SUPREME COURT.

Otago Daily Times, Issue 55, 18 January 1862, Page 2

SUPREME COURT.

Friday, January 17.

KOBBERY UNDER ARMS AT TOKOMAIHIRO.

Patrick Maloney and John Dyer were indicted for having on the night of the 24th of November, 1851, committed a robbery in the house of William Reid.

Mr. Howarth and Mr. Cook prosecuted, and Mr. South defended the prisoners. After the prosecutor had stated the case, they called

William Reid, who deposed to his having been disturbed by a noise in the house on the 24th Nov. After describing the money stolen, &c ,he proceeded to state, —There wore two men, one short ane -the other tall. The little one said, "Take him to the door, and shoot him for tolling a lie." The tall one then fired a pistol close to my car. They said there was another man keeping watch outside, but I did not see anyone. They next asked if they were likely to get any money at Mansford's store. I told them there wore several men about the premises. They then asked for grog, which was given them by Mrs. Reid. They turned their hacks while drinking ; the tall one then asked for the bottle, and took, a drink out of it. They then asked for more. I told them it was all I had in the house. They then asked if I had any lire-arms or balls in the house, and I replied I had'a gun but no balls. They then took the gun away, but left it outside the house. They then ordered my wife to go to bed, and threatened to kill us if we rose before sunrise, and then locked the door. The tall one said his name was Garrett, and addressed the short one (Dyer) as Tat. It was about three o'clock when the men left the house. About daybreak I looked out of the house and saw three men and a boy in an old house apparently cooking their breakfasts and putting up their swags ; having done so, they started on the road leading to Dunedin. All the doors of the house were "shut and fastened the previous evening, and so were the windows. I saw them closed myself and I was the first up in the morning. I cannot tell how the men had effected an entrance into the house. There was a window which was broken on the previous day by a horse. It was covered by a

cloth, but tlicv might have removed it to get in at the window. " The two handkerchiefs (produced) arc a good deal like those- worn by the two men. Cross-examined by Mr. South —The handkerchiefs had eylet holes, one of those produced has not the holes. I cannot swear that it is one of them. The tall man was about two inches taller than the others. Never saw any of, their faces during; the time they were in the house. I only identify the little one from his hands and shoulders, nothing else. To the best of my knowledge, I have never said to any one that I could not identify the prisoners. By Mr. Cook : The handkerchief produced resembles that worn by the taller prisoner. I was a good deal agitated, and could not tell what coloured clothes the men wore. KatheriiiG Abercrombie Held: lam the wit; of the last witness. I remember hearing a noise in the house on the 24th November last. It was about 12 or 1 o'clock in the morning. I struck a match and light.:d a candle. Some one came forward with a red shirt on with a pistol in his hand, and said, "No light here." He came out of another room which was divided by a partition. He said he would blow my brains out if I said a word. He said I would soon know what they wanted. I said if they would spare our lives I would give them what money was in the house. I then took down the box in "which the money was, and put it on the table. I got up to do this, and bade my husband lie down and not to speak. They asked if there was any one in the house besides me and my husband. One of the men loosed the bag and took out the money. I did not know exactly what was in the purse. They asked me if I knew the number of the notes ; t said, no. After this the j taller one said to the little one, " Search the house and find out the sovereigns, for they had got none yet." Tney did so, and did not find them, but came upon my husband's great coat, and found* the church money in the pocket. It was at this time they fired the pistol between me and my husband, and the other one struck the table with a ball fastened to a strap. The little one had no shoes on ; the tall one fired the pistol. After they had found this money they wanted more money, and I had two pounds of my own which I gave them. I never got a look at the face of either of them. I was too stupifled at the time to dentify the handkerchief. Matthew Moses : I remember seeing the prisoners in the mudhouse at Tokomairiro, 200 yards from Reid's house. They were camped there for the night. They said they were coming down from the diggings. By Mr. Cook : They said they were come from Sydney, and were going back. They asked me how many men stayed at Mansford's. The man who sat on his swag I have not seen since. I did not see that they were at all anxious in their enquiries about Mansford's store. Robert Lambert : At the time of the robbery I was in the mounted police. On the 24th, in consequence of information which I had received, I .itarted down from Tokomairiro across the ferry towards Dunedin. I came up to the prisoners about four or five miles this side the ferry ; I took them into custody, and took them to Adams' accommodation house, where I searched them. I searched. MYtlony first ;as I was feeling along the collar of iiis coat, I felt some paper in the back of his collar. I asked him what it was. He told me it was a cheque, and that he had other money about him also. I opened the collar and found a cheque for £GO. He told me he had some money in the knee of his trousers. I opened it and found five £1 notes, and two £5 notes in the lining of his waistcoat ; there was a purse in his pocket with two £1 notes, and five sovereigns ii a small chamois bag in his pocket, also, a £5 note in his swag. Dyev had placed his money upon the table—it consisted of eleven sovereigns and three £1 notes, half-sovereigns and some silver. I searched the boy, and found in the back of his coat two £5 notes sewed up in the lining. The boy said that Maloney was his father. The stitching in the dress of Maloney's and of the boys' seemed to be recent. Cross-examined by Mr. South.—The prisoners offered no resistance. They said they were innocent of the charge. They exhibited no desire to conceal the money on their persons. I identify the handkerchief produced as having been in the possession of the prisoners. St. John Branigan : I am Chief Commissioner of Police. I took the handkerchief now produced from the prisoner Dyer. It is in the same atate now. *

Mr. South addressed the Court on behalf of the prisoners, and called Frank Maloney, who stated—l am 15 years old. Pat Malony is my father. My father had been in Sydney four or five years before he came here. I came over with my lather in August last. Dyer came over in the same -ship. We landed one day and went to the diggings the next morning. The party consisted of othei-s besides Dyer and my father. I don't know how much gold my father and Dyer got. I have'seen it. They sold some, and generally kept it until they had 10 or 12 ounces. They sold it at both Mansford's and Thompson's stores. Before leaving the diggings I knew my father had an order for £60, which he sewed in his clothes.. My father sewed two £5 no: es in the back of my vest. About a fortnight before we left Gabriel's Gully, my father sewed in the knee of his trousers three £5 notes, and some £.1 notes in his vest. He-had some sovereigns in a chamois bag. The money was the proceeds of gold. The night before we started Dyer sewed 11 sovereigns in his coat, and 1 also saw some notes and one or two half sovereigns in his hand in the tent. At the Woolshed we met three other men, one of whom went on before. When we got to the empty house, this man was there ; we were passing, when he called out to us, and told us this was a very good place to camp in. After we had been in, two carpenters came in, one named Matthew Moses. The evidence of this witness was in the prisoner's favour. He accounted for the holes in tho handkerchief that he had been carrying boots in it. Horsfall stated he wa^i mate of Maloney at Gabriel's. They were successful. Maloney was a steady man. They had got about 30 ozs. of gold in five weeks. The remaining evidence of this witness corroborated the testimony of the boy .frank Maloney. Mr. Howorth then addressed the jury, after which His Honor summed up the evidence, and the jury found the prisoner " Not Guilty."

PRESENTMENT OF THE GRAND JURY. The following was the presentment of the Grand Jury at the termination of their labours. May it please your Honor, — The Grand Jmy are glad to find that though the cases brought before them have been numerous, they are fewer perhaps than might have been expected, considering the great influx of an unsettled class of population, amounting to more than 10,000, since your Honor last held a Court here, and that but few of the cases are of a very serious nature. They unite with your Honor in the opinion that the orderly state of society under the very unusual circumstances, is greatly owing to the efficiency of the police force, under the able superintendence of Mr. Commissioner Branigan. The Grand Jury have this day paid a visit of inspection tothe gaol,and regret tonnd that it is utterly inadequate to the present requirements of the Province. It appears that there are at present nearly one hundred inmates, for fifteen of whom there is not even sleeping accommodation. The kitchen is a very small apartment with no more convenience tir cooking than would be considered essential for a small family. One of the dining rooms, which has to serve for fifty men under sentence for hard labour, is only 10 x 14 feet, which renders it necessary for a number of them to take their meals on the open ground. The yards are small and with imperfect drainage, The"re are only six cells for solitary confinement, which are at present used for lunatics, having none at the disposal of the officers of the gaol, for the purpose of exercising gaol discipline. The accommodation of the Governor appears almost to have been totally omitted in the original design, only one room having been apportioned for the purposes of living and working in, not even a yard or water-closet for his use, and no apartment whatever for the senior officer. The whole sys tern of ventilation is extremely imperfect, Altogether the building appears to be so ill adapted to the purposes for which it was intended, and the locality so ill selected, that they entirely concur with your Honor in the opinion that another Gaol on a more suitable site is immediately required. The gaol regulations at present in force appear to require revision. The Grand Jury are also of opinion that an improved system of ventilation for the Court Honse and adjoining room, is urgently required.

Branigan,

CHARLES 11. KETTLE, Foreman Grand Jury.

January IT 1862,

PUBLIC MEETING AT TOKOMATRTKO.

(From our Special Reporter.)

A meeting of electors for the district of Toko- j mairiro, convened by Mr. J. L. Gillies in obedience i to a requisition from certain of liis constituents, j took place on Thursday evening. There were only about seventeen people present, and of these only about twelve were electors. John Dewe Ksq., occupied the chair, and after lie had read the requisition and the advertisement calling the meeting, he called upon Mr. Gillies to proceed. Mr. Gillies said —Mr. Chairman and Gentlemen,—On receipt of your requisition asking- me to call this meeting, for the purpose of explaining to you iriy conduct in the last Session of the Council, I immediately addressed a nolc to my colleguc, Mr. Hardy, asking him to name a day on which it would be convenient for him to attend. To this note I icceivcd no answer ; and after waiting some time I sent the advertisement convening this meeting to the " Colonist" requesting tliem to send it to the " Witness." This they appear not to have done, and I therefore fear that many of the electors are not aware of the mee'iivr. Prforc proceeding to sketch the act's of the last Council, which will necessarily occupy some time, I shall have to refer to the events which took place in the Session before last. Up to the close of that Session Mr. Hardy and myself perfectly agreed. lam sorry that Mr. Hardy is not present this evening, as it wou'd be more"satisfiictory to both parties, and he would then be able to correct me if I go wrong. Neither Mr. Hardy nor myself have differed in principle, only in course of action has there been a difference. When I first entered the House, I determined not to join either party for some time, but to sit quiet and hear what both had to say, and then judge between them.. I may here state that there was at this time no combined opposition in the House, although some members tried to make out that there was, and I was cognizant of no underhand plot or secret meeting, But when the Council met the then head of the Government, Mr. Cutten, endeavoured to raise a storm by attacking what he called the opposition. The day after the meeting the House adjourned for a tew days and Mr. Hardy was most active in endeavouring to ascertain from members of the opposition whether they thought it advisable to throw out the Government. When Mr. Cutton moved the reply I was astonished to hear the style of language in "which the head of the government indulged while attacking the opposition. The reply itself had none of the abusive character which marked the speech of the member who proposed it. The House allowed this to pass without notice but refused to proceed with the business, because the accounts for the last six months had not been either published or audited. Mr Hardy and myself were thcu quite agreed that it was not desirable to go on until they were. Scarcely any of the measures which were to he brought forward were then on the table, or in the hands of the members even at that time. Some of the country members who usually voted with the Government, it is true, hr.d got drafts of them, but none of the opposition had seen them. This was one reason for refusing to proceed with the business, but the government said it was mere moonshine as the Bills had nothing to do with the accounts, and the House, rather than bring matters to a full stop, consented to proceed with the Audit Bill, the Criminals Bill, and others of a similar character, which the Government said did not effect the revenue. I must now tull you that an ordinance had been passed by the General Government requiring the appointment of an Auditor, The Exexecutive at first refused to bring in a Bill to do

this, but after Mr. Reynold's had made a motion in regard to it they consented to its introduction, and they nominated Mr. Kettle. Tiiis was after House had come to a resolution, affirming that it was not desirable to leave the appointment to the General Government. When the Government proposed Mr. Kettle, the [opposition nominated Mr. M'Glashan, but both parties were agre:d that the vote should only be an apparent one, because the head of the Government, Mr. Cutten, hail stated that the Superintendent would not concur in the appointment of the last named gentleman, and by the Ordinance, the concurrence of both the Council and the Superintendent was re-

quired. The mutter was therefore allowed to lapse. Up to this time Mr. Hardy and myself entirely agreed, find as a rule, although there may have been exceptions, he voted with the opposition. At this period, however, an evident change took place in his conduct. The opposition was quite strong enough to turn out the Government, but the members; of the opposition would only take office under the distinct understanding, that as the Government they would recommend a dissolution of the House. Mr. Hardy was perfectly willing to take office with the opposition, but not on these terms. This was the reason lie changed when the Appropriation ordinance was introduced, and^ve were asked to pass a clause certifying that the unauthorised expenditure was correct and necessary when we had not the accounts or any particulars of it before us, when we were asked to indemnify t lie Executive for acts of which we knew nothing. Mr. Hardy three times in that debate spoke against the Government and voted for them. Why did he do so ? Because it was his vote which turne.l the scale. This it was which made Jnu come to the decision that things were not as they should be, and that an appeal to the country was absolutely necessary. When this act was carried the auditors resigned, and they were afterwards repeatedly taunted by the Government with not having done their duty. The real state of the case was, that no opportunity of doing it had been afforded them. Two or three days before the House met, they had been asked to audit the accounts for the six months, but they could not have done it in this time even if they had worked day and night. Several members were asked to accept the office of auditor, and at length Mr. Taylor and Mr. M'Glashcn was proposed by Mr. Walker, and seconded by Mr. Howarth, both members of the Executive. It was the Government and not the auditors who were to blame for the accounts not being audited. There was one passage in the Superintendent's address, which I wish to quote. Speaking of the present Government he says, "I wish no better." Under these circumstances I considered it my duty to move for a dissolution. I did not expect to carry it, but I thought it was due to myself and the district which I have the honor to represent, to make the attempt, as I was convinced that the Government could not work satisfactorily to the country, and that things must sooner or later come to a stand still. I did not at this time expect that another session would take place as soon as it did. In opening this session, His Honour in his address alluded first to the intimation received by Mr. Cutten from the General Government, to the effect that he must resign either his office under them, or his scat in Executive. As an individual the Superintendent had a perfect right to express any opinion he thought proper as to the conduct of the General Government, but he had no right to express this opinion in the way he did in his address at the opening of the House. Mr. Cutten was a servant of the General Government, and they had a perfect right to tell Mm he must either resign one office or the other. When Mr. Cutten tendered his resignation, the Superintendent communicated with Mr. Dick, asking him to accept the vacant seat. He consented to do so on condition that he was allowed to bring in three other gentlemen whom he named, along with him. His Honor replied to the effect that he would accept of this if he could do no better. When Mr. Dick saw that he would only be accepted as a kind of makeshift, and that his Honor had no confidence in the Executive lie had proposed, he at once withdrew his etfer, and the Council was then called together. This was the professed reason for the house being called together, but the address also alluded to many other things which should never have been brought before a meeting called for a special purpose. The reason they were introduce! was to blind members, or to interest them while more important matters were got past. The Opposition were quite willing to assist and support the Superintendent in resisting the arbitrary and unjust conduct of-the General Government towards the Province,-but this was not the time to bring in any measure on the subject. The reasons assigned for refusing Mr. Dick's Executive were first, that Mr. Paterson who, yoii must remember, was elected after his Honor, and therefore possessed the full confidence of his constituency, was a party in a suit brought by the Government, Now, this suit was not against Mr Paterson as an individual,butnsamembero't'aflrm and the suit was in existence long before Mr. Paterson was elected a member of the House. The case had been brought before the judge privately and argued for four hour? and a half; after which his Honor summed up and stated as his opinion that the Government had not a shadow of a case against Mr. Paterson. Mr. Cook, who conducted the case for the Government, asked Ids Honor to give this opinion in writing, which his Honor of course refused to do, saying he only

gave the opinion to prevent useless litigation, hut ihi'.t liii? opinion did not prevent the case being fried. The Government paid the costs, and nothing more was heard of the matter until Mr. Paterson was proposed as a member of the Executive. Mr.. Pittcrson, in the House, had read a letter received that day from his solicitor, expressing his surprise at hearing that the suit had been renewed, as the Government had already tried it as far as was expedient, and had got an adverse opinion. They should have allowed it to stop, but they revived it to serve a political purpose. This, in my humble opinion, was bct'i unjust and disgraceful. Then again the attacks on Mr. M'Glashan were mean and injurious attempts against his character —attempts to saddle him with wilful dishonesty. If it had been found necessary to remove him from the Treasury, there was no imputation on his character, and the Council had passed a resolution approving of his removal, but clearing him of all imputations, and declaring him eligible to office again, and the Government themselves had actually nominated him as Auditor. But the office of Solicitor has nothing to do with that of Treasurer, anil if he was disqualified for the latter he was not for the former. The whole thing was got up for the occasion, because lie was not wanted in the Government. Had the Superintendent and Executive said, we do not think these suitable or proper persons, in our own opinion it would not have been so bad, but they attacked their private character in a way that was perfectly unjustifiable,—especially as it was as a Government they did this, and not as individuals. When I saw this I immediately idemnified myself with them, and we moved an amendment on the reply, in which we simply acknowledged the address, and which was a vote of censure upon the Government. We refused to go on with busine s until a new Government was formed—and when it was we had no confidence in it And we carried a motion recommen/lingadissolution. One useless bill wasp isscd ana then, strange to say, the Council was prorogued When the Opposition were called on to form a Government they of course refused until the insult offered some ofits members wasapologisedfor. There is one other matter to which I wish to refer. It is the reason which was assigned for opposing a dissolution, and which was a most absurd one. It was this; —that the dissolution and a general election would, to quote from the address at the close of the session, "deprive parties of the exercise of a single right to which they were by law entitle.l." This referred to the exclusion from voting of those who were not on the electoral roll. I answer, that until these men have been for some time in the colony and registered, they arc not entitled to this right by law, nor should they be. The law compels registration, and unless they are registered they have no right to interfere in elections. If an emergency requires a general election it does not deprive them of a right. The same thing might have been said when the Superintendent himself was elected, as there were men then who were not on the roll. But the gentlemen opposed to him would not condescend to urge such an objection. Again, I may say that I do not approve of the law by which every holder of a miner's right is entitled to vote for the Superintendent. It was Mr. Hardy and myself who succeeded in passing the Act for giving two members to the Diggings, as the Government had opposed it after the first Bill was thrown out. I do not hesitate to explain my views on the subject of diggers voting as the right-thinking will support me. They have no stake in the country, and are not entitled by right to vote for a Superintendent for four years. From the first day of the session there was an evident desire on the part of the Government to carry on the business by force of circumstances, and by holding the scourge of power above the members. Mr. Hardy entirely agreed with me in this, and more thunonce alluded to it in the House. Their constant expression was, " put us out if you like, we don't want to stay in." " Such expressions were disrespectful to themselves and to the House, but so were all their proceedings. They thought themselves perfect. Such also had been their conduct since that; for instance, when notice of the disallowance of the new Education Bill was received, they ignored the existence of the old Board, and its Secretary, Mr. M'Glashau; and appointed Mr. Hi-slop Secretary for Education, without any authority ; or even communicating with Mr. M'Glashan. Another-instance. I myself sent them a numerously signed requisition to put a stop to the dray traffic across the ferries on the Sabbath, and the answer I received was that the Government did not at present deem it advisable to impede the conveyance of goods to the large population located on the goldfields. Thus they hesitate not to s; orifice obedience to a divine law, on the altar of expediency, and sacrifices on this altar have been their rule all through. (Mr. Gillies here read some extracts from the letter of the correspondent of the Argus, to show the opinion that strangers entertained of the conduct of the Government, after which he continued)—lf, gentlemen, in your opinion I have a°ted wrongly, or even rashly, although I gave no pledge when elected, I will resign if requested to do so by even a bare majority of your number, and if the Governor refuse to dissolve the Counfcih I shall test public opinion by trying it at another election.

The Chairman then read a letter which he had received from Mr. Hardy, expressing his regret at being unable to attend the meeting, and stating that he would be happy to attend another meeting any day they would name. A vote of thanks to Mr. Gillies for his services in the Council and expressing full satisfaction with his conduct was passed un mimously on tile motion of Mr Clark, seconded by Mr. Murray, and after a general wish to me;t Mr. Hardy on some early day had been expressed, the meeting terminated by a vote of thanks to the Chairman.