RESIDENT MAGISTRATE'S COURT.

Southland Times, Issue 1042, 21 October 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

MONDAY, OCTOBER 19th, 1868. (Before Henry M'Culloch, Esq., R.M., D. M'Arfchur, Esq., J.P., and F. Nutter, Ebq., J.P.) CONSPIRACY TO DEFRAUD. H. Abmstbong, deputy Sttpebintendent, v. m'kenzie, axlmeb, amd Sayebs. Mr Harvey for the prosecution, Mr Wilson, Dunedin, for defendants Sayera and M'Kenzie. The hearing of this ease was resumed this morning at 10 o'clock. The Court was as crowded as it was at the two previous sittings. The first witness called was-— . . Neil Ferguson, deputy registrar of the Supreme Court, sworn, deposed — Remembered the evening of Wednesday, 30th September. Was at the Council Chamber. Left it about a quarter past 9, immediately after the tenders were disposed of. Saw Mr Aylmer there that night. Saw a bos, e.iroilar to that on the Court table, there that night. Saw Mr Aylmer between the Council Chamber and Esk-street ; he had a box similar to that on his shoulder. He was going along with several others. Don't know who. In passing, tapped the box, and said, " better let me have that, Aylmer," or words to that effect, and passed on in front of him. I saw Aylmer in the Club, five or ten minutes after that. I did not see the box with him then. I think some one came in with him, but could'nt say who. -. : C» H. Reynolds (one of the proprietors of the Southland Times), sworn, deposed — Recollect the night of Wednesday, 30th September. Was at the Council that evening. Left it some time .about 8 o'clock — immediately after the

postponement of the|iiiicu^^n.^lS.t|^g|(^a the — .An Ayliners^T..Mp.'styinidr>:Kad witblP^m mßS^nJk bo^^miouatjr/pTi' tlie^UouncU ||MeN|||\ thought it larger thaia that now in .Ooujß^* ] but might be mistaken, not having; IP>«s/ particular attention to it. When . jr§j^»i'/ to Ekensteen's corner, Mr Aylmer asked if I would walk across to the Government Offices, till he put the box in the safe, when he -would. -join- me.~--I~ walked over to the outside of the buildings, and waited. I think he went in by thd Superintendent's private door, in frtint; He went in with the box. I walked on towards the Club, and did not see him. come out, but in about a minute he joined me, without the box. We went down to the Club, and X remained there about five minutes. Mr Aylmer left in company with another gentleman. I think . it was Mr M'Kenzie, - but am not certain. I thought they went to play billiards. . . ;,,■'-'"•»■ \: Edmund Bogers, Provincial Accountant, sworn, deposed— l had the duplicate key of Mr Ay liner's safe at the time the tenders were being put in, and up to a few days afterwards. I kept the key in my safe. I did not give or lend it to any person during that ti<ne. It has never been out of my possession, since I first had it, until I gave it to Mr Armstrong. No one could have got possession of it. Clement Morton, (messenger and offic keeper, Government Buildings,) sworn deposed — The Superindents inner door opening from the verandah, was left un locked on Wednesday night 30th 'September. I had left the office about 4 o'clock. Mr Aylmer asked me to leave this door open as be would require to come in to take out the box, which had to be laid on the Council table that evening. Mr Aylmers safe is in the room adjoining the Superintendents office, from which it may be entered* To the Bench.-— Mr Aylmer had a key to the outer door j • . George Smith* Landlordj Prince, of Wales Hotel; sworn, deposed— Becoilecfc Wednesday evening, 80th September'; Saw Mr Aylmer at my house that evening at half past 10. Don't remember who he was with then. He was only in the passage. There were a lot of people walking about the bar and passage, and he did not wait more than 5 or 10 minutes. About 20 minutes to 12 he came again with M'Kenzie. Mr .M'Kenzie asked if I could get, a cab to . take Mr Aylmer home. I said I had no one to leave in the house, and could'nt go for one. They then went away together. On the following night, Thursday, Mr M'Kenzie was at my house, and pretty well all the contractors, between 9 and 12 o'clock. On the following day, Friday, Mr Aylmer Was At my house. He said he bad told the Goyernment^all he knew about it. I don't know, what he was referring to. I said it was the best way, and walked off. This was betwen 3 and 4. Mr Aylmer, when he first came in, said "this is a fine thing this rumor about the tender*/' and then made the remark about telling the Government. I supposed him to allude to the tenders in saying he had told all he knew about it. On the Saturday morning I sold Mr M'Kenzie * horse. He did not say where he was going. He said "if I thought Mr Aylmer was going to : get into any trouble over this I would wait, if I would be of any benefit to him," or words to taateftect. He left £2 with me for Mr Sayers. Cross-examined by Mr Wilson. — He did not say what the £2 was for. 1 He said " I suppose I must give the old fellow something." I remember Mx Shearer being in my house on the Thursday. a I did not hear him saying he could eet information about the tenders if he liked to lay out a little money. I saw Moffett, Proudfoot, M'Kenzie, and others there that night. I heard Proudfoot Bay to M'Kenzie, " I've come down- here to spoil your little game." There wa» some betting going on. Mofiett and M'Kenzie had a bet , first. They wanted to increase the sum — it was five pounds — one tender against another. M'Kenzie named Proudfoot, and Moffat, Shearer. Proudfoot said bet him Moffet, take him. up. M'Kenzie replied, to Proudfoot f "you can take it up if you like." Proudfoot asked me to lend him a hundred pounds. I had not got as much in the house at the time. He then got pen and ink, and commenced to write a cheque, which Proudfoot refused. They were going to bet a hundred pounds. I heard Smyth offer to bet Moffett thatjhe would back M'Kenzie's tender against any other. M'Kenzie said to Smyth, " don't do anything of the sort,. l have not a tender in. They were a little fresh. I had no idea M'Kenzie was running away when he bought my horse. I spoke to him about it several days before, offering to lend it him to ride over to Dunedin, and sell it for me there. He ultimately purchased it, as stated. Mr Aylmer wu the worse of drink when M'Kenzie asked me to get the cab. To the Bench — I did not see Sayers at my house on Thursday night, nor -the night before. Mr Sayers is, I believe, a commission agent, and does writing and such business as book-keeping for people. He has done so for me repeatedly, Alexander M'Collough, auctioneer, sworn, deposed — Know defendants, Recollect Wednesday, 30th September. Saw Mr Aylmer and Mr M'Kenzie together in the Club that day. On the following Friday I was in company with both Mi M'Kenzie and Mr Aylmer, in the Club, at the time the tenders were being examined in the Council Chamber. Mr M'Kenzie had just returned from giving evidence at the Council. He said he thought the tenders were all right. I left the room shortly after that. The same day shortly after 4. 1 again saw Mr M'Kenzie. I made the remark that. some of the contractors had gone in the •steamer that day at 3 o'clock; and asked him when he was going. He said he did'nt think he could well go and leave Aylmer in this mess, or words to that

fltii

effect. On Saturday morning I saw him Steading at the Club. He said he would probably ride overland, as Mr Smith bad offered him a horse he wished sold in jDungdjifl^; I alluded to the conversation of the evening previous, relative to leaving Mr Aylmeri =Mr M'Kenzie said, "it is a ' little awkward .'or Mr Aylmer, but it will - amount to nothing. He said he did not see any good he could do by waiting. . Cross-examined by Mr Wilson — M'Kenzie's name was coupled with Aylmers' in the rumor, and I was not surprised to hear him say he would wait. Wm. Boebuck, contractor, sworn, deposed — I attended a meeting of the tenderers on Thuraday, Ist Oct. I saw Mr M'Kenzie in the Prince of Wales Hotel that day about 12 o'clock. He made no remarks to me about himself. We had no conversation there whatever. I don't remember giving any information "to Sergeant O'Keefe on the day Aylmer and Sayers were first brought up. I may have said something, but don't recollect what it was. I saw M'Kenzie, at the meeting, sign a document to be sou t to the Provincial Government — M'Kenzie pro Hastie. M'Kenzie was wide awake on Thursday morning. [After shuffling replies to one or two questions.] . ;Mr Harvey — Can you remember now whether M'Kenzie made any remark about the state of the feelings. Witness —No, I can't. Mr Harvey — Did he inform you where he had been the night before ? Witness — Yes, he said he felt drowsy as he had been card playing the night before. (Laconically) — "Is that what you wanted?" ■Cross-examined by Mr Wilson — I bought some schedules of quantities from Mr Sayers— -I paid him a guinea for each. I never stated the amount of my tender to any one. I stated several different amounts to Mr Sayers atod N. Campbell. . -Edmund Mortimer, assistant waiter at Club Hotels sworn, deposed— "Recollect Thursday the Fast Day,' lst October.. I . saw M'Kenzie and Mr Aylmer at the Club between seven and eight in the evening. I don't remember seeing them there before that. I served Mr M'Kenzie and Mr Sayers in a private room that day. It was in Mr M'Kenzie's room — a Bitting room. I can't say at what time * they came. Between seven and eight was the time I first saw them. Mr Aylmer was then in Mr M'Kenzie's bedroom, on the bed. I served them with drinks. Mr M'Kenzie and Mr Aylmer, first, in the bedroom, then M'Kenzie treat into the sitting-room. I then went imo the sitting-room and served Mr Sayers and Mr M'Kenzie again. I saw Writing, in the sitting-room. Mr Sayers and Mr M'Kenzie were both writing. The paper they were using was about the size of foolscap. They were both using that kind of paper. There were two or .three sheets of it lying on the table. When I served Mr Aylmer, in Mr M'Kenzie's room, I don't know whether he was under the influence of drink or not. He ' did not speak. He took the liquor off the tray himself, but said nothing. I think Mr M'Kenzie was quite sober, and Mr Sayers too. I was not up in their room afterwards. My time was up at eight o'clock. Cross-examined by Mr Wilson — There was several kinds of paper, I think, on the table. Mr Aylmer was in bed. I did not see him afterwards. He had been out with Mr Jones nearly all that day They returned about seven. I don't recollect where Mr M'Kenzie was when they returned. I did not see the three of them together. I had seen Mr Sayers with Mr M'Kenzie before that frequently. It was nothing extraordinary. To Mr Harvey — I had seen Mr Sayers with Mr M'Kenzie on previous days. I don't remember their being closeted together before that. To the Bench — The door of the room was not fastened. This witness, a mere boy, gave his evidence most intelligently. ; John Blacklock, Provincial Treasurer, sworn, deposed — Mr Aylmer, as clerk to the Superintendent, received and took care of tenders for contracts. He did so in the case of the railway tenders. I was at the Council Chamber on Wednesday night, 30th September. I saw the box supposed to contain the tenders there -that night. Mr Aylmer placed it there. He removed it after the vote for the adjournment o." the discussion on railway matters. The box was not opened in the Council Chamber that evening. On the following night (Thursday) certain representations were made to me. About ten o'clock Mr Armstrong "came out to my house on horseback. In consequence of what he told me, I accompanied him towards town, ani on the way we met Mr Basstian, Mr Packham, and another contractor. At the town boundary we also met all, or nearly all, the other contractors. Mr M'Kenzie was not there, nor Mr Wilson, nor Mr Hastie. We came on towards the Government Buildings. Afterwards, Mr Armstrong, Mr Weldon, and myself, - went to Mr Aylmer's house. This would be between 10 and 11 o'clock. We saw Mr Aylmer. He got out of bed and came to the door himself. We told him we had come for the keys of the safe, and of the box containing the tenders. We told him we did so in consequence of rumors having reached us of the tenders having been tampered with. He said he was very glad we had come for them, gave them up freely, and said " you will find the tenders all right in the safe." Anyone could see he had been drinking. He knew what he was doing quite well, - as he selected the keys from a bunch. We then came away towards the Government Buildings. Before going in, I -.went on, to the Club to get some members -of Council to go in with us. We then :* went'into the Government Offices. There were present — Messrs Basstian and Stewart, members of Council. Mr .Patr "terlon, Sailway Engineer,~Mr - Weldon, Q J Mr ; Ariußticoiig, and myself. We opened

i the safe, took out the box, and opened h. I We found twenty tenders in it. We then I locked ifc.nnd sealed it up with Mr Bassl tian's seal. I'm not sure it was Mr l Basstkn's, but I think he handed it > over. As. the tenders were being res placed in the box, I observed one of them * to be slightly torn. "We did not examine , them. The box was put back in the safe, [ and the safe locked up. Mr Armstrong retained possession of the keys. I saw • the box in the Council Hall the following i day. The seal was still on it. I was ; satisfied it had not beeri opened in the interval. The box was then opened, the tenders spread out, the contractors called on, certain questions put to them, the tenders examined, and again put into the j box and locked up. The first time the j box was opened, the tenders were not particularly examined. They were not opened when placed on the Council table. From their appearance I was quite convinced they had been tampered with. Mr Armstrong has had charge of them, since. Up to the sth October Mr Aylmer had made no statement to me, either privately or officially, with reference to the tenders, other than what he said when giviug up the keys, and than a written statement referred to previously. A letter was written to Mr Aylmer, and he made a voluntary statement in presence of the Deputy Superintendent, the Provincial Solicitor, and myself. No threats or persuasions were made to induce that statement. Cross-examined by Mr Wilson — Mr Armstrong first made representation to me, and I think nearly all of the tenderers did so afterwards. They said something was wrong about the tenders. I did not, from what they said, expect to find the box in Mr Aylmtr's house. I did'nt know exactly what to think. I thought it quite likely it was in the safe. Mr Eodgers had the duplicate key, but up to this time I had always thought the duplicate key was in the bank. Mr .Rogers lives half a mile from where I met the contractors. I had not heard any expressions, before I went down to Aylmer's for the keys, which led me to expect that the box was in his house. I expected it was in % the sate, and found it there. I was present at a meeting with the contractors on the Fast Day. They first stated they had had a meeting at which certain resolutions had been agreed to. They then submitted a certain proposition, and also an alternative one. The Government suggested certain alterations in the arrangement, asked them to get them put in shape, and return in half an hour to get them signed. (Documents produced.) It was suggested that tenderers at a distance might . not be bound by the alterations proposed, relative to a deposite. I was present when Mr M'Kenzie signed the document produced. I think, at the meeting at the Government Buildings Mr M'Kenzie stated he represented Mr Hastie After it was resolved that the tenderers should deposit a £100. Mr Proudfoot proposed that they should withdraw their tenders and send them in again with their cheques. Mr M'Kenzie objected to this. The Court adjourned at this stage for an hour. On resuming, at 2.15. JMt Armstrong was recalled and sworn. He deposed — I produce the box containing the tenders (opening it by direction of Counsel). There are nineteen packages in it. They were originally twenty but some of them have been put together. Most of them are closed with gum. (The tenders were here spread on the table, and handed over one by oae to the Clerk of the Court to be numbered, the witness making his remarks on them as they were passed over. Some of the packets contained two envelopes, bound together with an elastic band, being the separate tenders of the same contractor for both portions of the line, these were numbered on both sides, one side having a letter of the alphabet added to the numeral). The witness continued — No. 1 is endorsed " Aldridge," and appears to have been tampered with. Tne envelope has been partially opened and the seals are broken. No. 2 was received after time, and has the word " received " written across it, the letter *d' is apparently displaced from its original position in relation to the other letters through the envelope having been opened. No. 3 bears the marks of having been moistened with water. No 4 seems reclosed with different colored wax. No. 5, the envelope has been partially opened, and it is discolored as if by smoke. No. 6, envelope torn. No. 7 has a mark of gum round the point of the flap, looking as if it had been drawn back from its original position. No. 8, a double packet, both seals look as if patched, and there is a tear close to one of the seals. No. 9, nothing remarkable. No. 10, a double packet, has both seals patched, and bears marks of smoke about tbe seal of one, the flaps of both look much rumpled. No. 11 is marked " Chas. Abbott ;" there is a circle round the flap of the envelope, and a small tear on the corner. No. 12, nothing remarkable. No. 13, the closing flap looks dirty and rumpled, and there is a broad smear of gum round the edge. No. 14 is torn in one corner, and has a blistered appearance round the flaps. No. 15 has a circular discoloration round the flaps. No. 16, a double packet, has seals broken and cracked. No. 17, a double packet, has a circle round the flaps of each. No/ 18 has nothing remarkable about it, further than being rumpled. No. 19, a double packet, has nothing remarkable about it either. Cross-examined by Mr Wilson — I was one of those who went to Mr Aylmers house after receiving the information from the contractors. I had no suspicions that the tenders were then in Mr Aylmers house. Mr Weldon accompanied us to show where Mr Aylmer lived, as neither Mr Blacklock nor myself knew. W. Eoebuek recalled— l was one of the tenderers, and identify my tenders. One is No. 5, and the other 14. No. 5 appears to have been opened, it is all smoked, marked with gam, and a little

bit torn. It was perfectly clear when I t put it in. No. .14 also looks as if tarn. pered with. It is torn and crumpled. Cross-examined by Mr Wilson— l ; made up these packets myself in my own • office. I took them to the Government Offices myself. i James Shearer, sworn, deposed — I identify No. 8 and Ba. as my tenders. ; No. Bis not the same as it left my hand. The wax appears to have been patched round the edge, and pressed down again. I consider from its present appearance that it has: been opened since I put it into the Government Buildings. I have examined the second one,' No. 8a; The envelope is torn, and fresh' wax has been put on it since it left my hand. I have no doubt" it has been opened. Cross-examined by Mr Wilson— The centre seal is the same as I put on. I I believe it has been opened. I never in my life, either in George Smith's house or anywhere else, said that I could have got information about the tenders had I liked to expend some money, nor words to that effect. I told Mr Armstrong of Mr Aylmer having called on me. Samuel Packham, sworn, deposed — I was in partnership with Abbott in tendering for the railway. On Thursday night, the Ist of October, I observed Mr Aylmer in close conversation with Mr M'Kenzie, and consequently lost confidence in the gentleman who held the key of the box, and took measures to have the keys of the box secured. I can recognise our tender. No. 11 is it. I did not seal or address it — my partner did — consequently I cannot swear to it particularly, but it appears the same as when I delivered it to Mr Aylmer. It looks dirtier and a little torn in one place. Mr Wilson (to witness)— Things generally do get dirtier the more they are handled, don't they. Witness — Yes, if they passed through your hands often they might. (Laughter.) Mr Wilson — Well, perhaps you won't be so clean when you leave them, after that. Mr Wilson — What is the amount of your tender ? Witness— l can't Jtell exactly without referring to my memordum book, and if I could I would'nt tell you. (To the Bench) — Am I obliged to answer him that question ? Mr M'Culloch— No. Cross-examined by Mr Wilson — I never told anyone the amount of our tender. Proudfoot told me his was about £17,000; Abbott never told me he had told anybody about the amount of ours. There was a resolution brought forward at the meeting of contractors to with draw tenders. I asked the Superintendent to allow me to withdraw my tender, to enable me to place the deposit inside. We did not wish to withdraw it altogether, and could have done all we wanted in presence of the Superintendent. I never heard Proudfoot tell Abbott the amount of his tender, nor heard him say that if he could get his tender back, he could alter it so as to 'sell' M'Kenzie. I did not tell Abbott Proudfoot had told me the amount of his. I believe my partner stated at the bar of the Council that he did not think our tender had been opened, but only tampered with. I certaiuly did not want to take our tender away altogether, merely to put in the deposit. The proposal did not originate through my having had a conversation with any one. Mr Harvey now applied for a remand till Thursday, in order to allow of the arrival of Mr Proudfoot, who had telegraphed that he would leave that afternoon. Mr Proudfoot had been detained in Dunedin on a Judge's order, to attend an important arbitration case, or he would have been present then. Mr Wilson objection to such a delay. He considered that after the examination of so many witnesses, there must be sufficient evideuce to form a prima facae case, and if not, the case ought at once to fall to the ground, as he thought it would do, unless Mr Proudfoot's evidence was much more conclusive than any that had ytS been heard. He contended his learned friend was bound to state the nature of Proudfoot's evidence, for the guidance of the Bench. The Bench would not grant a remand till Thursday. Mr Wilson wished a remand till the following morning, to allow him to prepare his defence. Mr M'Culloch -If we remand at all, we will remand till Thursday. Mr Wilson — Then we will go right into it now. The learned counsel then addressed the Bench for more than half an hour. He said ! the whole case was a most miserable I trumped up affair, originating iv the minds of certain parties who seemed possessed of guilty consciences and suspicious minds. It was a petty prosecution of a petty province of a petty state, resting solely on the fact that certain gentlemen, known to be interested in the tenders, had been seen on one or two occasions by other tenderers, in close conversation. They are seen talking, or in a room together, and up goes the cry, " Oh, a conspiracy is being hatched." He believed in this case the result of the incubation would be an addled egg. He believed the Government were heartily sick of the matter, and regretted having yielded to the pressue brought to bear on them. The fact was they were hounded on, first by the contractors — the suspicious ones — who rushed to them, saying, " there's M'Kenzie and Aylmer talking, they must be opening the tenders ; you must take the keys from Aylmer, &c," and then the opposition members in the Council had taken up the bullying. This could not/ be denied, forit was reported that certain resolution had been brought on in the Council on the matter, which the Government distinctly said they would regard as a no confidence one, Iv short ifc'was the old story of the Mountain laboring to bring torth a mouse. He then commented on the main points of the/iepositions^eontending that the only

thing really proven was that Mr Aylmer had been guilty of a very serious indescretion, which he no doubt bitterly regretted, for which he had been dismissed from his office, and had otherwise already suffered sufficient punishment. His clients had, however, not been in any way connected with it, riot by the slightest title of evidence. He felt confi lent there were not six men in the Court who would send the case to trial. Certainly, in Otago, no jury could be scraped together which would convict on such evidence, he did not know whether one could be got in Southland that would. After indulging in a few sneering allusions to the reputed poverty of Southland, and quoting voluminously in support of his arguments, Mr Wilson concluded by assuring the Bench he felt it unnecessary to remind them that they should be perfectly unbiassed by anything heard outside the Court, and that he left the case with the utmost confidence in their hands. Mr Harvey replied shortly on points of law, quoting from the highest legal authorities cases .in refutation of Mr i Wilson's arguments, chiefly with regard j to conspiracy, after which the Bench retired for ten minutes. On returning into Court the defendants were cautioned in the usual manner regarding any statement they might make. Mr Aylmer said — " acting under legal ad vicejl decline to say anything. I have only to state that I am quite innocent ot the charge made against me.'' The other two accused declined to say anything. Mr M'Culloch said they had carefully considered the whole case, and were of opinion there was evidence sufficient to warrant the case bang sent to trial, inasmuch as there was evidence adduced j on which a jury inigkt convict. The] accused would therefore be committed for trial at the next sitting of the Supreme j Court. All the defendants were admitted to bail in the same amounts as ' formerly. Their surities were at once • nominated to the satisfaction of the Court.