SUPREME COURT.

Globe, Volume XXIII, Issue 2141, 5 January 1881, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Wednesday, Januaby 5. [Before His Honor Mr Justice Johnston.] The Court re-oponed at 10 a.m. THE CHATHAM ISLAND MDBDEB. Wiremu Wharepa was indioted for having, on tho 18th November, killed and murdered one Susan Wharepa. Mr Gibbon Carew Fitzgibbon was sworn as interpreter. Tho prisoner, through the interpreter, pleaded "Not Guilty." Tho Bev. J. W. Stack, at the request of hia Honor, took part in the case, as watching tho proceedings on behalf of the prisoner, alao to check the interpretation of evidence by the interpreter of the Crown, and to act as the medium of communication between the prisoner and tho Judge. The indictment and the form of selecting tho jury wore interpreted to the prisoner, and also explained colloquially to him by the Bev. MrStaok. The jury were about to be sworn, when the prisoner, through Bev. Mr Stack, asked to be allowed to make a statement. His Honor said that the proper time had not come for any statements. The prisoner would be allowed at the right time to make any statement he felt inolined. As he had pleaded " Not Guilty" of the murder, the case must go on. Tho "Rev. Mr Stock interpreted this to the prisoner, who said that he now understood that he had to roserve what he had to say. A jury was then empanelled, of whioh Mr Silas Papprill was ohosen foreman. His Honor requested the Bev. Mr Stack to ask the prisoner whether he required the aid of a lawyer, because, if so, the Government had offered to pay the fee. Bev. Mr Stack translated this to the prisoner, who replied that he had no experience of lawyers, and did not know what use they woro. . . Mr Duncan briefly stated the facts of the caae, and called the following evidence : James Child—l am a blacksmith at Waitangi, Chatham Islands. I saw the prisoner on the morning of the 19th November about Beven o'clock going along tho beach with a log on his baok, going towards the rocks from his own home. The bag was a 2cwt. flour bag; it seemed half full. I said " Good morning," the prisoner made some remarks in Maori which I did Dot understand. I went to my house and told my wife that I hod seen Wharepa. I afterwards went back and asked him to come in and have some breakfast. He picked up the bag and went away. Whilst I was talking to my wife Mrs Wharepa's dog came down. It seemed to me vory excited, and ran in and out of the rooms. I went up to the prisoner's house and cooed. Nj one answered. I opened the door and saw a quantity of blood on the floor of the room where they had their mealu. I went and told Mr Deighton, the magistrate, and we both went up. We traced some marks of blood on the grass, as if some body had been drawn along. The marks led towards the sea, and the ground there rises and falls. We could not find the body, and I came back home. I la»t saw Susan Wharepa alive on the day prior to this. She was an European, about eighteen yean of age. Her name before she married Wharepa was Susan Snoswall. I did not observe anything on the ceilinj of the room. Cross-examined by the prisoner—l saw you on tho beaoh and spoke to you. I am perfectly sure that it was Friday when I saw you on the beach. I did not get quite close to you j I was about twelve yards from you. You were excited. I heard you say something in Maori, but I did not know what you said. Mrs Wharepa's dog came to my house ; your dog was following you. I had seen a dog which had always followed Mrs Wharepa and no ono else. The dog was called " Rider," the name of a shepherd that came to work for Mr Ritchie. I went up to your house. I saw no man or men there. I did not see you killing this woman or a woman. I saw clots of blood on the matting in the house. Richard William Bayner: I am district constable at the Chatham Islands. I remember Friday, 19th November. On that moraine, from information received, I wont to Wharepa's house, taking with me William Itoatty and William Hankins. When I got to the back door, facing towards the sea, I found it looked, and marks of blood on the hill through the baok yard, and up the hill, an if a heavy body had been dragged up there with blood flowing from it. Just over the rise of tho hill, and 100 paces from the back door I found the body of Susan Wharepa. I knew her for two years. The whole of the front of the skull was smashed in. I could not recognise her features, but knew her clothes. I had seen her a day or two previous with some of the same clothing on. The appearance of the body as to height and size correspond with thai; of Susan Wharepa. The head was lying towards the house and the feet towards the sea. As regards identification, there are only six European females in that immediate neighborhood, and I made it my business to see that the other five were safe. I then wont and informed Mr Deigbton, and with him and Mr Hood went towards the rocks where it was said he had been standing since seven o'clock in the morning. He was standing looking at the vessel whioh was anchored in the bay, going to sail next day for Pitt's Island. That was the only vessel in harbor. I went up to him and spoke to him in English, and told him I arrested him in the Queen's name on suspicion of having murdered his wife. I have known prisoner for fourteen years. He understands .English well. The prisoner put up his hands, n.nd said in Maori, " Stand off! standoff!" This is what Mr Deighton told me he said. J. took him to the lock-up. He had a bag with two blankets. I warned the prisoner not to say anything, as it might be taken down iiind used against him. His Honor—There is no necessity to do thin, though it is safe. What should be done is to tell the prisoner that what he says may lie used against him. Witness Mr Deighton translated the warning in Maori to the prisoner. A medical examination took place next day. Mr Deighton and myself went to the house of the prisoner. On going into the sitting room I found marks where there had evidently been a large pool of blood, bat had been wiped up. The ceiling and walls on both sides were copiously splashed with blood, and what appeared to be brains. Mr Deighton drew my attention to a roll of ooooa matting in ono of the rooms, whioh appeared to have been taken up from the aitting-room. On the matting was a large stain of blood, and an the upper surface what appeared to be brains. There was also an old monkey jacket, whioh had evidently been used to wipe up the blood. After beiD g produced in Court they were destroyed. I found a pair of trousers marked with blood, which were similar to those worn by Wharepa. When arrested thore were spots of blood on the whito flannel trousers he was wearing. There was spots of blood on the serge waistcoat he was wearing. In the lean-to I picked up pieces of sltull, teeth, ond jaw bone with teeth adhering. The following day when the coroner's jury wont up to see the house, one of the jurymen handed me a pair of tongs with blood marks. I found two hats one of which was worn by prisoner and the [ other by his wifo. On one there was marks of blood, but I do not now remember. I found in the homo a pair of slippers and a pair of boots belonging to Wharopa. They were splashed with blood. [The witness produced the tongs, which were examined by the By his Honor—l did not find any weapon or anything that could be used as a weapon, except the tonga produced. Cross examinod by the prisoner—l went to your house on the 19th and 20th November. I found tho body of your wife about 110 paces from the house, on your ground. I do not know of my own knowledge who killed your wife. I saw you on tho beach on the Friday, and arrested you. I saw some trousers in your house. I produce them. Thero is blood on them. I found one pair only. I havo the pair you had on when arrested. Thoy aro marked with blood. I arrested you , on the point of the rocks commonly known as

1 the plaoe where we ship cattle. It was about; threo-quarters of a mile from your house. I did not see you killing the woman. I did not see any other woman when I went to your house. Alexander Shand—l am a Bheep farmer at tho Chatham Islands, and also a licensed interpreter under tho Native Lands Acs. I remember Saturday, 20th November last. I know the prisoner. I havo known him for twenty-five years. Ho is between thirty eight and forty. I saw tho prisoner on November 20tb, in the lockup at Waitongi. He spoke to me in Maori. I was one of tho coroner's jury, and went into the lock up with others of the jury. I groeted him by saying "Tenakoe." He replied, "Behold me," or "See me here," whioh is the ordinary answer to the greeting. I then asked, " Fur what are you here ?" His Honor said that this was a rather peculiar position. Here was a gentleman, a member of a coroner's jury sworn to inquire into the murdor, asking tho accused what he was in the lock-up for. He did not think he could admit this evidence. It seemed to him to be quite outside the doctrine of voluntary confession, because the jurors now sworn on the case might as well go to the prisoner, and ask him questions on the subject o£ trial. Was it required by the Crown tnat such conversation following the question should be got in if admissable. Mr Duncan said it was.

In reply to his Honor, Mr Shand said tho communication made to him by the prisoner folio vred on tho question put by him. His Honor said as at present advised he thought the communication cou'd not ho given in evidence. It was exceedingly important that no doubtful evidence should bo admitted therefore they must go cautiously. He was afraid, however, that none of the bo®ks would give them a case any way analogous as the questioning by a member of a ooroner'fl jury of the accused. It must be remembered that tho prisoner had an idea that Mr Shand was a person in authority. Mr Duncan wished to quote a strong case, in which Brie, J., had admitted a statement obtained by a police officer from a person suspected of child murder. [Case cited : Queen v Berryman, 6 Cox.] His Honor considered the case cited, and recalled

D strict Constable Rayner, who deposed that he was present in the lock up when Mr Shand went to the lock-up with the other members of the coroner's jury. He did not think that prisoner knew that the persons there that morning were the Coroner's jury. He had no means of knowing who were sworn on the jury, though ho know the jury were to sit that day. His Honor said he thought, under all the circumstances of the case, the best way would be for the case to go on, not taking Mr Shand's statement of what tho prisoner said to him now, but bearing tho quoßtion of the admissability of tho statement to bo discussed afterwards.

Mr Duncan acquiesced in the course proposed. The prisoner, on being askod wnether he had any questions to ask, enquired, "Is his evidence finished?" On being told that it was not, but that he would probably be called again, he said—" I havo no questions to ask him now; when his evidence ie all finished I shall have some questions to ask him." His Honor, to prisoner—Mr Shand is prepared to tell what you said when he asked you in the lock-up what you were there for. I have some doubts whether in law it is right he should toll it, but if you wish it I will allow Mr Shand to repeat your statement. This was interpreted to the prisoner. Prisoner—l do not thoroughly understand what it means.

His Honor—Put it in this way : He has a a right, if he likes, to ask Mr Shand what he said.

Prisoner, after this being interpreted—l thoroughly understand now. Mr Shand, cross-examined by prisoner— You spoke to me in the lock-up. Prisonor—What did I say to you ? His Honor said it would perhaps be as well to pause hero a moment, and see if the prisoner fully understood the position. Would Mr Stack tell him that he was not obliged to ask the question and get the statement from tho witness unless he liked to do so.

Rev. Mr Stack interpreted the position to tho prisoner. Prisoner—l do not now wish to aok the question of Mr Shand. His Honor directed the interpreter to inform the prisoner that he (the Judge) would consider yet whether the question should be answered, and, if nocessary, re-call Mr Shand.

Witness, cross'examined by prisoner—lt is perfectly true that you spoke to me in the gaol at Waitangi. It was on tho 20th November.

Whetu, a Maori, was the next witness. He said—l live at the Chathams. I know the prisoner. I remember when he was arrested. I lived with Wharepa some time before his arrest. The trousers produced are Wharepa's. I do not know the boots and slippers produced.

Cross-examined by prisoner—l was not at your house in November. I was working for some white men. I came here because I was one of the persons who went with the Resident Magistrate to see the house. I did not boo any man at the house when I went thore. What I saw in the house was blood. I saw it In the sitting room and bedroom. I did not see you there. Samuel John Cooper—l am a surgeon practising at the Chatham Islands. I remember 20th November. I know Susan Wharepa in her lifetime. I saw a body which, in other respects except the face being unrecognisable, agreed with my knowledge of Susau Wharepa. From the appearance of the body I should say that she had been dead for thirty-seven hours. I should say that sbe died about nine o'clock the previous evening. The whole front of the skull was smashed in. [The witness then described the appearance of the body.] I attribute death to the laceration of the skull and brain.

Cross-examined by prisoner—l saw the body at the Court House. I know from what I saw that her skull was smashed in, and that caused death. I don't know who smashed her skull in. Walter Hood was called by Mr Duncan who stated he did bo to give the prisoner a ohance of examining him if he desired. Prisoner —If he was examined I should have something to ask him in cross-examina-tion. As it is, I have nothing to aßk him. This dosed the case for the Crown, except the statement made by prisoner to Mr Shand. Mr Shand, recalled by his Honor—l have known Wharepa for many years, and we have been very good friends. I have no Government appointment, but oct as interpreter at the Magistrate's Court when required, or any special occasion. His Honor said he would now retire to consider the question of the admisaability or otherwise of tho statement made to Mr Shand.

The Court then adjourned. On resuming at 12.45, His Honor asked Mr Duncan if he had been able to find any case on tho subject. Mr Dunoan replied in the negative. Mr Shand, re-oalled by his Honor—l think there wore three or four of the jury in the room. We wished to see whet stote the prisoner was in.

His Honor said that this was a very peculiar state of things. He had carefully considered the matter, and had come to the conclusion that the question had not been asked in a way holding out a threat or offering inducement to the prisoner to confess, or that Mr Shand appeared in such a light to the prisoner as being one in authority asking a question while deciding upon his guilt or innocence. Therefore he thought the wholo very close on the border lino, yet did not come within the doctrine of exclusion. Examination of Mr Shand resumed—said " The cause which has brought you all down hero 9" Isaid, " The dead woman out,. side," and he said "Yes." He was very excited, and kept repeating " I have done no wroDg." He said, " It was her own fault; she kept coming in the house." He said he had quarrelled with her, and told her to go back peaceably to her own people. That there were bales or a bale of wool which Bho might have for her own benefit. Sha persisted in trying to get back into the house through the door, but failed, and then tried to get through the window. He said "You havo been up there, haven't you?" I said, "Yes." He said, " Did you see the windowon the left hand side." I Baid, "Yes." He said, "A pane of glass was out, and she lifted tho window and came in by that." He then said he bad struck her with a stick, but did not hurt her ; then afterwards took an iron and killed her. I asked if the iron was 1 the tongs found in tho firephce, and ho said yeß. He complained of her being a bad woman, and an adulteress both with Maoris

and Europeans, and he knew it. I don t think there was anything more at the time. Cross-examined by the prisoner—lt is perfectly true that you spoke to me in the gaol at Wuitangi. The words he used were— Ihe reason that I am here is the reason that brought all of you here." You said that you told your wife to go to her friends. You told me that you looked her out, and told her to go to her people. You and I have been friendly the most of the timo you have been on the island. To His Honor : The prisoner is a sheep farmer, and has a considerable quantity of hind in the island. I think ho had been two years married ro Su9an Wharepa. His Honor: Now is the time for the prisoner to call witnesses if he have them or address the jury. Prisoner: I have no witnesses to call. I have nothing to say to the jury, but perhaps Mr Stack may say something for me. In reply to Mr Stack's questions, the prisoner B&id ho had a statement to make. Prisoner : This is what I have to say.

Mr Stack was here called by the prisoner, who stated to His Honor that the prisoner understood that this was tho last opportunity he would have of speaking. Hin Honor requested Mr Stack to inform the prisoner that, should the verdict of the jury be against him, he would be asked to buj why ho should not bo punished. Mr Stack said tho prisoner had not yot made up his mind whether to speak or not. Aftor some considerable discussion between the pritoner and Mr Stack, he Baid, " I have no statement to make."

Hit" Honor then summed up, reviewing the salient points of tho case as given in evidence, and read over to the jury the statement made by him to Mr Shand. The jury, at 1.25 p.m., proceeded to consider their verdict.

At 2.25 p.m. the jury returned into Court. The Foreman—Wo are unanimous as to the verdict, but wo want to know whether we can bring in any recommendation to mercy on account of the wife's adultery. His Honor -You are sworn to find your verdict according to the evidence, and there was no evidence of tho adultery of the wife. The jury then retired again, and in throe minutes returned into court with a verdict of " Guilty " against the prisoner. The Kegistuar asked the prisoner, according to usual form if he had anything to say. Prisoner—l have something to say. Quite true that the woman was married to me. We wore married for twelve months. His Honor said that this was not the timo to say whether he was guilty or innocent, but why sentence of death should not be passed upon him. Prisoner—l do not believe that judgmont should bo passed upon mo, as no ono saw me kill this woman. No one saw me. They seized me and arrested me without reason, because no one saw me kill the woman. They seized me and took me to the lock-up. They made fast my hands' and feet. I stayed twelve days in tho 'prison without food. The reason I did so was that I saw medicine in the food given me. They gave me a pannikin of water, some bread, some soup and some butter, jl smelt the food, and was pretty sure that there was medicine in it. The men who brought it wore Mr Kayner and another man, who is in the Chatham Islands.

His Honor—rell him I don't want to stop him, but he is asked if he has any reason to urge why sentence should not paBS on him. Prisoner —I could not sleep at night for the smell of the medicine. One day I was parched with thirst, There was the water, the bread and the soup. I tried to drink seme; it made mo sick. I then laid down in the house. Mr Rayner, the other man, and Mr Deighton, asked me to eat. I would not, because there was medicine in the food. I did not eat it, because there was medicine in it. I went to another lock-up, whero there was medicine in the food. Mr Deighton came in and said to me, " Rat, eat; what is the matter with you." I did not reply, because I knew there was medicine in it. At the coroner's inquest I did not speak. I said I would wait till I got to Now Zealand to speak. That is the reason why I did not speak there. I was oick for twelve days, and felt sure that the medicine they had given me in my food had made me bad. They made fast my feet and handn to the floor, and I wondered why they treated ma thus. I thought, [why if I had committed a crime should I be treated thus, by fastening my hands and feet, ond putting medicine in my food. I said, " Why, if I committed a crima, am I treated thus and not brought here, where I am now." The great thing is, none of them saw me kill the woman. I have been locked up since the 18th day of November, when they put me in the prison. The whole time I was made fast by my hands and feet. Dr. Cooper came to examine me. I was weak and sick. He said to other white men who were there that my eyes were very bad, and I should soon die. Dr. 4* Cooper forced me to take some food by putting it into my mouth, but I did not swallow it. I believe it waß something in the shape of medicine, but there was such a smell of medicine that I had to hold my nose. They seized me by the nose and tried to force the medicine down my threat, when the spoon fell. I tried to Bee why I was treated thus, because I had not done anything wrong to any of the white men in the Chatham Island. I have no cause of grievance against anyone there except Dr. Cooper. I object to Dr. Cooper on account of tho way ho treated my Maori wife. She came from Lyttelton, and five weeks after was dead.

His Honor said he was very loth to stop the prisoner, but he must be told that he was asked if he had anything to say why the sentonco should not be passed on him for the murder ho had committed. Prisoner—l believe the doctor has an enmity against me, because I wrote to the Government asking for a fresh doctor. I have nothing more to say. His Honor, having assumed the black cap, said—l have listened to all you have said. It has nothing to do with your punishment for the crime of murder, of which you have been found guilty by the jury. The only suggestion you have made is that no one saw you do it. But from the evidence given it is as plain that you committed the murder as if we had seen it. You know you have committed a great crime, even if you had not associated with pakehas and knew their laws. It may be that your wife was a bad woman, but even if she had been the £worst of women know well that you had no right to murder her in the brutal manner you have. It is not for mo to point out the way in which you should employ tho few days left for you to live. My painful duty is to pass upon you the dread sentonce of the law, which is that you be taken from the place where you now are to the place from whence you came, and there, in due course of law, that you be hanged by the neck till you are dead, and may Almighly God have mercy upon your guilty soul. Tho Court then adjourned till 11 a.m. next day.