ALLEGED PERJURY.

Evening Star, Issue 4305, 13 December 1876, Page 4

ALLEGED PERJURY.

SMYTHIES V. RUSSELL. . At the Resident Magistrate’s Court this morning Mr Bathgate delivered judgment herein as follows “The information now under consideration is a charge of perjury alleged to have been committed eight years ago. The case presents several peculiar features. First, the nature of the accusation itself. It has been found by experience that every witness is liable to threats of charges of having borne false testimony. For this reason the law throws every fence around a person accused of perjury, and recognises that the obligation to protect witnesses is more paramount than that to give even perjury its deserts. So carefully has this principle been carried out, that it is stated by a leading authority that instances of erroneous convictions of perjury are unknown. Second, the information is laid by the person who alleges he is aggrieved by the false testimony. Third, the law is set in motion for the first time after a lapse of eight years after the event. In many instances the prosecution of persons accused of crimes is limited in time by statute. Although in graver crimes there is no limitation—the maxim 'Nullum te.mpns occurrit regi ’ being held good—yet the principle underlying thie statutory limitation ought not to be disregarded in any case in ■which delay has occurred. An accused person should not in any way be prejudiced by delay on the part of the accuser; but, on the contrary, the delay, unless satisfactorily accounted for, becomes an element in his favor. Mr Smythies gives reasons for his delay in instituting the present proceedings. He states he ‘felt he had no chance in succeeding in anything before Judge Ward ’; that he ‘ ceased to reside in Dunedin that * for a time he was absent from the Colony ’; * and that he cared nothing at all about the affidavit until it was produced against him ’ recently. The reasons as a whole are not satisfactory. They imply that the proceedings have been taken to remedy a private wrong, a course against public policy. The prosecution of criminals is undertaken solely because public policy requires that offenders against the law shall be brought to justice and their punishment secured. In Collins v. Blantern (2 v*ils, 341), Chief Justice Wilmot, in delivering the judgment of the Court, characterised wilful and corrupt per jury as ‘a crime most detrimental to the commonwealth,’and said it was ‘the duty every man to prosecute, appear against, and bring offenders of this sort to justice.’ Mr Smythies did not fulfil his duty to the public in immediately proceeding against Russell, and he candidly admits that he is impelled now to do so for private reasons. This laying bare the motive which prompted the information cannot be passed over, as the probative force of Mr Smythies’s testimony is thereby weakened. In perjury, the essentials requisite to be proved in order to sustain a charge are—the oath must be wilfully and corruptly false ; it must be taken in a judicial proceeding before a c impotent jurisdiction ; it must be material to the question depending, and the evidence of one witness is not sufficient. Two witnesses are necessary, or, where only one witness is adduced, the evidence of the one witness must be supported by circumstantial evidence of the strongest kind. In the information there are six separate assignments of perjury, all arising in an affidavit made by the defendant Russell on 12th June, 18(58, before a solicitor of the Supreme Court, and used in proceedings upon a rule nisi obtained by Smythies, the prosecutor, calling upon George Elliot Barton, who had been defendant in an action at the instance of Russell, the accused, and Henry Howorth, Barton’s solicitor, to show cause why he should not pay to Smythies his costs incurred on behalf of the plaintiff in the said action. The affidavit contains thirty separate paragraphs, only six of which are challenged as false. The statements in the remaining twenty-four paragraphs may therefore be assumed to he correct. They are confirmed by the exhibits made and Mr Smythies’s testimony. The grounds on which Smythies obtained the rule were that the action against Barton, in which a judgment for LSOO had been given, had been compromised in the absence of Smythies, the plaintiff’s solicitor, and after notice of his lien. Russell’s affidavit is silent as to the notice of lien, so that it could be of no use on that ground. As regards the other giouud, the paragraphs which are not contradicted, and which cannot be denied, establish that Smythies had full knowledge of the negotiations and settlement between Russell and Barton’s solicitor. A letter has been produced in which Smythies wrote asking a share in the spoil. This leading fact in Russell’s affidavit was all that was material to the question pending, and the result, the discharge of the uile, must have followed accordingly. The matter contained in the six paragraphs in the information appears to me to he immaterial and mere surplusage, probably introduced for the purpose of blackening Mr Smythies’s conduct as much as possible. I will, however, defer final consideration of the question of immateriality till I have alluded to each assignment of the information separately. One important fact has been established which throws light on the ques- . tiou whether the defendant did corruptly and from malice swear falsely in his aflidavit. In June, 18(58, a correspondence took place between Smythies and Russell, in which the former alleged that the affidavit contained many false statements, and threatened that if the affidavit wag not taken off the file he would indict Russell for perjury. Russell immediately answered, ‘ I am not aware that I have made any mis-statement, and I have certainly not done so wilfully ; but if I have inadvertently stated anything contrary to the facts, or which might give a false impression as to the facts, 1 am quite ready to do my best to correct it.’ Smythies replied— ‘ The false statements in your affidavit are all those which rcla’e to your showing Mr Howorth’s bill of costs delivered to you in October, and the charge made against me of purloining the deeds out of the Registrar’s Office.’ To that Letter Russell sent an answer denying that he had charged Smythies with purloining the copies of the deeds, and explaining the terms of his affidavit. He declined to retract what he had sworn concerning the accounts until satisfied by Mr Smythies he was in error. To that letter no reply was returned, and no proceedings were taken. In this correspondence the alleged falsehood is limited to the two points mentioned. In the first assignment Mr Smythies has sworn that f it js not true that it was a fact that a large propertion of the costs were not fairly chargeable against the defendant, or that all the criminal proceedings against the defendant, George Elliot Barton, were undertaken for costs out of pocket/ Further, that ‘ it is not true that I urged Captain Russell to prosecute Barton.’ The first part of the statement contradicted is more a matter of opinion as to the fairness of the charges upon which no assignment of perjury can lie. It has been proved that a large proper tion of the costs was subsequently taxed off; that Smythies was willing to forego his charges in the criminal proceedings, and ithat Russell so far believed Smythies to be tiis debtor that he raised action against him ifor L2OO. In the latter part the question .stands oath against oath. It is probable •.that Russell was very ready to prosecute Barton at the time referred to, and, looking Smythies’s letter in the 1 Paily Times,’ it

is equally probable that be was as eager as Russell to get proceedings taken against Barton. The averments contradicted by Smythies in the second allegation is a claim ma le by Russell that Smytbies was indebted to him ‘ on foot of said accounts and costs.’ The Deputy Registrar, in taxing the bill of costs, amounting to L4(53 3s (id, disallowed Ll3O 15s Bd, and allowed a credit of L6S 10s on account, lie also allowed Russell the costs of taxation—Lti Is Bd, making a total deduction of L 205 7s 4d. It further appears that, although urged by Russell, be declined to go into the question of disputed retainers. As before mentioned, there is no doubt that Russell believed that Smythies was his debtor. In the circumstances, I am of opinion that Russell’s statement —‘ I claim rightfully, he is indebted to me on foot of said accounts ’ —cannot, in my opinion, form an assignment for perjury. The third assignment wherein the statement by Russell that Smythies had in his possession copies of two deeds while prosecuting an action for them, and that he had informed Russell he had taken them from the Supreme Court, where they had been produced by Barton as exhibits to an affidavit is the more important pai-t of the case. The remaining assignments, numbered 4, 5, and 6, refer to the same transaction. Mr Smythies, in the correspondence before allude i to, appeared to think that Russell had charged him with purloining the copies. This Russell then denied. The words arc ‘ taken from the Supreme Court, where said copie* had been left with the Deputy Registrar. ’ Mr Smythies, as a matter of fact, did take the copy deeds from the Supreme Court. This he has admitted, and has explained he did so by mistake, having lifted tliem fiom the table after a debate and put them into his bag along with his other papers. It being admitted that the main fact in this paragraph is true, I am of opinion that there is nothing left on which to found a charge of perjury, .-v mere discrepancy in detail cannot establish a prinul fade, case of wilful and corrupt perjury. There may be—and often are—discrepancies in the purest human testimony, but without conscious or wilful and coirupt error. In the fourth assignment Mr Smythies ’ contradicts Russell’s statement that he advised Smythies ‘ at once to return the deeds to the Court, as we had already seen the deeds and taken extracts from them, and they were of no use to us ; but he said he would keep them and make copies of them, and, if traced to his possession, he would say they had been by acci dent mixed up with his papers.’ The main fact, however, of Russell’s statement is not contradicted, as already shown. Smythies did take the papers from the Supreme Court, and if he did so by accident, he did not restore them to Messrs Barton and Howorth when he discovered he had them. The papers were improperly retained lor some time, and copies made of them by Mr Smythies’s son with his knowledge. There are two versions of the subsidiary c'rcumstances. Mr Russell says he advised Smythies to return them ; the latter says that Russell insisted they should be retained and copies taken. The one oath stands against the other as regards the minor details. The evidence of Mr Smythies’s son is not of weight to corroborate Smythies. lie was not present at the early part of the interview when the documents were discovered, and when he speaks of the anxiety of the respective parties in reference to the deeds, he says—‘l cannot now say the exact words that took place.’ Mr Smythies himself is unable to fix the exact date when this transaction took place. At first he swore it was ‘ on the 23rd June, 18(i(J.’ In cross-examina-tion he said—‘l take this date from Captain Russell’s affidavit. I have no recollection of the date myself.’ After the evidence for the prosecution was closed Mr Smythies asked for leave to amend his deposition, when he deposed—‘l did not receive the copies of deeds on the 22nd June, nor till some time afterwards.’ In cross-examination he admitted that he spoke from ■ information received from Mr Doughty as to the occupation of the rooms, and therefore not from his own knowledge. This confusion is made worse by the fact that the item in Smythies’s bill of costs referring to cause being shown and the discharge of the rule is dated 23rd June, the date in Russell’s affidavit. Barton and Sanders’s affidavit, to which the copies were exhibits, is dated 22nd June, and could only have been used on 23rd June. If these copies were not taken accidentally from the table after the argument, when and where were they obtained ? If Mr Smythics’s last explanation as to date be correct, then the copies could not have been taken from the table, but obtained somewhere else—a fact inconsistent with Mr Smythies’s explanation as to the manner in which he got them. Russell’s statement is corroborated by an item in Smythies’s bill of costs, dated 20th and 21st June, where he charges for taking extracts from certain documents, and attendance upon Russell, and going through the extracts with him. In his cross-examination he was asked the question, ‘ Do the charges made relate to the deeds of which he is said to have made extiacts in Russell's affidavit ?’ His answer was, ‘I cannot say. I have no recollection.’ He does not swear positively" he never made extracts from the deeds referred to, but he says, ‘ To the best of my knowledge, before I had obtained the copy" deeds I hud made no extracts from them.’ Extracts were made from some deeds, and there is no satisfactory evidence to show that Russell’s reference to the deeds is a falsehood. Mr Smythies has admitted the correctness of the statements in the 2(Jtli paragraph of the affidavit, which is impugned in the hfth assignment in the information. He objects to the words ‘falsely denied,’and depones that the deed referred to in his denial was not one of the two deeds of which he had copies, hut the original mortgage of the Mavuia run. This explanation does not clear up the confusion. The conversation took place on the occasion of argument upon the demurrer of Davie and others, Miller’s trustees, and it has not been explained how any reference could lie made to a (.Iced which belonged to the original vendor of the run, and which must have been duly registered, in pro-cedings against Davie and others. The deeds referred to in the declaration as in possession of Davie and others are the very deeds to copies of which Russell made allusion, and not the original mortgage. The sixth assignment is supported by the oath of Mr Smythies, who deponed—‘ It is not true that a considerable portion of the costs of the said action for the discovery of the said deeds were incurred subsequently to my possession of the said copies. Captain Russell never remonstrated with me against my carrying on the action at all. It is not true that I carried on the suit to harass and oppress the defendants, ami to make costs against < aptain Russell.’ The minor facts alleged by Russell, namely, that expenses were incurred after the possession of the copies of the deeds had been obtained, and that the action against Howorth, Barton, and Howorth was discontinued without any practical result, are substantially true; and it is not impronahlc that Russell remonstrated with bmythies. and that the latter advised the continuance of the litigation. 1 Russell’s belief at the time of making the affidavit that Smythies had carried on the action to harass the opposing solicitors and make costs is not improbable. By that time he had been kept in jail for six month.-, by Smythies for not paying the costs, and rendered bankrupt. In the circumstances, his coloring his belief a little strongly is not to be wondered at, and I am of opinion that a statement of that

nature cannot be viewed as wilful and corrupt perjury. Upon the whole, I am of opinion that the information has not been supported by such evidence as is required to substantiate a charge of perjury. The prosecutor’s case depends ahuost entirely on his own testimony. I have already stated my opinion that by the delay and the motive which has induced the proceedings, his evidence is weakened. The exhibits made by the defendant are more favorable for him than for the prosecutor, and the latter is also placed in an unfavorable position by his having burned hia books and papers at the time he was suspended. On cross-examination he was under the necessity of answering on various occasions that he did not remember. His son was adduced in support of one assignment, but he was not present at the first part of the interview, and the lapse of time has also naturally prevented him from recollecting what was said. His evidence is of the nature of a general impression or belief, not at all strong enough to corroborate the elder Smythies sufficiently to sustain a charge of perjury. I am also of opinion that the passages of the affidavit objected to were not material to the issue of the case pending when it was used. Had the evidence been otherwise strong enough, I might have with propriety left this point to be decided by the Judge as a question of law, but, in the insufficient state of the proof, I have no hesitation in giving my opinion. There may be several discrepancies in the defendant’s affidavit, and he may have colored some of his opinions and beliefs a little strongly, but I cannot come to the conclusion that he has sworn wilfully and corruptly what he know to be false. I am therefore of opinion that the evidence is not sufficient to put the accused upon his trial for the indictable offence charged. Having shared formerly in the belief that Mr Smythies had been hardly dealt with by ex post facto legislation, and knowing that his case had excited considerable public interest, I have given the grounds of the conclusion at which 1 have arrived, at greater length than usual. If Mr Smythies he advised that my opinion is erroneous, no hardship is done to hi n thereby, as any private person may prefer a bill of indictment to a (.Irani! Jury against another for any crime, without previous committal of the accused by a magistrate ; and that course is still open to him. This information will he dismissed.

It is reported that Mr Rees, M.H.R., is about to take wing from the sunny clime of Auckland and ply his vocation of lawyer in the green fields and fertile pastures of Hawke’s Bay. At the last meeting of the Lawrence municipality a letter was read from a Mr Ilolaad J. Barnes, ollbring to promote a company to supply Lawrence with gas. It wa-i resolved that Mr Barnes he written to informing him that the Council have no objection to his Heating a company, and will be gratilied to hj ar of his success in that direction.

To make a poo 1 broil —Leave a letter from one of ymr old sweethearts where your wiie can find t Disappointment and Success.—When poor Edmund Kean was acting iu barns to county bumpkins, bare y tindb g bread for his wife and ehild, he was just as great a g nius as when he was crowding Ormy Lane. When Brougham presided in the House of Lords, he was not a bit better or greater than when lie bad hung about in the Parliament House at Edinburgh, a briefless and suspected junior barrister. ,\nd when George Stephenson died, he was the same man, maintaining the same principle as when men of science and law regarded as a misch evous lunatic the individual who declared that some flay the rail- oad would be the King’s highway and mail coaches would be drawn by steam