SUPREME COURT.

Manawatu Herald, Volume XXXII, Issue 813, 17 February 1910, Page 3

SUPREME COURT.

PALMERSTON SITTINGS. TWO CRIMINALS SENTENCED. Charles Cannon, alias Watson, alias Cripps, and Walter Riley, who were found guilty, the latter of breaking and entering and theft, and the former of receiving stolen property, were brought before his Honour Mr Justice Chapman for sentence on Tuesday. Riley’s career has been one of continuous crime. It was as follows : —June, IS9B, breaking and entering, Auckland, sent to Industrial School; September, 1900, vagrancy, Hampden, 30 days; February, 1901, theft, Oamaru, three months; May, 1901, breaking and entering, Dunedin, 15 months; November, 1901, theft, Dunedin, 12 months; November, 1902, attempt to break prison, Dunedin, two months ; September, 1903, vagrancy, Christchurch, three months; June, 1904, theft, Christchurch, three months; November, 1904, assault and robbery, Christchurch, three years ; July, 1907, vagrancy, Christchurch, three mouths ; November, 1909, receiving stolen property, Auckland, two years. Cannon’s career as a criminal started in Palmerston in 1904. He then was sentenced to fourteen days for theft and one month for vagrancy. Later on he received a sentence of five years for assault and robbery in Palmerston, and again in 1909 he received three months for vagrancy. “ Looking at the facts,” said his Honour, “ You have had a continuous criminal career, even if there may be some error in the details of the record. As for you, Cannon,” continued his Honour, addressing the other prisoner, ‘‘ you are an older man. There is one conviction against you which shows the crime must have been a very' serious one. The other convictions tend to show you live an idle and disorderly life. As to this particular crime I cannot differentiate between stealing the goods and receiving them, knowing them to be stolen. You will both be sentenced to four years’ hard labour.

alleged perjury. Roland Hayes and William Smith were charged with perjury. The charge was that on June 14th, 1909, they swore that John Barr gave them a permit to shoot ducks on Kemp’s lagoon, owned by Mr H. Akers. The charges were taken separately, Hayes going into the box first. Mr C. A. Loughnan appeared for the Crown, and Mr T. M. Wilford, M.P., for the accused. The facts centre around the opening of last shooting season. John Barr and party had gone to Mr Akers and obtained permits to shoot on Kemo’s lagoon on his property. They got there on March 31, and shot for the next two days. The two accused had shown a permit, lost by Wilson, one of Barr’s party, and alleged to have been found by Hayes, who said that Barr had given it to them. It had afterwards been ascertained that the two accused had no right on the shooting ground, so Barr asked for half the ducks shot by the trespassers. This was refused, and Mr Akers afterwards laid information against Smith and Hayes for trespass and damage. Both cases went against accused, and it was in the hearing of them that the alleged perjury was committed. Mr Akers devoted the proceeds of the permits to the hospital. Mr C. A. Loughuan, in opening the case for the Crown, pointed out that the essential elements of perjury were that the statements made were false, that it was made upon oath in a judicial proceeding and with intention to deceive. Mr Loughnan then traced the history of the proceedings, which were that at the opening of the shooting season in May last four men (Barr, Wilson, Neilsen and Dahl), got the sole rights to shoot on Kemp’s lagoon on Mr Hugh Aker’s property at Liutou. When shooting there they discovered the accused shooting, who, ou being questioned, said they had received a permit, and produced one made out to Wilson. The subsequent Court proceedings for trespass were the outcome of accused’s presence on the lake that day, and in those proceedings the alleged perjury was committed. The accused then swore that they had been given the permit, but Wilson stated he had lost it, and had not given it to them. Cecil J. Hewlett produced the records of the first action against accused, and gave evidence as to hearing accused say he had received the permit from John Barr. Constable Russell gave evidence as to administering the oath and hearing Hayes state on oath that he had received the permit made out to Wilson from one of the party. To Mr Wilford : He did make a mistake in administering the oath on one occasion ; thought it was to Hayes. It was in the taking of the depositions iu the criminal case.

Duncan White, called, gave evidence as to accosting accused about not having a permit and as to their answer.

John Barr stated that he had not given the permit to either Smith or Hayes. To Mr Wilford: He was absolutely certain that he had not given them the permit when assisting them to launch the canoe, because he did not have it to give. He had not used the expression, “This will see you good,” to .Hayes or Smith. So far as he

knew it was not a Canadian expression. He himself was a Canadian.

David Wilson stated that on the evening ot the 30th he received his permit at Air Aker’s homestead, lolded it up, and put it in his waistcoat pocket. From that time till he saw it produced in Court he never set eyes on it. The only way he could have lost the permit was when he was working at building a raft, which was near the place where Barr had assisted Hayes and Smith to launch the canoe.

To Mr Wilford : His party had had bad luck, and had only got seven ducks between them. Accused had got a good bag, and witness’s party demanded half the ducks, as they considered they had the right to the lagoon. Witness was not anywhere near when Barr was assisting to launch the canoe, and if he had given accused the permit then, witness would not have seen him.

After the case for the Crown concluded Mr Wilford, for accused, contended that the oath had not been properly administered on the ground that the Evidence Act limits the authority to administer oaths to the several parties named in such Act, and that without direction from the judge to the constable before administering the oath, the same is not properly administered, Consequentiy, if the oath was not properly administered there could be no false sweating. Mr Wilford’s second point was that under the Crimes Act for a charge of perjury there must be corroboration of contradicted statements. Mr Wilford contended that the evidence submitted by the Crown was not corroborated on the point on which the charge of perjury rested. This was fatal, he contended, to the prosecution, and he asked that the case be withdrawn from the jury without the prisoner being called upon for his defence.

Yesterday his Honour delivered judgment on the points raised. In regard to the first he said that Mr Wilford had raised the objection that the oath was not administered by a competent person, a constable not being one of the persons empowered by the Evidence Act of 1908 to administer the oath. “This may be conceded,” said his Honour, “but every Court has power to administer an oath, and the customary procedure is to leave it to be administered in the presence of the Court by any officer of the Court or by any peace officer on duty in the Court, or by any person whom the Court may order to administer it. When any person thus openly puts the proper form ot language to a witness and he assents to it in the customary manner, he is treated as having repeated that language just as he in fact repeats it in the forms used in the Act. That is what is meant by a Court administering an oath, special additional powers to administer which are expressed or implied in the several statutes constituting inferior Courts of the Dominion.”

“A further question was raised as to whether the evidence was sufficient to support the indictment. The evidence alleged to be false," continued his Honour, ‘‘is that accused stated at the joint hearing of a civil action for trepass and a prosecution for the same cause that one John Barr, on May ist, 1909, gave him a permit to shoot ducks on Kemp’s lagoon, the property of one Akers. Barr swears that it is untrue that he gave accused such a permit. The permit produced by accused at the hearing belonged to Wilson, one of a shooting party of four, consisting oi Barr, Wilson, Nielson and Dahl. The proof of the alleged perjury thus far is the oath of Barr against that of the accused. Is that witness’s evidence corroborated ? Wilson had the permit in his waistcoat pocket the night before when he went into camp with his shooting mates. It was nis permit and contained his name. It would not protect anyone else, but that circumstance is immaterial as it is the permit referred to all through and sworn to in accused's evidence. Wilson had no idea what became of it, or how it got out of his pocket, beyond a conjecture that it may have fallen out. If it fell out, accused or Barr, or any one of the several others might possibly have picked it up. The suggested corroboration is that accused siated that it was given to him by Barr in Neilsen’s presence and that Neilsen denies this. This is hardly made out. Accused said that Neilsen was close handy when Barr gave him the permit. He does not say that Meilson saw this done or was party to the conversation in which it was done. This is not, in my opinion, sufficiently substantial. Corroboration must result in something which substantially out-weighs the contradiction offered by the original evidence to that tendered for the prosecution. Neilsen’s evidence falls short of proving that if it is believed that of accused cannot be true. That of accused and that of Neilson on this point may both be true. A further element of suggested corroboration is that accused swears that Barr gave him Wilson’s permit and that Barr’s denial of this is supported by Wilson. Wilson’s evidence does not support this. He can give no account of how or when he lost his permit. Beyond Barr’s evidence there is nothing to prove that Barr had not picked it up. But something beyond Barr’s evidence is what is required to turn the scale There is, to my mind, another question which might prove fatal to this prosecution, which I think it is necessary to mention. By consent a civil action and two criminal informations

were heard together. One oath was administered to accused. I have no doubt this was correctly administered in thecustoraary form. There were, however, three proceedings before two Courts. These Courts are very differently constituted and have different procedures. For instance, when asked to do so, justices are bound to order all witnesses out of Court at any stage, while a Magistrate sitting in his civil jurisdiction is not so bound. It is very doubtful if a witness is properly sworn who is merely sworn without reference to the Court on the case in which he is sworn. It will be noted that neither Court nor cause is mentioned in the indictment, which only refers to “ a certain judicial proceeding.” The form of indictment in the Schedule of the Crimes Act treats these as essentials. That defect might be curable by amendment, but I should have a difficulty in determining what amendment to make were I asked to remedy it. The essential allegation is that the statement was made with intent to mislead some Court, and the Crimes Act and the general rules as to particularity seem to suggest that we oug'n to be told which Court. So far I feel pretty well satisfied that without some curative provision this prosecution would fail. What I do not decide, however, is whether this defect is, or is not, cured by section 130, sub-section 5. It is possible that the very wide language of that sub-section might not be found wide enough to effect the case. As to this I express no opinion, but advise the Magistrates to consider this when asked to hear several cases under different jurisdiction together and to examine a witness under a form of oath which does not indicate to which tribunal it relates. This difficulty struck me when I was asked by both counsel to try these cases together. I could find no provision in the Crimes Act to justify mv doing so, and accordingly declined to adopt the suggestion.” Both Smith and Hayes were then realeased.

CASE AGAINST BORANOFF

Leo. Boranoff, was charged by the Crown with indecently assaulting a little girl ot under twelve years. The jury returned a verdict of guilty. Boranoff pleaded drunkenness in excuse for the crime, and asked for leniency on this account. Three previous convictions against the man in New Zealand were mentioned —one in Wellington for false pretences, when he was fined in default 21 days ; the next was in Foxton where he received six weeks’ on two charges of false pretences, the sentence to run concurrent.

The police submitted a long list of offences alleged to have been committed in the United Kingdom by Boranoff. These had been forwarded from Scotland Yard, together with finger prints corresponding with those of the accused, and a photograph which bears a strong resemblance to Boranoff, who was then known as Albert Burnestine. His record from Home is 21 days in 1906 for theft in London, eight months in 1900 for theft in Edinburgh, twelve months in 1902 for fraud in Edinburgh, three months in 1906 for theft in Edinburgh, twelve months in 1906 for theft in Aberdeen. In passing sentence his Honour said that he was satisfied that accused was in a state of intoxication at the time the offence was committed, but this was no excuse for the act. In his position as judge it remained to proclaim it throughout the Dominion that children were to be protected from men in this condition, who, if they did not have control over themselves, should keep away from children. Accused was sentenced to three years' imprisonment.