THE HAWKE’S BAY TIMES. NAPIER, THURSDAY, OCT. 2, 1862.

Hawke's Bay Times, Volume II, Issue 66, 2 October 1862, Page 3

THE HAWKE’S BAY TIMES. NAPIER, THURSDAY, OCT. 2, 1862.

. SUPREME COURT. «' MIDDLE DISTRICT. [Before Mr. Justice Johnston.] A sitting of this Court, convened, by special commission, was opened on Monday last, before His Honor Judge Johnston, in the Council Chamber. The doors were opened •at ten p clock a. m., and the Court was immediately filled by jurors and others interested in the-proceedings. The Hon. Col. Russell, Civil Commissioner, and J. A. Smith, Esq., Acting Sheriff, occupied seats on the bench. The names of the Grand Jury were as follows : —J. B. Ferguson (foreman), Edward Lyndon, Alexander Irvine, Michael Fitzgerald, T. D. Triphook, T. K. Newton, J. B. Brathwaite, G. E. G. Richardson, H. Troutbeck, W. Maltby, J. Wilkinson, Y. Janisch, Samuel Begg, Michael Browne, Alex. Kennedy, Esqs. On the names of the petty jury being called there were two of them absent, and it was stated that they had left here for Otago after receiving notice to serve as jurors. His Honor remarked that although persons travelled from one province to another they must not suppose that they escaped the pale of the law, and fined them <£2 each, intimating that the sheriff of Otago would be communicated with for the purpose of enforcing the penalty. The Grand Jury were then sworn, and Ins Honor the Judge addressed them as follows ; Mr. Foreman and Gentlemen of the Grand Jury for the Middle District of New Zealand — I am not aware that anything has occurred since my last visit to this place within this portion of the colony, which calls for any special notice or comment. I have no reason for believing that any species of crime is prevalent in this province, or that there is any deficiency in police arrangements which prevents the detection of crime, or renders the protection of person and property less certain than might fairly be expected under the existing circumstances of the Colony. It certainly is matter for congratulation that no fresh complications have arisen in this part of the Country between the European and Aboriginal subjects of the Crown ; but that on the contrary, the natives have shown their confidence in our tribunals, and in our administration of justice, by handing over one of their people charged with the grave offence of murder, and that, too, of the murder of one of their own race, to be dealt with in the ordinary course of British justice. Recent experience in other parts of the Colony compels me to believe that our Maori fellow-sub-jects require but full and enlightened explanations and illustrations of our system of administering justice, in order to induce them to accept it with satisfaction—nay, with admiration and gratitude. Complicated as our system has become from excessive caution and anxiety to do right, and great as the difficulties undoubtedly are in making some of its operations and its ancillary developments intelligible and appreciable, even to partially-educat-ed Europeans,—l believe that there is an essential r.-ctitude of principle—a manly common sense —a straightforwardness of purpose—to be found pervading or underlying even the most technical rules of its procedure, which can be, and often are, praeiically recognized on explanation by the moreintelligent Maoris, and which clearly commands a certain amount of (heir respect and confidence j and as I conceive that the active intervention of the great body of British communities in the administration of justice, as magistrates, grand and common jurors, prosecutors, and witnesses, is one of the chief sources of political and civil enlightenment, and liberty, and true independence always accompanied by respect for the laws which happily prevail among us, and one of the best means of educating the various classes of people for the due enjoyment and exercise of the privileges of citizenship ; —so do I firmly believe that in proportion as our Maori fellow-subjects learn to appreciate, to bo contented with, and thankful for the administration ofjustice among them on British principles ; jealousies and prejudices of race, and distrust of the British Government, and British tribunals, will disappear, confidence in British professions and promises will be engendered, reliance will be placed upon the protection of the law, mutual respect and sympathy, and cooperation for the common good of both races will be developed, and a sense of security and prosperity will be gradually superinduced among the N ative people,—so clearly attributable to the wisdom and equity of British law and to the firmness and impartiality of its administration, —that, overcome by file conviction of the goodwill and the jiowcrforgood of the British Governors and Administrators of the Colony, they ■w ill soon learn to look upon any attempt to excite among them hostility towards the colonists, as mischievous and short-sighted, and equally to be dreaded as the machinations of their bitterest enemies. I am glad, therefore, to find that the Legislature in their recent session, besides provision for summary proceedings in native districts, have made practical arrangements for securing hereafter the intervention and assistance of Maori Jurors in cases affecting Maoris in the Supreme Court; and tliat, as soon as the machinery of the new Act can be set in motion, every Maori accused in this Court of a criminal offence involving any injury to a Maori, will have an option of being tried either by a Maori or European jury, as he may think fit. Moreover, in civil cases where both parties are Maoris and concur in claiming a Maori jury, they

will bo entitled to liave one; and in civil cases, where both parties arc Maoris, and one of them only wishes a Maori jury—and in all civil eases where one party L European and the other Maori, and the Maori shall desire ir —the trial is to be by a mixed jury of Maoris and luropeans. Haying alluded to this piece of recent legislation affecting the administration of justice among the natives, I naturally revert to other laws passed during the late session, relating to the same subjects, but more especially applicable to the Luropean portion of the community ; and it affords me much pleasure to express my conviction that the labors of the Legislature—whatever may be their value in respect of those great political questions with which it is not my province to deal—have at all events produced measures relative to legal tribunals and proceedings, and the commercial interests of the community, from which the most beneficial results may be expected. And, as I proceed to give a brief outline of those measures, it would ill become me to pass in silence over certain provisions made, in what I believe to be a most wise spirit of policy and liberality, for preserving the independence of the Judges of the Supreme Court, both with respect to their tenure of office and their social position. In the real, substantial independence of the judges—securing their freedom from all motives of ‘‘ fear or favor”—exists one of the best of practical guarantees for their impartiality of judgment, and thence, for the liberty of the subject. The difficulties engendered by local circumstances have placed the Supreme Court of this Colony in a position different, I believe, from that of any such tribunal in any other part of her Majesty's dominions; inasmuch as the Judges have been called upon to act alone, and without the practical power of consulting each other, in cases of every kind which are within the provinces of any of the various Courts of Law, Equity, or probate in the mother country ; and the Judges of Mew Zealand, not only because they labored under a strong sense of so great responsibility, and of diffidence of their own power to discharge singly, in anything like an adequate manner, so varied and difficult functions, —but because they believed the Colony was entitled to receive the benefit of their aggregate experience and deliberations at the earliest possible moment, —recommended, in a report made some time since at the request of the Governor and his advisers, that they should be constituted into a Court of Appeal, to meet from time to time as the circumstances of the Colony might permit, not only to review the decisions of single J udges, but to entertain questions of law of great gravity and importance, even before any decision by a single Judge. In consequence of that report, a bill was introduced into the General Assembly during its recent session, which, with certain modifications, is now the law of the Colony; and from the operations of which I anticipate great advantages to the community, by the producing of the uniformity of decision, the correction of special opinions and the creation of increased confidence on the part of the public in the administration ofjustice, both civil and criminal. The general efficiency of the Supreme Court has been further secured by the determination to appoint a fourth Judge, to be resident in the southern portion of the Colony ; to which, as you are aware, so great accessions of population have recently been and are yet likely to be made ; and in alluding to this topic I think I may well congratulate the Colony on the probability that the new Judgeship will be filled by a gentleman whose high attainments and character, known and appreciated beyond this Colony, will help to increase the respect of the public for the tribunal. But besides the inst itution of the Court of appeal, the Legislature have in various ways extended and promoted the utility of the Supreme Court; and have made a series of provisions tending to simplify, shorten, and cheapen—and, which 1 believe is often still better —to prevent, litigation. A Supreme Court Amendment Act has given power to each Judge to appoint from time to time sittings at any place within his district, at which a variety of classes of cases of limited importance may bo tried by a minor jury of six, without requiring the parties previously to go through the elaborate, costly, and sometimes prolix proceedings prescribed by the ordinary practice of the Court. Without entering into the details of this measure, I may mention that among its practical effects this will arise—that a Judge arriving at a Circuit town may fix a minor jury sitting to take place before his departure, at winch parties who are willing to have disputes disposed of summarily and inexpensively, may forthwith go to trial, even though no proceedings have been commenced before the arrival of the Judge. Power is also given to the Judge to delegate ins authority to hold such minor jury sittings to competent professional men, in case of emergencies which should render the course desirable. By the same Act improvements have been made in the system of official administration, whereby among other things, a rateable distribution of the assets of insolvent intestate estates is legalized ; and provision is made for the protection of the property of persons who have disappeared, although there bo no legal evidence of their death—a proceeding which experience has proved to be requisite under the existing circumstances of the Colony, especially in Gold districts. Although the District Courts have not been abolished by legislative enactment, it does not seem to be the intention of the Government to continue them in operation as regards their higher jurisdiction; and it is probably considered that the minor jury sittings of the Supremo Court will to a great extent obviate the necessity for keeping up their somewhat cumbrous and expensive machinery ; but in order further to prevent the community from suffering from the want of that intermediate tribunal, an Act has been passed for the extension of the jurisdiction of Resident Magistrates to cases of £SO, and it may be to £IOO, in places where the Executive Government may deem that the exigencies of the community require it. An Act has been passed which must prove of great importance and utility to the commercial community, for preventing fictitious or frivolous defences to action on bills of exchange, promissory notes or cheques, and on contracts in writing signed by the defendant whereby a sum certain is payable on a day certain. Its provisions, mainly

taken from an Act which has been in operation in England for the last lew years (with some adaptations to suit the circumstances of the Colony) enuulo the holder of a bill or note, or a person entitled to a fixed sura on a fixed day by virtue of a written agreement signed by the defendant, to get judgment in twelve days, and execution immediately afterwards, unless'the defendant obtains leave from a Judge, upon affidavit, to plead as in the ordinary course of an action, or deposits the amount claimed with the Registrar, or finds security to his sat isfaction to abide the event of the action. Another Act, for the better securing of Trust funds and for the relief of Trustees, also adapted from the provisions of a modern English Act, is likely to prove a considerable boon to the community ; inasmuch as it will enable trustees, executors, and administrators, by paying in Trust funds to the Colonial Treasurer, subject to the orders of the Supremo Court, to relieve themselves from all personal responsibility, and have the directions of the Court and the services oi its olllcers, or special persons appointed by it, for investing the funds and administering the trust estate. Anew Act for regulating juries has removed some of the objections to the old system of summoning juries, which were most loudly complained ol by tlie public,—has provided, as I have before remarked, for the summoning of native jurors to the bupremo Court, in cases where natives committed for trial to such tribunal for offences to the injury of natives, choose to be tried by a jurv of their own race; and has also made arrangements for mixed juries in mixed cases. Another most important Act has passed, but will not come into operation till it has been proclaimed in the Gazelle, the object of which is to give relief to debtors, and security to creditors, and so to supply one of the most urgent wants of the Colony. I need not detain you at present by attempting so give you a digest of the enactments of this measure. Its main objects are to prevent the useless, demoralizing, and pernicious practice of keeping in prison debtors, not guilty of fraud, to enable creditors to force insolvent debtors to give up their property for distribution, to punish fraudulent debtors, and to exonerate innocent debtors who have complied with the statutory requirements from future liability,—subject, however, to large powers vested in the Court as to terms and conditions of discharge, necessary to meet the real justice of each case. T rom this measure, —although it may be only of a tentative character, and may require amendment and modification to bo suggested by practical experience,—l cannot but anticipate a very large and substantial amount of advantage to the community in general and to the commercial pori ion of it in particular. Such is an outline of the principal legislative provisions affecting the admistration of justice, which have come into existence since my lust visit to this place ; and 1 cannot conclude my observations upon them without again expressing a confident anticipation that they will he found to contribute, in several very important particulars, to the welfare of the Colony and the convenience of its Inhabitants. I now come to the specific business for which wc are assembled here to-day : and 1 am happy to find that, besides a serious charge against an Aboriginal Native, there are but two eases to be submitted for your investigation. Clue—a charge of theft from a goulleuieiVs saddle bags at Havelock in which the accused was found in posssession of some of the stolen properly immediately after the theft—requires no comment. The oilier is a charge either of housebreaking or theft; and the only remark 1 have to make concerning it is that, although it is a case of what is called recent possession—where stolen properly is traced to the possession of flic party accused—and the goods were found in iiis possession, a very considerable time had elapsed alter the theft, yet, inasmuch as not one article only, but several, which had been stolon together, were found in the possession of the same jierson, it would be but j ust and reasonable to infer that that person had stolen them unless he should give some reasonable account of the manner in which he became possessed of them. And now I come to the most important case of the Assize, in which an aboriginal native of the name of Netane le Huiki, is charged with the wilful murder oi his wile, Hiraina. 1 am most anxious (hat our Maori fellow subjects should fully understand the law applicable to this ease, the functions ot the Grand and Petty Juries with respect to it ; and, moreover, should have the opportunity of drawing from the investigation of it, a practical illustration of the principles upon which our criminal law is based, and the meaning of the procedure by which it is administered. You will t hereiore bear with me if I briefly advert to certain general maxims ami doctrines, with which, though they may he familiar to you, we can scarcely expect our Maori neighbours to be fully conversant. It is necessary to keep constantly in mind the distinction between 'private wrongs—injuries done to individuals only—and public wrongs and injuries, which, though specially affecting individuals, arc besides so mischievous to the common interests of the community, that all society is interested, and the prevention or repression of them is required for the general protection of all. Tiic former kind of wrongs are the subjects of cicil actions—proceedings by which the injured individual obtains a recompense, payment, or satisfaction for the wrong done,—as in cases for the non-payment of a just debt, the non-perfor-mance of a contract, or a trespass on one’s house and land. Ry the payment of the sum awarded as compensation or satisfaction, the injured individual, in such cases, is restored to his proper position. The other kind of wrongs—public wrongs—which affect the whole body of society by rendering life and property unsafe'arc the subjects of criminal law, and punishment or suffering is awarded in respect of them—not by way of compensation, satisfaction, payment, or revenge, but for the one object of preventing such wrongs being done again, either by the individual who is made to suffer, or by others whom the example of his suffering and the certainty of similar suffering being awarded to them if they offend in like manner, are intended to deter from the commission of such offences. Of this kind are murder and nil unlawful killing of men, theft by fraud or force,

serious and malicious assaults, and many other such wrongs. In the suppression and prevention of these not only the individual injured but all the community are interested. It is their interest, not merely that the individual injured should be compensated or satisfied, but, in a much higher degree, that the offender and all others should be prevented from committing such wrongs bv fear of suffering; and th us it becomes the duty of the State (and for this purpose tiie Sovereign represents the State) to take proceedings for the punishment of the offender; and thus the injury is said to be done against, the Queen, her crown ond dignity. It must steadily be borne in mind that the conviction and punishment of persons committing such public wrongs, is not by way of revenge, but for purposes of prevention only, Mow, nothing could be more contrary to these principles than the punishing of persons who are really innocent though suspicious may be excited against them, it would be a far greater evil to society generally that an innocent person should be convicted bn more suspicion, than that many guilty ones should escape for want of sufficient evidence against them ; for the discovery of a single case in which an innocent person had been convicted upon insufficient evidence, would give the People a greater sense of insecurity and excite greater distrust of the law, and would make them doubt the value of its protection, much more than if various persons apparently guilty were allowed to remain unpunished. The great advantages of our English system above all others arise from the spirit of calmness, ami the freedom from prejudice or desire of revenge with which criminal proceedings are conducted among us Our great doctrines arc that no pains shall" be spared to discover the perpetrator of offences, that suspicious circumstances shall certainly lead to investigation, but that in the end no person shall be made to suffer unless his guilt be made out by evidence beyond all reasonable doubt. The duty of a Committing Magistrate is simply to see whether there bo evidence enough to make it proper that a charge should be more fully invest igated bv another tribunal—enough to put the prisoner on his trial—besides giving accusers an opportunity of preferring charges, even if the accused had not been committed. Then comes the Grand Jury, which affords an additional protection to accused persons—preventing them front being put on their trial and subjected to the disgrace and inconvenience of a public enquiry, if it did not seem that there is enough evidence against them to make it fair that they should be put on their trial. Afterwards, if the Grand Jury allow the case to go on, a full investigation takes place in public before a petty jury—a Judge directing the enquiry and applying fixed general rules of evidence adopted by experu mice and reason for the discovery of truth ; and (he great guiding principle at such'trial is that unless eaehjurymau be satisfied in his own mind, beyond such a reasonable doubt as he would give weight to in the common affairs of life, the accused ought not to be convicted. T>ut I must remind yon that, both with regard to the Committing Magistrate and the Grand Jury, the question to be considered is not so much the probability of a conviction, as the necessity for a full and public investigation, if there be enough to justify it. Certainty of deliberate and ample inquiry is often as important to the interests of society as certainty of conviction. The charge against the Maori prisoner is one of murder, and you know th.it murder consists in the wilful killing of any one with malice aforethought.; and that means either with a desire to kill, under such circumstances as shew a generally evil recklessness of disposition And every. killing is presumed to be murder unless the circumstances shew that it either was justifiable, as in the case of necessity for selfdefence, or that it was reduced to manslaughter by provocation or otherwise. Our law indeed makes a very serious difference between one killing and another, and although it punishes murder with death, it does not tolerate such a punishment for killing which docs not amount to murder,To these things I refer from a desire to call the attention of the Maories to the reasons of our dist inction between one kind of killing and others, though it is unnecessary to go into these matters more particularly at present. In the case which will bo brought before you the distinctions between the different kinds of killing are not important, and you will not have to trouble yourselves with the' question, whether the killing, if such there was, amounted to murder or only to manslaughter; for if the evidence fends to shew that the prisoner killed lus wife, there is nothing apparent in the circumstances which should reduce (ho case to manslaughter. As I understand the ease from the depositions, its bearings are as follows: On a certain Sunday night (he prisoner’s wife slept in her mother’s house, with the prisoner, and was in health. On the following day the prisoner informed various persons that his wife liad drowned herself ; and, on proceeding to the hank of a creek indicated by the prisoner, they found his wife lying there dead ; but, as I. understand the depositions, in a position into which she could not have come accidentally. The first question, (hen, is whether the death was natural or not natural ; and I do not understand (hat there is any very distinct evidence on that subject: ; and there seems to have been a want of thought and care in this respect on the part of a medical gentlemen who examined the body ; but the prisoner himself says it was not natural, but that she had drowned herself. If you should think there is some evidence that the death was natural, flic next question is, whether it was caused by the woman’s own act or by that of some other person. On this point there is no direct evidence except the prisoner’s statement but you must not necessarily adopt that as in all respects true, since it tells so far in his own favor. Then you must, look at the probabilities of the case—at the position and probable motives of the parties. IS’ow there is evidence that the accused had been a faithless husband, that he had both recently and frequently qnurrelled with his wife, and had absented himself from her, and also that he had used threats against her life. Moreover, although he said she had drowned herself, he does not

eem to have given any distinct account of what part of the transaction lie had seen, nor how and where he found her, nor what he had done to the body. There is some minute evidence 'with respect to footsteps of n male and female, from which the native witnesses seem to have drawn certain inferences. But I must caution you against adopting the mere opinions or suspicions of any one on the facts. You must be the judges foj yourselves of the proper inferences to be drawn from the facts. And upon the whole case, if you think that there is a suillcient fair ground to put the accused upon his trial, you heed not trouble yourselves to weigh the evidence minutely for the purpose of ascertaining whether you would, upon the facts as brought before you, convict the prisoner or not. Although you ought certainly not to find a bill against the prisoner if you think there is no primd facia case against ■ him' at all, you as certainly ought not to ignore the bill, merely because you doubt whether upon ' the evidence as you have it before you, you would feel it your duty to convict the accused. Whatever be the result of the enquiry, T cannot but express the hope that the Maories who may witness or hear of these proceedings, will be satisfied with that result, and will be convinced that every anxiety has been displayed, and every effort made, by all concerned, to arrive at the real truth and merits of the ease—not by prejudice or suspicion for or against the prisoner, but by a calm and deliberate examination of the {acts, and , by a course of proceeding as likely to arrive at ■the objects for which criminal justice is administered as any which man's reason, directed by the wisdom and experience of many generations, e&n well devise or conduct. No doubt our duties are most import out ones—to be approached with a deep feeling of responsibility : lor 1 know of no more sure means of promoting civilization and ■ ensuring popular -well-being and contentment — no more effectual method of exciting and maintaining sympathy among dilferent races, sharing the same country and living under the same government, than bv inspiring them with a common love and reverence for Justice and confidence in its administration. The noble altribules and functions of Justice are eloquently summed up in a passage from the works of a gifted modern English Divine,* with which I shall conclude. “ The whole tone and tenor of public morals as affected by the si ate of supreme J ust ice ; it ext inguishes revenge, it communicates a spirit of purity and uprightness to inferior Magistrates ; it makes the great good, by taking away impunity, it banishes fraud obliquity and solicitation, and teaches men that the law is their right. Truth is its handmaid ; Freedom is its child; Peace is its •companion; Safety walks in its steps; Victor;/ follows in its train : it is the brightest emanation of the Gospel; it is the greatest attribute of God it is that centre round winch human motives and and passions turn : —and Justice, sitting on high sees Genius and Power, and Wealth, and Birth revolving round her throne ; and leaches tqeir paths and marks out their orbits, and warns witli a loud voice, and rules witli a strong arm, and carries order and discipline into a W orld, which for Her, would be a Wild Waste of passions.” The Grand Jury then retired, and in a short time brought in a true hill against Francis Anderson, for felony, with which case the Court proceeded. FELONY. Francis Anderson was charged with stealing, on tiie IGtli June last, a double barreled gun, a revolver, pistol, brooches, and other articles, to the value of ,£33 55., the property of J. Wilkes, of Waipawa. The prisoner pleaded Not Guilty. The Crown Prosecutor stated the case for the prosecution, and called witnesses to prove the facts. The jury returned a verdict of Guilty. His Honor passed sentence of six months' imprisonment, witli hard labor. STEALING A SADDLE BAG. A true bill having been found by the grand jroy.— John Gorton was charged with having stolen, on the 15th August last, a saddle bag, the property of Capt. Cariyon. The case was fully proved, and the juty returned a verdict of Guilti). Evidence as to his character was called, from which it appeared prisoner was in the habit of drinking hard at times, but otherwise bore a good name, and the prisoner having said he was drunk at the time, His Honor passed the lenient sentence of throe months’ imprisonment, with hard labor, taking occasion to point out the evils of excessive drinking. TUESDAY, SEPTEMBER 30. MURDER. Nctane te Huilci was indicted with the wilful murder of his wife Hiraina on the 2Gth , May last. The prisoner, who was undefended, plead - .ed not guilty. The case for the prosecution lasted from ten in the morning, till lalf-pasl live in iboevening, but the evidence was purely circmnstantial, and of a very feeble diameter. The prisoner then made his statement, in a bold and confident manner, which agreed . with the evidence given against him, and also .with the statement he made when first charged with this grave offence. His Honor summed up at some length, out to the jury the various phases ,of the case, and the chief points to be considered, in an able manner.

The Jury then retire*!, and after an absence of about ten minutes, returned with a verdict of Not GuiUi/. '■ His Honor'then cautioned the prisoner as to his future conduct, and.discharged him.