SUPREME COURT.

Gisborne Times, Volume VII, Issue 389, 14 April 1902, Page 3

SUPREME COURT.

ALLEGED INDECENT ASSAULT.

THE JURY DISAGREE. (Before His Honor Mr Justice Conolly.) The Supreme Court was occupied the whole of Saturday hearing the case against a native named Ahipene Paku, who was charged with committing an indecent assault during August at Rangikohua, Awanui, on a native ~.girl aged 13 years, a second count charging him with rape. Mr W. D. Lysnar appeared for the accused. .

The evidence of Reremona Tcpira, complainant, had been taken the previous day. Cross-examined by Mr Lysnar, witness stated that she and accused had lived together at her father’s house for three months. Her mother had not consented to him marrying her. Witness had gone with prisoner on one occasion to Tuparoa, and had told Constable Kelly that she wanted to marry Ahipene. Tho prisoner told witness to tell Kelly falsely that her ago was 151, and she did so. feho had told Kelly that her parents consented to her marrying Ahipene. Hohepa Tepiri, father of the complainant, deposed that his daughter was 13 years of age. In consequence of inquiries he made as to tho trouble in the I bush, ho had consented to his daughter I marrying the prisoner. He wrote to the I uncle of accused asking that Ahipene should be betrothed to his daughter, to be married when she arrived at maturity. The uncle, Ahipene, tho policeman, came to see witness on the matter, and con- I sented to the betrothal. Prisoner was

then at Tuparoa, and he returned in consequence of a message sent by witness, who told him that Ahipene, the policeman, and witness had consented to give marriage. His Honor said the fact of there being immorality after the offence, or that the complainant had consented to live with accused, did not do away with the fact that the offence chargod had been committed. Ho also remarked about the delay in bringing the matter before the police, stating that bo could not understand the delay in the case. It had been handed from one constable to another, and then to Mr Ngata and the Maori Council, and it then came out as an indecent assault, with no mention of the graver chargo, apparently, until a month after that the evidence wss taken at Awanui.

Witness stated that immediately after his daughter had come backjj from the bush the matter was brought before the Maori Council, and then the police were informed.

His Honor: If the ivlaori Council found it was a good case, why was no information laid ?

Witness: I wished the law to deal with it, so I told Mr Ngata. The fault was not mine.

His Honor: Who gave instructions to Constable Kelly ? Witness: A half-caste by the name of Turi gave the information. Tuhare, a native lad, who accompanied the party to the bush camp, stated that prisoner had told him of his relations with the complainant during the time she was at the bush camp. Mariana Topiri, mother of accused also gave evidence. The prisoner’s depositions taken in the lower Court were read by the Registrar. In his evidence Ahipene Paku denied having used force or violence, and alleged consent. He thought she was about sixteen years of age. W. A. Barton, Stipendiary Magistrate for the oolony of New Zealand, at Gisborne, stated that he held sittings at Awanui every three months. When the case was first called on before him the police were not ready to go on with it.

Cross-examined by Mr Lysnar: There was some talk of the parties marrying, although nothmg of the kind was mentioned in court. When the case was before the Lower Court no evidence was offered for the defence.

Hiß Honor asked Mr Lysnar in addressing the jury to confine himself to the **' , arge. A great deal of the evidence D _ en did not bear on the question whether the offence of rape had been committed.

Mr Lysnar replied that he would have some difficulty in doing so, as it was necessary for him to show the conduct of the parties both before and after. ’rocoeding with his address, Mr Lysnar ■1 that the defence to the charge was rt and simple, and the jury should not 'e the slightest difficulty in arriving at decision.. The native girl and the used lived in one tent in the bush, and

prisoner admitted that he had bebn on iliar terms with her on many occa-siu-js. The evidence showod. that on no ■occasion did she complain whilst in the bush. Counsel impressed upon the jury that it was not likely the accused would have made the admissions he did had he been guilty of having committed rape. Having dwelt at length upon the relations that existed between the accused and the girl, both in the camp and immediately ifter they came out, counsel sought to ■how that the girl was of a marriageable age. Ho pointed out that the girl’s parents had allowed her after coming from the bush to go and live with the accused, and that the father had given the couple a whare to reside in. The father had openly stated to the Maori people that the girl had been given to the accused as his wife, and evidence would be called to support this. By official records he would show that the girl was 15£ years of age. Counsel contended that the accused had reason to believe that the girl was over 16, and he was sure that the jury after seeing the complainant and judging by the manner in which she had given her evidence would be led to the same conclusion. Bev. Herbert Williams deposed that he had charge of the native baptismal register for the East Coast. There was an entry on December 12th, 1886, of birth of a child, and a memorandum giving date of birth as August, 1886. Mr Nolan : Do you know, Mr Williams, in your experience whether natives in the event of the death of one ohild are in the habit of christening another the same ihnie ? | Witness" I have known of such cases amongst Maoris. His Honor: Not only the natives, but Europeans also. Samuel Grace doposed that he resided in the same place as the accused and the complainant, and they (the accused and the girl) lived together, with one idea between them. Mr Lysnar: What do you mean by one idea? . Witness: According to Maori custom, they go away into the bush, and come back and live together as one people. His Honor: What does he mean “as pne people ” ? The interpreter repeated the questtion but witness seemed puzzled, and after a long pause replied that he did not know how to put it in any other wav but that according to Maori custom they came back and lived as one people. The question was put again, and finally with frantic gesture which caused a burst of merriment, witness exclaimed in Maori: “ Now, if you had asked it in that way before I would have known what you meant.” The Judge : This seemed a good idea of wasting time. They stand in the box and receive a long question from the interpreter, give back a long answer, when all -. that was required could have been said in two words. The interpreter: His answer is that when the accused and the girl came out of the bush the father gave the girl to accused as his wife, and they lived together. His Honor: How does he know that ? Witness: I have seen them in one room. , , , His Honor: How does be know the father gave the girl to the accused ? Witness: That was what was talked about in the settlement. The father said, “ I will cause the prisoner to take my daughter, he being the one who acted wrongfully towards her.” The statement was made in the open space in front of the house, and in the presence of fifteon ® Continuing, the witness stated that the couple lived together foi three months, and, according to Maori customs, they were man and wife. Bis Honor: I do not care for Maori

ways or customs. I Mr Lysnar :I am endeavoring to show / that, according to Maori ways, the girl was of marriageable age. His Honor : She is of a marriageable age according to English law if she is fifteen. Mr Lysnar: I have another witness to call, who will speak as to seeing the patties living together. His Honor: It is admitted that they lived in the same whare together. Mr Lysnar: When the case was before the lower Court, we had no instructions as to the father giving them a wharo to liye in, nor wore we aware that they lived together for some time. His Honor : It does seem remarkable conduct for the Natives; according to Europeans, it would be abominable. Counsel having addressed the jury, His Honor summed up, pointing out that the prisoner was charged on two counts one for rape, the other for indecent assault. With regard to the former, the jury would have to decide as to whether the girl gave her consent; and, in reference to the latter, they would havo to be satisfied that the accused had reasonable cause to believe that the complainant was sixteen years of age. The evidence had been very lengthy, and nine-tenths of it appeared to have very little to do with the case.

The jury retired shortly after half-past four, and at six o’clock, not having arrived at a verdict, were sent for by His Honor. The foreman stated that there was little prospect of their agreeing for some time. His Honor : Is there any matter upon which I can help you ? The Foreman : I might say that Maori customs and manners have been introduced into the argument. His Honor : We know nothing of Maori customs in this Court, and are guided entirely by the law. Maori customs cannot be taken into account in any way.

The Foreman: From the remarks that fell from Your Honor to-day, I felt it was no part of our duty to discuss them. His Honor: You are not likely to come to an agreement in half-an-hour? The Foreman: There is not the slightest prospect ofthat, Your Honor. His Honor said he would return at half-past seven, and, in tho meantimo, the jury would be taken to the hotel for dinner.

At ten minutes to nine, the jury returned to Court a second time. His Honor: I am sorry to find you have not yet agreed.

The Foreman: We have not, Your Honor.

His Honor : Without telling me how you are divided, is there any matter upon which I can assist you ? Foreman: I suppose it would not do to return a verdict on one count only.

His Honor: You cannot find a verdict on one count and leave the other undecided. Foreman: Then there is not much likelihood of our coming to a decision. His Honor: I hope you are really giving your minds to it and disoussing it. (Laughter). Foreman: We are doing all we can, sir.

Judge (smiling): You can retire to your room and try again. At 10.30 the jury were again sent for, His Honor asking if there was any chance of an agreement. Foreman : I am afraid there is no hope. His Honor : I am sorry that you should give me the trouble to hear the case again, but seeing that there is no prospect of an agreement there is no reason to retain you longer.—You are discharged. Mr Lysnar: I have a witness that I should like to have in attendance when the case is re-heard, and desire an adjournment. His Honor: Where is he ? Mr Lysnar: He is at a place about 80 miles from here. I should like to call Constable Gerrard and several other witnesses, who will absolutely bear out the statement of the witness called to-day. His Honor: I propose by sitting late to dispose of the criminal business in two days, and intend taking this case on Monday.

Mr Nolan : The progress has been very slow so far.

His Honor: Terribly slow. The ease might have been cut much shorter. At Mr Lysnar’s request the matter was left an open question till Monday morning.

ALLEGED PERJURY. lopa te Hau, charged with perjury, was called up lor sentence. Mr Rees appeared for accued, and made application under section 412 of the Criminal Code Act, asking that the points raised by him the previous day might be submitted to the Court of Appeal, The points referred to were—That there was no corroborative evidence of lopa having given the first cheque ; that the question of the first cheque was not material to the issue in the lower Court.; and thirdly, that the cheque being for a gambling debt perjury could not be assigned on a false statement regarding it, Therewas also the question of His Honor’s direction to the jury when they requested the opinion of the Court as to whether they were to satisfy themselves that the prisoner had the full intention of misleading the Court. His Honor : That was in your favor, Mr Rees : I nardly think so, Your Honor. I propose to submit it to the Court of Appeal in the abstract sense. I submit that the mere false swearing is not sufficient, that it must be with the intention of misleading the Court in .the matter then before it. “His Honor : I stated my reason yesterday for over-ruling the objections raised. I thought so little of them that I did not call on the Crown Prosecutor to reply. lam still of the same opinion with regard to the misdirection to which you allude there was nope. lam of the opinion that I shall refuse that also. Mr Rees : Then 1 shall ask Your Honor to render available the provision of the Probation Act. I think this is a case in which it might well bo applied. Your Honor will see by the evidence that the prisoner was not cautioned at all as regards what the effect of the statement might be. _ His Honor : Wnat do you mean oy. not being cautioned ? Mr Rees . His attention was not in any way drawn to the effect of this statement. 1 do not argue that it was necessary to be done. 1 am only speaking now as to the application which I make.

His Honor : On what ground do you ask for Probation ? Mr Rees : Accused is a first offender and lias previously borne a good character. His Honor : r understood you were to call witnesses. The report of the Probation Officer is before me, and ;t is not .favorable. Mr Rees (in .1 surprised manner) : Then f will certainly ask for an adjournment till Monday morning to call evidence as to character. I may state that I have known accused for many years, and am r.ot aware of anything against him. His Honor : He is charged with a very serious - offence, and I am sorry to state that it is one which is very prevalent. You wish for a further adjournment Li l l Monday morning. I shall grant it. ASSAULT CASE.

In the ease of a young Native named Matehaere. found guilty of assault, Mr U. N. Jones asked that sentence might he deferred till Monday to allow him to call evidence as to character. The application was granted. ADMITTED TO PROBATION.

A fine looking half-caste named I-loni 1-lirini, who had pleaded guilty to forgery, appeared for sentence. Mr Lincoln Rees appeared for accused, and asked that the provisions of the First Offenders’ Probation Act should be extended, on the grounds that he was a young man and had hitherto borne a good character. The prisoner had recently returned from South Africa, and no doubt the excitement engendered by travelling and so forth had led him to commit, the act to which he had pleaded guilty. His Honor : I should hope not. We have sent 50U0 men to South Africa and if they come back and all commit forgery, it will be very bad. Mr Rees : We have this fact before us, that this young man has committed forgery. James W. Nolan, solicitor, stated he had known prisoner since he was a child, and he had never heard of anything against him in any shape oxform. His Honor : What is his occupation’? Mr Nolan : He has been working on one of the stations up the Coast. His Honor : This cheque appears to have been stolen from your office, and there appears to be the triple offence of stealing and forging and uttering. Mr Rees : It is all one transaction. There was no one in the office when the prisoner went in, and seeing the cheque lying there he took it. In asking for probation, I do so on the understanding that the money stolen be made good. His Honor admitted accused to probation for twelve months, and ordered him to pay a sum of £5 Ids, as well as Court costs, £2 Bs, at the rate of 2l)s per month. His Honor added : Prisoner, T hope that you will take this as a warning. You appear to have been a young man of good character, and it was very foolish of you to commit this very serious crime of forgery. You might, have thought it a joke, but you would have found it no joke had you been sent to prison for a number of years. 13e careful how vou conduct yourself in the future, for if you appear before the Court again you will not be let off so easily.,-