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THURSDAY, MAT 13.

BEGINA T. AYLMER, M'KENZIE AND SAYEBS. His Honor took his seat this morning at 10 minutes past 10 o'clock. Mr Barton applied for the defendants being allowed to stand on the floor of the court. His Honor said, that as the case was likely to be a long one, it would be hard to compel defendents to stand in the box all the time, in consideration of which, and for convenience sake, be would allow them to be seated near their respective counsel. They would reqnire, however, to remain in the box until they had pleaded to the indictment. The Registrar then put the question guilty or not guilty, defendents having j been arraigned the previous day, to the defendents separately when each returned the plea of not guilty. Mr Macdonald appeared as prosecutor on behalf of the Crown. Mr Barton intimated that he represented M'Kenzie, and Mr Harvey that he defended Aylmer. Sayera undertook his own defence. , The names of the 24 jurors summoned were then called, ten of whom were challenged on behalf of the defendents and three by the Crown Prosecutor. On the list of those rejected being again called | over, the objection to the first name was withdrawn by Mr Barton, so as to allow of j the requisite number being made up. The following are the names of those ! empanneled. Adam Brown (foreman), John M'Crostie, William Mitchell, George Langlanda, j Henry M'Lean, J. Cavanagh, Thomas Hunter, John Lindsay, John M'lntyre, James Hannah, James M'Hardie, John Brook. On the application of Mr Barton, all witnesses were ordered out of Court, an exception being allowed in favor of those officials whose presence was necessary to carry on the business of the Court. Mr Barton, applied to have the indictment amended, stating that it did not distinctly enough fix the time or manner in which the alleged fraud had been committed, or who was to be defrauded. He held the prosecution was bound to speak positively and definitely on these points. His Honor did not see on what grounds the application could be made after the defendenta had pleaded. If there were defects in the indictment, there were two ways in which counsel for the defence might take advantage of them —by demurrer or arrest of judgment. Mr Barton would not press the point, but requested His Honor to take note of the application. Mr Macdonald, in opening the caae, addressed the jury but briefly, giving an outline of the facts, and of the evidence he intended to produce. He also went over the principal counts in the indictment, making a few remarks on the prominent features as he proceeded. As the case is likely to extend to great length, we must confine the remarks of counsel to the narrowest limits. Mr Macxionald then called Mr Henry Armstrong, farmer, who on being summoned, deposed as formerly. As the evidence of the various witnesea in this case has already been given in full in our columns, it will be unnecessary to reprint the whole, now, especially as the circumstances of the case must be familiar to most of our readers; as, however, the evidence of Mr Armstrong Contains nearly ail the facts of the case for the prosecution we give it again in full. Henry Armstrong,' sworn, deposed — I was Deputy Superintendent of Southland. Know Mr Aylmer. He was clerk to Superintendent. In that cap»cjty_jie_had^

generally charge of tenders. The tenders for finishing Oreti Railway were received by him. It was my intention to have put them in a bos in my own room. I had some conversation with Mr Aylmer about their custody when they were coining in. I said I wished the tenders to come into my room, to be placed in a box there. He said he had always been in the habit of receiving them, that it was a very disagreeable thing to have to do with tenders, people were already beginning to talk about it. I said very well, as you have been accustomed to take charge of them, do so on this occasion. Mr M'Clure was present. He was a member of the Executive. He (Aylmer) received the tenders, and placed them in a box, according to instructions. Ido not know that he actually placed them in the box, but he bought a box for that purpose. I never saw the tenders till the box was opened on Thursday night. On Wednesday night I saw the box supposed to contain the tenders laid on the Council table. It was afterwards taken away. On Thursday night, Ist October, in consequence of certain information, I went to the police station, and, afterwards, in company with Mr Blacklock, I went to Mr Aylmer's house. It was about half-past ten o'clock. I saw Mr Aylmer, and asked him for the keys of the box and safe. He gave the keys at once. He said he was very glad I would take charge of them. There were several other keys besides the key of the safe and box, 5 or 6 altogether. After I received the keys I went to the G-overnment Buildings with Mr Blacklock, Mr Basstian, Mr Steuart, Mr Weldon, Mr Patterson, Engineer. I had the keys. I opened the safe, took the small box out, and found the tenders in it. I counted them, and looked at one or two. They appeared to have been tampered with. The examination was rather hasty. We locked them up, bound the box with red tape, and sealed the ends. After Thursday night, Ist October, the box containing the tenders was in my charge. I took it to the Council Chamber myself on Friday, 2nd October. It was then examined by Messrs Basstian, Steuart, Blacklock, and Mr Patterson, as to the seal. It was found intact. It had not been opened. The Council afterwards went into Committee ; the box was opened and the tenders laid on the table. The tenderers were then called in one by one, to identify their tenders. I was standing by the tenders while they were on the table. I saw each tenderer sign a deposition. I heard the statements made by the parties. Mr M'Kenzie was there, and was examined. I would recognise his statement and signature. This is it — produced. Mr Barton objected to this statement being put in, being an admission which might have been extracted from M'Kenzie; the council having power to compel evidence. Mr Harvey also objected, and applied for leave to ask witness two questions to elicit whether the tenderers had been called before the Council with a view to ulterior proceedings. Mr Armstrong said they merely called to speak to the state of their tenders. Examination continued— Three of the tenderers, I think Aldridge, Abbott, and Proudfoot wrote their names on the back of their tenders. The box was locked up by me in a safe until it was delivered over to the police, at the second sitting of the Resident Magistrate's Court. In that Court the condition of the tenders were examined ; they were not opened the first time. I identify the box now on the table as the box containing the tenders. The seal is intact. Cross-examined by Mr Harvey — Some tenders, four or five, came from Dunedin by post, before the day fixed for receiving them. I did not know of my own knowledge, before taking charge of them, how many tenders had been sent in. I was not aware that the safe in which the box was kept was seldom locked until it came out in evidence in the Resident Magistrate's Court. lam not aware that Morton, the messenger, had free access to that safe. I have no recollection of Morton ever giving me any information about anything having taken place with regard to that box. I never asked him, and he never told me. By Mr Barton — I was acting as Deputy Superintendent for about two and a half month's subsequent to the transactions already spoken of. The Government were not then in a condition to accept a tender for cash payment ; some modification or condition with regard to land payments would have been necessary. Ido not know even now who was tbe lowest tenderer. I was not present when the tenders were opened, I have heard who was lowest but forget. A fresh batch of tenders were called for by advertisement to the public generally. They were not to -be confiaed to the competition of those persons who had tendered in the first instance — the only difference being that we did not advertise in Australia. One of those second tenders was accepted. David Proudfoot's was not the successful one. The Government did not communicate withhim for the purpose of eiving him the contract. None of the contractors had tendered strictly in accordance with the specifications, and it was only that his offer, along with several others, might be brought in proper form I before the Coincil. The Government did not accept, ; it was the Council. I don't understand what you mean by keeping Abbott and Packham in the darfc about our communication with Proudfoot. Packham did complain afterwards about it, and the Council censured the Government for what they had done in the matter, although the Government had done it for the interest of the Province, certainly not for the contractors. At the time the second tenders were sent in we had not the light even to give land in payment ; the negotiations for that purpose were only, going on. The night we got the key from Aylmer and went to the Government Offices to look at the box, we took out some of the tenders and

Re-examined by Mr Macdonald — I am not aware whose duty it was to ha^e the • ife in which the box waa kept, regularly locked. I suppose the Superintendent's clerk waa the responsible person. Mr M'Kenzie's statement was now put in and read, no further objection being made to it on the part of dependents counsel. The statement was simply this — That M'Kenzie had not tendered in his own name, but ou behalf of a Mr Wilson, and that he had also acted as agent for Mr Hastie, for whom he put in a tender. He could not identify the tpmler of Wilson, as he had not addressed it, but he recognised that of Hastie, and considered it was in about the same condition as when deposited by him. The next witness called was Clement Morton — I saw Mr Aylmer about halfpast eleven at night, after leaving the i Council Chamber on the 30th, at my house at the rear of the Southland Club Hotel. He said he wanted to go into his office. I went with him to the office. He said he wished to go to the safe. By his request I lit a lamp : he went to the safe and took out the tender box. He said he was going home. He did not go in the dirsction of home. We left the office together. We went up to the Club. He went in there. The box was in his possession. I saw M'Kenzie in the

hall of the Club. I went into the bar and had a glass of wine with Aylmer. When he seemed to be starting for home he addressed either or both Dr Monckfcon and M'Kenzie, Aylmer saying, " come on." They continued conversing. I left them there. The box was in the hands of Aylmer. On leaving the office I pulled the door to, being a self- fastener. It requires a key to open on the outside. I believe Mr Aylmer had a key besides myself. I was at the office next day, but did not see Aylmer. lam not aware whether Aylmer went to the office that day. On Friday, 2nd October, I saw Mr Ajlmer as usual at the office. Mr Aylmer was at the safe, and not seeing the box I asked him where it was. His reply was he placed it there on Wednesday night, after he left the Council, and had not seen it since. I did not know then what had become of the box. It was between 10 and 11 in the morning. The Council was not sitting. I do not know who opened the safe that morning. Cross-examined by Mr Harvey — Both Aylmer and I have been for some number of years in the employment of the Government. It was nothing unusual for Aylmer to take charge of the tenders. 1 consider that due care has not always been taken in keeping tenders. They have never, to my knowledge, before the occasion referred to, been locked up. For months at a stretch the safe in which the box waß, was allowed to remain unlocked. Aylmer was present when I counted the tenders, and knew I did so. Mr Aylmer, had, some time before, kept in the same Bafe, a small tin box with private papers of his own. On the night in which he took away the box, he walked openly with it bo that everybody might have seen it. For a long time Aylmer was nearly always under the influence of liquor. On the night in question I don't think he did know exactly what he was doing. When I saw him again on the morning of the 2nd he was also under the influence of drink, and did not seem to remember what he had been doing. There waa a duplicate key to the safe. I did not know who had it. Be-examined by Mr Macdonald — I conclude that Aylmer did not know what he was doing, from the fact<that on the morning of the 2nd, when I enquired about the box, he appeared to have forgotten what took place on the evening of the 30th, and was evidently surprised when I mentioned it. To His Honors — I have said that Aylmer sometimes had a box of his own in the safe. On the evening of the 30th there was only one box there. The Court adjourned at this stage for half an hour, hia Honor intimating that, if counsel did not object, he would sit both later and earlier than the usual hours, so as to get through with the case before Sunday, to allow of the jurors getting away. It was agreed that the court should sit late, but not commence in the morning before the usual time. The Court resumed at 10 minutes past 2 o'clock. Mr Barton intimated that during the adjournment it had been arranged that he should appear for Sayers as well as M'Kenzie. Mr Macdonald then called C. H. Eeynolds. Nothing was brought out by the examination of this witness, further than what has already appeared in our columns. To Mr Barton — M'Kenzie was living at the Club. Edmund Rogers, Provincial Accountant, was the next witness sworn. His evidnece was substantially the same as that given before the Resident Magistrate. Cross-examined by Mr Harvey —l have been in the Government service for 6 years. Aylmer was there before me. He has always taken taken charge of the tenders. I am not of opinion that Aylmer had been drinking heavily for a long time before the 30th September. To Mr Barton — I am always perfectly sober myself. I have been in a position to know whether Aylmer was drinking. Never saw him drunk during office hours ; never Baw him helplessly drunk at all, but have been him of an evening occasionally under the influence of liquor. The 30th was a holiday. Mr Aylmer about the time in question was drinking rather free. By Mr Macdonald — I am not sure whether it was the 30th September or Ist October that was a holiday. James Colyer sworn — deposed to Aylmer and Sayers coming to his house, enquiring for Mr Shearer, on the night of 30th September; His evidence was a repetition of that formerly given. Win* Lambert, driver^fprMr Ludlam.

and Bayers from the Club to Aylmer's house, about midnight on the 30th September. Nothing new was elicited from this witness either. Cross-examined by Mr Barton— Mr Aylmer was in liquor when I drove them home. I don't know what M'Kenzie meant wlion ho said " don't say anything about if." He might hare referred to Mr Aylmer being drunk, or to their goinu homo together so late. Mary Ann Qualter, sworn, deposed — .Have been in charge of Aylmer's bouse and children for two weeks. Slept in his house on "Wednesday night, 30fch Sept. I heard Mr Aylmer come home that night about 12" o'clock. I heard Mr Aylmer's voice and another. I could not say there were more than two. I first he'ard the front door open and some one go into the dining room. Mr Aylmer then went through the passage to his bed-room. Then I heard footsteps moving in the dining room. Then some one walked through the passage into the kitchen. I fell asleep soon after. Towards morning I heard the front door opening. Can't tell how long before I got up. I rose about 7 o'clock. I had occasion to go into the dining room about 8 o'clock. I saw some pieces of wood on the dining room fireplace, which were not there the night before. I missed a billy off the mantelpiece in the kitchen. It was there the night before, clean and clear. Some wood had also been taken away from the kitchen. Some saucepans had' also been taken from a cupboard, and were on the floor. In the dining room I saw some cushions from the parlor laid on the dining-room couch. There were some ashes strewed on the hearth. *A fire had evidently been on the previous night. I found the billy mentioned hanging on a nail in the kitchen. It was black, and had a little water m it. On the dining-room floor there were some very small pieces of paper lying about. On the table there were some pens and an ink-stand. Mr Aylmer left shortly after 8. I did not see that box (on the table of the court), that morning. Cross-examined by Mr Barton — Mr Aylmer and Mr Sayers are neighbors. 1 did not see them together on the 30tb. I did on the Ist of October, but am not positive. What I said before is more likely to be correct, the circumstances being then fresh in my memory. John Ross (a new witness), merchant, i sworn, deposed — Know all dependents. Know Aylmer's house. Live in the neighborhood. Eecollect the Past Day, Ist October. I saw Sayers and M'Kenzie pass in front of my house towards the Bluff road, about 8 o'clock in the morning. 1 observed nothing particular. I think they parted a few hundred yards further on. Cross-examined by Mr Barton — Ifc is about a mile from Ludlam's stables to Aylmer's house. lam a member of the present Government. To Mr Macdonald — I was not a member of the Government at the time of the occurrence now being investigated. W. J. Moffett, contractor, was the next witness. His evidence was just a repetition of that given before the Resident Magistrate. I Mr Barton cross-examined the witness at considerable length, principally as to i the time it would take to make out tenders, schedules of quantities, &c, for the Oreti line. Nothing, however, was elicited to affect the evidence in chief. To Mr Harvey, through His Honor — ! There was a general impression amongst the contractors that the Government would not accept any of the tenders sent in, but call for fresh ones — that the first call for tenders was merely a feeler. John Lambert, express-driver, repeated former evidence. | Cross-examined by Mr Harvey— There was no appearance of concealment of their actions on the part of Aylmer and i Sayers, on the night of the Ist, when I 1 was called to the Club to take them i home. Mr Sayers seemed anxious to get i away. All called out Aylmer by name. Aly mer was under the influence of liquor. John Dalgliesh, Manager Bunk of Otago, deposed as before. Cross-examined by Mr Barton — 1 think M'Kenzie had been drinking that night. He had no conversation with me about financial matters. Contractors are sharp men generally. When they want accommodation, they no doubt wish to make bankers think they are very amart. I think contractors in the colonies are a rather bouncing lot. I don't know that it was generally thought none of the first tenders would be accepted. The Government, the contractors, and the tenders were the absorbing topic of conversation at the time. A. J. Smyth was the next witness ; his evidence was virtually the same as formerly given, but being important, we reprint it. He deposed — I was not a tenderer for the Oreti Railway. I know James M'Kenzie, the contractor. On Thursday night, Ist October, I had a conversation with him, between 10 and 12 at night. A number of the contractors had met at the Prince of Wales ; some angry words passed between M'Kenzie and Proudfoot. We tried to keep it quiet. Mr Proudfoot left, and I said to M'Kenzie, you have got some information about the tenders, what are they ? He called oat some figures to me which I took down on a piece of blotting paper, and afterwards copied on to a piece of paper (produced). The figures were the amount of different tenders. I said, old man, you have made a fool of yourself, you are found out, the Government have taken possession of the box. He jumped on the f oor, and dashed his pocket book down on the ground. The book contained papers, &c. To Mr Harvey — I have been a contractor myself. A great deal of chaff was going on that night in the Prince of Wales Hotel. A great many guesses was made as to the amounts of the tenders, many of which I belieyed to be very nearly correct, as ;waa > afterwards AiaAt\rrekf£>*\

To Mr Barton— t was not a tenderer, but was interested in one. Con tr" actors generally do take a good deal of trouble to find out other people's tenders. There is generally a deal of pumping all round. M'Kenzie "is I believe a smart man. He may be as smart as myself, but don't know. Proudfoot was betting ;he offered to bet £100,^6 would name three. Proudfoot offered a cheque, which was refused by M'Kenzie. The bet was that each should place three men, whoever named the lowest to be winner. I destroyed the blotting paper after making the copy of it, now produced. I tnink it would take a man of average ability 8 hours to make out the schedules of quantities required to accompany the tenders. I can't swear the figures on the paper are an exact copy of those on the blotting paper. I was not particular to a hundred or two. We were liquoring at the Prince of Wales Hotel, all round. John Blacklock, sworn, deposed to having been Provincial Secretary and Treasurer at the time of the occurrences in question, and to having seen a letter written to Mr Aylmer, from the Depnty-Superinten-denfc, asking for an explanation of what had taken place., and to a statement having been received from him in reply. Some discussion here ensued on the adinissability of this statement, and also of the conversation between Morton and Aylmer, referred to in the evidence of the former. His Honor ruled against Mr Barton, but said he would take care that nothing was allowed to come before the court which would prejudice either of hia clients, as he held that both the statement made to the Government by Aylmer, and the conversation between him and Morton, having taken place after the connection between the conspirators had ceased, could only be received as evidence against Aylmer himself, and not as affecting either of the other defendents. Clement Morton recalled — I had a conversation with Mr Aylmer at the time 1 delivered the letter previously referred to, asking him to make a statement to the Government. His Honor said before the conversation between Aylmer and Morton could be received, the letter would have to be produced. Witness was accordingly ordered down until the letter was sent for. James Shearer, contractor, recapitulated his former evidence, and identified the packets containing his tenders. J. Aldriclge, contractor, also identified the tenders he had sent in, and spoke to their appearance at; the time of first i enquiry. He was of opinion they had been tampered with. Wm. Koebuck gave similar evidence. Samuel Packham, contractor, also gave evidence as to the state of the tenders, j hia evidence being a repetition of that ! formerly given. Cross-examined by Mr Harvey — I was here at that time, as the representative iof our firm. There was amongst contractors great disapproval of the general manner in which the Provincial Govern- ; ment dealt with tenders, as affording i opportunities for tampering. I don't | know if there was a general impression that the government would not accept any of the tenders. I don't think I said so myself. To Mr Barton — I lived in the Club at the time in question. I don't know ( that Aylmer was out all day on the Fast- i day with Jones shooting. There was a good deal of ferment and excitement amongst the contractors that day about j what had occurred. We, myself, Proudfoofc, and another, watched the Club all that day. We were watching for the exit J of the box. Saw nothing. We watched I closely. We were the successful i tenderers the second time. We heard a I report that the Government were communicating with Proudfoot. I heard it first from a member of the then Provincial Government, I complained about it. I thought it very unfair. To Mr M'Donald — From the remarks made by Mr Blacklock, I gathered that the government had allowed Proudfoot to send in a second tender. I went to the Superintendent and complained about it. Our tender was afterwards accepted. John Blacklock recalled, produced the statement of Aylmer, and correspondence between him and the government. Having been examined it was ruled by his Honor as unnecessary, it containing no points against Ayltner, which had not already been brought , out in To Mr Harvey — Mr Aylmer always took charge of tenders. He never previously had occasion to suspect him of | tampering with them. i Clement Morton recalled, deposed — I copied this letter (produced) into this book. I believe I delivered the original to Mr Aylmer. I believe on the Ist of October. i . To His Honor — The conversation which followed referred also to M'Kenzie and Sayers. Mr Harvey — I intend to object to its reception. His Honor — Of course those portions of it which refer to the other two defendents cannot be received. Mr Harvey — But, your Honor, whereas the whole conversation might be very favorable to my client, portions of it may be the reverse. His Honor concurred, and on his suggestion, the Crown Prosecutor did not press the matter. The counsel for the prosecution having intimated the evidence on behalf of the Crown, could be 30 1 throagh by 12 o'clock next day, His Honor adjourned the Court at half-past 5 o'clock, until 10 this morning. The defendents sureties, entered into fresh bail bonds for their appearance. Two constables were sworn to take charge of the jury during the night, allowing them such refreshment as they might require, but no communication with anyone.

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https://paperspast.natlib.govt.nz/newspapers/ST18690514.2.10

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Southland Times, Issue 1158, 14 May 1869, Page 2

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4,599

THURSDAY, MAT 13. Southland Times, Issue 1158, 14 May 1869, Page 2

THURSDAY, MAT 13. Southland Times, Issue 1158, 14 May 1869, Page 2

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