DSUPREME COURT.

Colonist, Volume III, Issue 237, 27 January 1860, Page 2

DSUPREME COURT.

Thhbsda^, Jakoart 26, iB6O. Before His Honor Mr. Jp&ee Johnston. W4 This being the day appointed by the Clouri for the trial of the libel case of the Queen v. A, Sounders, much interest was felt in the proceedings, and the Court was crowded by persons anxious to learn the result of a case that hap caused much discussion ejnee its commencement. • ' .-. Messrs. Cornell and Kingdon appeared for. the prosecution. Mr. Saunders appeared, in person, for ■ the defence.- . . • His Honor then said that the defendant having had the opportunity of striking the special jury list, he should like to know the authority which he could shew for challenging 4keny . Mr. Connell oppiosed. . • . . His Honor asked Mr., Saunders .y/hat .objeotion he .could raise to the opposition ? Jib* Sauaders said that amongst the jie^spqs m^

the list there were many who were his political oppo

nents. His Honor said, he should-know how to treat Mr. Saunders if he advanced such arguments as those, he would not hear of such insignificant reasons. As Mr. Sanders had no authority to show, he should rule that he was not entitled to challenge. : An excuse for the attendance ofM. Bury Avas put in by Mr. Adams. Mr. W. M'Rae also gave testimony oh oath.; His Honor said he should fine him £5. Gentlemen seemed to think that the business of the Queen was., to be neglected for their own private matters. 1 fit was the Prince of Wales he would be bound to appear, or show good reason for the omission. His Honor then asked Mr. Connell if he had any reason to advance why Mr. Saunders should not have the right to challenge six of the jury. There was much that as a judge he had no business to raise, but. on this point neither side seemed prepared, although of such vital importance. . The defendant was then allowed to challenge the following gentlemen: Messrs. E. Knyvett, E Pritchard, J. M. Pearson, P. M. Hervey, and Huddlestone. Others having been substituted, the jury consisted ot the following persons:— H. Martin, A. Kerr, G. Bennett, A. G. Jenkins, B. 0. Hodo-son, J. W. Barnicoat, R. J. Creasy, J.Beit, E. Buxton* N. Edwards, F. Kelling, W. Robinson, foreman.

Mr. Kingdon then opened the case. Mr. Connell then addressed the jury, explaining how Mr. Saundershad sent a letter to the editor ot the Examiner, on the 29th Noveinher last, containing very serious charges against Mr. Travers, as judge of the District Court. It imputed the giving ot an improper and corrupt verdict in the case of Men v. Saunders, and also charged him with distorting evidence to suit that verdict. He believed that the two first counts would be sufficient to fix the offence upon Mr. Saunders. The defendant had pleadedjustihcation tor, that libel; he was therefore driven to prove the absolute truth of it, and that it was for the benefit of the public that ifc had been committed. His Honor said the plea was a bad one. Mi. Lonnell ought to have demurred to it, and then Mr. Saunders would not have been able to give the least evidence upon it. So far as he could see at that stage, the plea was a bad one. Mr. Connell then called Mr. 0. Elliott. 0. Elliott sworn: lam one of the proprietors ot the Nelson Examiner ; I received a letter addressed to the Editor about the end of November ; 1 don't remember whether it was given to me by Mr. Saunders or whether it was sent in ; it is in Mr. Saunders' handwriting; was published in the Zxa™m\ ol} th,? Zh November, 1859. Two or three days before the publication of that letter I had a conversa ion with Mi Saunders; he complained of the report of the case of Edenv. Saunders, and asked, if he sent * letter complaining of that report whether I would Polish it. I said I would; the report now shown me I believe to, be the one, and in consequence of its being sent to me for publication I did publish it. Cross-examined by Mr. Saunders: I may have suggested that you should send a letter; I Said when you complained of the report "Is it not the evidence hat you yourself signed in Court?"; I did no shew the letter to Mr. Travers, nor did any one else by my direction do so. Mr. Travers is contributor to he columns of the leading articles of the Examiner, but not frequently; that article was contributed by Mr. '■The clerk then read the letter and note attached. To the Editor of the Nelson Examiner. Sir-I am sorry to trouble you to state that what appears in last Wednesday's "Examiner" as my deposition in the case of Eden v Saunders, is a mere fabrication, «r H«j that I did say, and much that I did not say; neither is the evidence of any other witness in that case correct y reported. 1 can readily believe, sir, that you are not to blame for such a misreDort I have no doubt that your publisher obtained it fromSought to be the highest possible authority r; anthat you regret as sincerely as I do that that authority is entitled toIM?aXSt his Honour the Judge to give a wriM according to evidence, he can hardly expect that a number v Englishmen will allow him to distort their evidence to make it accord with his verdict. I am, &c, Alfred Saunders. [With reference to my report of Eden v Saunders, I [beg; to say that it contains nothing but what was given m evidence, neither is anything suppressed of the slightest material importance.— YOUK REPORTER..] W T L Travers sworn: I am Judge of the District Court of Nelson; 1 have acted since August 15, and the date of my appointment is April 25, 1859; I held a Court on 15th November, 1859, and there was acase of Eden v. Saunders; I took notes in that case ; I am not aware that there is anything in the act to compel me to take notes, I do so as a record for myselt; the judgment'in that case was for £33 6s. 3d. for the plaintiff. I took no part in the report, When the reporter asked me what my judgment in the case was [ wrote on a piece of paper the judgment which 1 had given orally. Some few days after the case was heard, A. Hibble, reporter of the Examiner, came to me and asked for the particulars of the case, as well as other eases tried that day, I then handed him my note book, I did not see what he extracted ; I had left before he completed it; I did not give him any instruction with respect to omitting any part of it; I have contributed some articles to the Examiner, I have no control in the management of that paper, did in no way distort the evidence given in the case of Eden v. Saunders. Cross-examined by Mr. Saunders: I receive a salary from the public treasury; I have carried on a business since receiving that appointment; I was then a partner in a brewery, at the date of my appointment I was a also a partner of Mr. Kingdon; Mr. Kingdon was council for the plaintiff in the case of Eden v. Saunders. I have had no business connection with Mr. Kingdon except that I have been retained by him as counsel; I did furnish the reporter with the particulars of that report; I never gave the reporter any directions to alter the report. A. Hibble sworn : I am reporter for the Examiner; I was not present during the whole time of the sitting of the. District Court on 15th November last; I was there twice, I took notes of portion of the case of Eden v. Saunders; I took the whole except the greater portionof the cross-examinations of Mr.Eden and Mr. Saunders; the next morning I saw Mr. Travers, and asked to be allowed to take the portion I wanted from his notes; he handed me his note book, and I copied the whole of the cross examination of Mr. Eden and the crossexamination of Mr. Saunders, but that of the latter was not put in the paper; the non-publication was not caused by Mr. Travers; he did not suggest any alteration in those notes; when Mr. Travers handed me his note book, ■ I handed him something which drew his attention from that casej I never showed Mr. Travers the report subsequently; I gave Mr. Travers reason for requiring the notes. Cross-examined by Mr. Saunders : I took notes myself in chief, and made use of them with the exception before stated. I put Mr. Eden's evidence into as good English as 1 could. It was not reported in his own words. Eden did not in my hearing say anything important that did not appear in my report. I heard him say something about some sacks. Don't remember Eden saying something about your being short of money. I don't remember the time when I was present during the case. I was present during your examination in chief, but not the cross-exaimnav tion. I am the author of that note at the bottom of the letter. I remember that Eden denied a note that was landed to him as being in his handwriting. I was in'eoust $rhen the Judge was giving judgment.; it was furnished to roe by Mr. Travers. The report was altered by myself. The letter received on the 30th November I never told you had been seen by the District Judge before it was published; I said the second letter had been seen by the District J^dge before publication; there were several conversations toolc place in the office, of the Examiner about the letter. I never said to any one there about the first letter being seen by the District Judge previous to ppblication. . 0. Gurfjis sworn: I read the letter immediately after, the publication of the paper: I thought the term "District Court" could mean no other person than Mr.

Travers. ' ' ' The case for the prosecution then closed. The Clerk then read the report of the case as it appeared in the Judge's notes taken at the time, also the report in the Examiner, and Mr. Saunders'letter to that .paper dated Npveuiber 30th, given before. James Elliott sworn ■: I am one of the proprietors of the Examiner.' The letter produced is in the handwriting of the defendant. His Honor here asked where Mr. Connell procured that letter; he must .be sworn as to that point. j.',Gonnell sjj/orn: lam solicitor, apting as counsel in this case-: J pipilucg (tjetter (marked. G.) received by vost from Mr. Saunders on December sth, dated, the 3rd, in answer to a letter .which I wrote him on 80th November. , The Clerk then read a msfitae copy .of Jetiersenf to Mr. Saunders, askine for a disavowal of the libelous imputation in the letter published in the Emminer of the 80th, and stating that a public apo'.ogy of an ample kind would be accepted. . The letter of Mr. SaundSr|",in reply to this communication was also read..- 'iwi Til Mr, Saunders, in addressing^ Jury, said that.ne

trusted that ho should not tread upon those mysterious technicalities with which the law wasi surrounded. His Honor here interrupted the defendant upon the objectional manner in which he was proceeding. 'Mr. Saunders, in continuation, said that the difficulty of his position might easily be imagined when it was seen that the whole-.of the professional practitioners were arrayed against him, and even the assistance of Mr. Adams he waa precluded from using. His Honor said that Court should not be the arena where calumnies were launched against the whole of the gentlemen of the profession, he would not give the defendant the advantage of another warning, the court would vindicate itself. Mr. Saunders in continuing the defencs explained why he disputed Mr. Eden's claim in the first instance, at considerable length, and said that as the case was reported with " sworn and said" after each name he had considered that it purported to be a true account of the evidence that took place before the District Court; but he thought that he could shew that the jury would have no hesitation in saying that that report was not correct, and for the most part bore the appearance of an intentional mis-statement of the case, and this was the object for his shewing the authority from which that, report was obtained was not reliable. He had been told that he could not do so by Mr. Adam 3. - ■ ■ His Honor said that if the defendant preferred, ■ taking that advice, he could do so, but if it was his intention to shew that Mr. Travers was a person not entitled to belief or respect, the point was such a material one that he would take any amount of evidence upon it. Mr. Saunders said that the affidavit made by Mr. Travers in applying for a rule nisi stated "That save by the permission given to Alfred Hibble to copy the notes I did riot furnish to the paper or the reporter any particulars, &c. The defendant seemed here about to go into a proof to the contrary, when His Honor said that Mr. Travers should have been crdssrexmained when in the witness-box upon the point raised, he would not admit evidence unless it shewed that the judgment was corrupt, wilful, and knowingly given; Mr. Saunders was not to fight his battle over again about the wheat ?n that court, neither could he expect that because there was no conflicting evidence in the case of Eden v. Saunders' that he was to make such a charge, as he had done, lightly- , . Mr. Saunders resumed : he stated that several omissions had been made in Mr. Eden's evidence, and also Mr. White's. His Honor said that the fact of proving that the Judge had omitted particulars had nothing to do with Mr. Saunders' case : the Judge was not obliged to take notes, it was perfectly optional; if Mr. Saunders wished it to go to the jury in that way it should be so, but he could not see how that was to help him; he should have to tell the Jury afterwards that these particulars were irrelevent to the matter; he spoke of this because he should not be thought to take advantage of him afterwards. If the defendant should shew that the report was distorted by the District Judge corruptly; the plea was a bad one: the defendant must plead to the terms of the indictment; and if in that indicment there was one single count which could be supported, it was sufficient. ' Mr. Saunders said that it was not from the fear of any punishment that he had stated what, he had, so much as a desire to adhere to the truth of the conviction which he had held, and still held, as to the misstatement of the report and the source of it, and for upholding his firm conviction based upon fact he had been brought there that day. Had he attacked Mr. ■ Travers behind his back, had he assailed him as a father, a husband, or a citken, he should have looked upon these proceedings with less surprise; he appealed to those in Court who had known him during his years of residence amongst them, in his social and political aspect, as to whether he had ever prostituted his opinions, whether he had ever espoused any cause except from an obvious conviction that it was just and right. His Honor here said that he could see the drift of the defence used by the defendant, who was a very intelligent man; and he must tell him that he was wandering from the point. What could the indulgence in a panageric upon himself have to do with a defence on the point in question ? Mr. Saunders continued—The letter which he received from Mr. Trovers, through Mr. Connell, which showed the extreme clemency of Mr. Travers, was not received until seven hours previous to his reply to it. The letter that Mr. Travers required him to sign was of such a character that he could not have done so. It might be that in the prosecution of this charge against him he might be consigned to a felon's cell, that he might be visited by his children, but they would never have to feel ashamed for him. To have signed the letter required by Mr. Travers, he would have disgraced the name of a father and have forfeited the esteem of his fellow men.

His Honor said that if any person gave any indication of approval or disapprobation of the proceedings in the Court, he would have them immediately taken into custody. Mr. Saunders then proceeded to call witnesses. E. Dew sworn: lam a farmer in Waimea East; I was a witness in the case of Eden v. Saunders, at the District Court; I remembur the evidence I gave on that occasion.

His Honor asked witness if he had any written memorandum with respect to the evidence he had previously given. . The witness replied in the negative and continued —On the 19th May I delivered a certain portion of wheat to Mr. Saunders at 6s. 6d.; Mr. Kingdon asked me if I had offered any wheat anywhere else before I took it to Mr. Saunders, and I said yes! I offered it to Mr. White, but he was not a buyer at that time ; I took it then to Mr. Saunders and sold it for 6s. 6d.; I saw a note shown to Mr. Eden, and he said it was his writing but he did'nt sign it. His Honor said he could not see how this was to prove the motives for distorting evidence. Mr. Saunders said that he could not bring evidence of the motives that had led Mr. Travers to do as he accused him of doing. He would not call any more evidence. Mr. Connell then addressed the jury, arguing j that the defendant had shown no justification, and that he had not pleaded according to the indictment. There was no evidence that the report was furnished by Mr. Travers, or upon improper or corrupt motives. His Honor said the case was one of the utmost importance, and he was happy to think that he was not a judge of facts, as was the case in the District Court. In this case such considerations were left for a jury. He had been at times placed in a position that was extremely unpleasant for a judge. In many cases where Mr. Saunders had gone astray it would have been unkind not to shew him where he was wrong;. _ If Mr Saunders wished to set himself up as the vindicator of the public, -fclie proper way would be to go to the fitting tribunal for an investigation of the conduct of a judge. Mr, Saunders waa just about the best man to know where he should go to right any complaint that he might have to make. The evidence was utterly irrelevant on the side of the defence. To men of common sense, it would appear by the defendant's letter that Mr. Travers had polluted the source of justice and committed a crime of the greatest magnitude, j and it was perfectly frightful that persons should stand up in a Court of Justice under such circumstances. He would be happy to read over the evidence to the jury if they required it. 'The jury then retired to consider their verdict, and aft<?r an absence of nearly half an hour, returned a verdict of Guilty.^ ' His Honor then said that sentence in this case must be given by a Judge sitting in banco, but before doing so lie called upon Mr. Sounders, if he required any time to file afiwjayi^s.

Mr. Saunders replied in the negative. Mr. Connell then applied for the defendant to be attached with costs according to (> and 7 Victoria, c. 96, and adopted in New Zealand in 1845, which wns granted. A question then arising as to the expeuses ot the special jury, » . His Honor said that it sounded against constitutional principles, that in a criminal case the jury should be entitled tg expenses, and on putting the question to the jury he was told that they waived any claim. His Honor complimented 'them upojd the public spirit it exhibited.' His Honor having then gone through the form of dissolving the Circuit Court, immediately opened sitting of Court in banco, and pro?eeded to address the defendant to the following effect ■:— ■He said,the defendant was holding a position of one ofhe'r'lftajesiy's Justices "of the Peace, and bound to uphold 'the'law,; :ye.t he 'found him endeavoring, by the most'unjustifiable means,' to r bring that law into contempt by impugning the 'conduct of its administrators. He had appeared in that Coijrt uppn ?, charge ■which he' atteiapted to substantiate by the most contemptible rubbish. He had referred to hi? public career, and tried to enlist sympathy by referring to his possible incarceration in loathsome dungeons and felon's cells. He could only say that if one atom of that sympathy followed^ it was. totally undeserved..

He had endeavored by a little glibness of tongue to, make himself appear wiser than the law, and wiser than his fellow-men He believed from what he had seen of him, that it was his practice to mislead men more foolish than himself. He had endeavored to show that if he failed in the defence he would go to the prison as a martyr. He (his Honor) trusted the public were not so easily deceived. He was one of her" Majesty's Justices of the Peace, and had endeavored to fix a crime upon a Judge, if possible, baser than his own. He could hardly trust himself to speak of circumstances of this kind when he reviewed , the case. In a community like this it is of the utmost importance that the law should be upheld and that its" officers should not be stigmatised. He had endeavored to calumniate the proceedings of a Court of Justice, to bring into contempt the constituted tribunals of his country and its administrators. He came there w'th audacity to enlist _ the sympathy of the jury, and his friends behind, and to def'eet he law; he had had the judge in the witness box, and had he gained his point would have consigned him to the obloquy of all mankind. His Honor trusted he did not know how wicked how foolish he had acted. It was because that he was not a common man that he. viewed his conduct as the more culpable, and trusted that in the retirement he was about to afford him he would be enabled to look into himself, for he believed that if he did not change his present frame of mind before he came out of prison, that a different fate awaited him. One ot the painful duties assigned to Judges was, that the law allowed a discretion to them in its vindication. Ifc was difficult to draw the line between leniency and the punishment which the offence merited'; in this case he should visit him with a sentence tbat would mark the heavy offence of which he had been found guilty with as lenient a punishment as the case would admit of. The sentence of the Court therefore was that he be imprisoned for six months and pay a fine of £150 to her Majesty, and further imprisonment until the fine be paid. His Honor then iutimated that he would communicate with the Government respecting the name of the defendant being removed from the commission of the Peace. At the termination of the sentence a mss was heard from some one amongst the crowd of listeners. His Honor renewed the caution which he had before given with regard to expressions of feeling in the Court and it was not repeated. This case terminated the present sittings of th Court. c