Harris : Then I object. I hold that it is an illegal proceeding. Prisoner is not here in custody, and a man when not in custody cannot be called upon to appear in the prisoner’s dock. I mention this with a view to after proceedings.—Mr Haggitt continued to state the case, saying that the warder, in answer to Logan, told him he could not speak to Belcher without leave,—Mr Harris asked if accused was to consider himself now in custody as a prisoner, for, if not, he asked that he be removed from the dock,—His Worship; He is before the Court on a criminal charge. Mr Harris : Exactly so. He appears there as a prisoner, but is not in custody. I wish to ask whether your Worship rules that Logan is in custody as a prisoner ? If not here as such, his imprisonment is illegal.—His Worship ; He is there as a matter of convenience.—Mr Harris : If he wished to walk out of Court, and did so, then your Worship could issue a warrant for his apprehension. In answer to the Bench, Mr Haggitt said that he did not want prisoner in the dock; he might go in the witnessbox if he liked.—Mr Harris ; Then I ask Mr Logan to walk out of that box.—His

Worship : I require him to remain. I have taken notice of the objection. You can appeal if you like. It cannot prejudice prisoner in any way by remainiug there. If you can satisfy me that it does prejudice him I will liberate him.—Mr Harris said it was merely a question as to the legality ®f defendant being placed where he was. If he were Logan he would walk out of the Court.—Mr Bathgate : tie is there as a matter of convenience. 'I ill placed there I did not know who the defendant was.—Mr Harris said it was the first time he had seen a prisoner in such a case so placed. Unless defendant was told to stand down his Worship might be placed in an awkward position, by having an action for false imprisonment brought against him.—His Worship thought it a very extraordinary thing for a magistrate when

exercising his duty to have a threat of that kind held out against him.—Mr Harris denied that it was intended as a threat.— His Worship ; I think your remarks show very bad taste. A threat of that sort might induce me to impel my decision the other way. I wish every person accused here may have the utmost consideration and fair play. If prisoner’s being placed in the box inconvenienced him I am willing to allow him to stand down if requested to do a». Mr Harris then stated that his objection was that defendant should have been arrested at Port Chalmers, and then he could have been placed in the dock.—Mr Haggitt explained that the reason why prisoner was not given in custody was that the warders were locked j up in the railway carriage with the prisoners | under their charge —Counsel wanted to call Morrison first, but Mr Harris objected. The following evidence was given Hilbert Pergusson, sergeant warder and overseer of labar in the Dunedin gaol, said : On the 13th inst. he had thirty-five prisoners under his charge. Amongst them was a prisoner named Belcher, who is undergoing a month’s imprisonment. The pdsoners were working on that day on the District Road at Deborah Bay. They are taken from Dunedin to the Port by rail and then marched along the road

in course of formation and escorted back the same way. Left off work on the day in question about twenty minutes to four. On the way to the railway station met defendant and another man. Witness's attention was attracted to them. Observed them scanning the prisoners closely, especially Belcher. Heard them whispering together, and witness understood they recognized Belcher. Defendant and the other man followed the prisoner to the railway station. Witness proceeded to s at the prisoners as usual. He put eight prisoners (one of them being belcher) in one oompartm nt, under the charge of Warden Curtis. Went into another compartmeut himself along with nine prisoners. Looked out of the carriage after being locked lu by the guard, and saw defendant within an arm s length of the carriage in which Belcher was. He took eut his pipe and commenced nodding to seme one in the carriage. Witness requested defendant to go away from the carriage window, and told him not to try and communicate with tha prisoners there. He said, “I hare paid my way as well as you have, and will look in at thi* window." He remained, and witness looked all round to see if he oould see a constable, and while he waa attracting the attention of Sergt. Neill, defendant walked away. Witness (

pointed him out to the sergeant.—Mr Hag. gitt; Now how was it you did not get out and arrest the defendant ?—Witness : [ was locked m with the other prisoners ; I could not get out if I had wished. By Mr. Harris : Defendant did rot speak to any of the prisoners when they first passed him. They cot quite close to the prisoners at the carriage window. Mr Harris : Would you undertake to swear what is the precise legal distance at which one of Her Majesty’s subjects, not in legal custody, may stand from one of these railway ca-nages?—His Worship thought witness s opinion could not bft taken as that ? f ,^ n IXIl Xl i ert, T( —Witness said he held that making signs was illegal. Mr Harris :Do you call nodding a signal? Witness said he did. Signalling was done in different ways, sometimes by the number o! puffs of smoke, also by nodding. Defendant was clearly signalling with his smoke.—Mr Harris • This is ft tine liberty country wo have got into and no mistake.—(Laughter.) A man dare not look through a window at another. Then all you know of this matter is that the defendant was smoking bis pip* ? His Worship; In a peculiar manner.—Mr Harris thought there was nothing remarkable in that. William Curtis, gaol warder, was on duty at Port Chalmers on the 13th April last. On his way with the prisoners to the railway station met two men • identified defondant as one of them. Did not notice anything peculiar in their conduct. Saw the men again after he was in the railway carnage with the prisoner Belcher and others. Defendant stood within arm’s length of the carriage window, continually nodding at someone inside. Witness waved his hand to make defendant go away, bat he took no notice, and continued nodding. Sergeant Ferguson, who was in the next carriage, then spoke to him, telling him to go back from the window. He refused, and said he had as much right to stand there as anyone else, and would lookjin at the window, and more than that he did so.-8y Mr Harris; Witness couid not say who defendant was nodding at. I here was nothing peculiar in defendant smoking or stroking his beard. He saw no harm in a man doing that.—Samuel Morrison, warder, said that while going to the railway station, Port Chalmers, Dagg, the man who was with defendant, asked witness

it he or the gentlemen with him could speakto Belcher. Witness told him that he could not under any circumstances, that they were not allowed to, and if he wished to speak to any prisoner he must, go to Dunedin and make a proper application to the governor of the gaol. Defendant and the other man then followed the prisoners close in, and witness beckoned to them as they got on the platform. Defendant had his eye bent inside the carriage (Laughter).— Mr Harris: Do you mean he was squinting ?-Witness : He was watching some one.—Mr Harris observed that the conduct of the Government m allowing prisoners to go down in the same carriages as were used by the public was very reprehensible. Persons on the railway platform could not help coming into close contact with the prisoners as the defendant had done. He could state that from personal knowledge, and had heard others making similar complaints.

He called Robert Elliott Dagg, hotel-keeper at Cromwell, who said he was at Port Chalmers on the 13th, with the defendant, who resides at Bendigo. They went to look at the dock, and while the prisoner passed, defendant said Belcher was among them, and witness said he would go and ask the constable if he might go and speak to him. He was told that he could not. Logan was about twenty yards off. ihey then followed the prisoners, with the intention of gomg to Dunedin by the train. Passing the refreshment room, defendant nodded at one of the carriages, saying, “Belcher ig in there. The sergeant warder then spoke to defendant, telling him not to look in the carnage. Defendant replied, “ Surely I can look where I please.” Sergeant Ferguson again told defendant to go away when the latter said he would complain to sergeant Neill, who was on the platform, and did so. Defendant, who would be about 15 feet from the carriage before Perguson called him, neither spoke nor made any signs to any of the prisoners.— James Black, J.P., said he had known the defendant for sixteen years as a straightforward, honest man. He did not believe that defendant knew any signs used by criminals, never having been in gaol.—His Worship said he was of opinion that defendant was partly in ignorance of having done wrong. If he found anyone guilty of such an offence intentionally, he would not give him the option of a fine, but would sento toe full term of imprisonment. In this case defendant would be fined L 5, or seven days’ imprisoment. The fine was at once paid.