RESIDENT MAGISTRATE'S COURT

Thames Star, Volume XII, Issue 3794, 24 February 1881, Page 2

RESIDENT MAGISTRATE'S COURT

THIS DAY. (Before Harry Kenrick, Esq., R.M., and .Messrs Ehrenfried aud W. Wilkinson, -$J.Ps., and WikiriwhiHautonga, Natire Assessor.) John Procoffi, a Russian, was charged with the wilful murder of Himiona Haere, at Te Aroha, on the 10th inst. Mr Superintended Thompson conducted the case for the prosecution, and Mr George N. Brassey appeared for the defence. Mr G. Wilkinson appeared to watch the case on behalf of the natives. The Resident Magistrate said: "Before going on with the case I would say that I have received a subpoena to pro- ' duce the depositions taken at the inquest, and give evidence of what occurred there, in consequence of having received that subpoena I shall leave the Bench. Before doing so, howerer, there are a few remarks to make on the matter. There seems to be an impression abroad that the coroner a*, an inquest cannot sit as Resident Magistrate, and hear the case. Here I would say that the duties of Magistrate in these eases are merely Ministerial, and not judicial. Hundreds of cases have been dealt with by the same Coroner and Resident Magistrate, and on one occasion I had to proceed 100 miles to hold an inquest on a murdered Maori woman. The Coroner's jury returned a verdict of wilful murder, and I conriiitted the accused for trial at the (Supreme Court. lam only sorry that the onerous and unpleasant duties of this case should have fallen upon the Justices, as the proper person to hear it is a man who is paid by the Government for such work. lean only regret the work should have fallen to their lot."

Mr Kenrick then vacated the Magisterial chair, and L. Ehrenfried, Esq., J.P.. took possession.

Mr Brassey : Before the case proceeds I have an objection to make. It is that I object to jour brother Mr Chairman, sitting on this Bench after the scurrilous article which appeared in this morning's paper, of which he is the editor. I ask that gentleman to leave the Bench, as he must be biassed by the article in question. The article was a most untruthful one. Iv the first place, the article states that I, as counsel for the prisoner, " asked him to retain my professional services." This is a gross falsehood. I was consulted by several foreigners interested in the prisoner's behalf, and I undertook the defence without fee or reward. #1 m y say that the prisoner has been placed at.a great disadvantage, and myself, at a still greater disadvantage by having all possible obstacles thrown in my way. I was refused admittance to the prisoner, with an interpreter. I do not know whether or not the article has emanated from the police, but it certainly looks very much as if it had, as the information could not have been obtained .from any other source. The article states, in reference to the treatment of the prisoner, that "in consequence of a report freely circulated yesterday that he was handcuffed, and heavily ironed in the police cell, our reporter visited the prisoner yesterday, and of course found there was no truth in the rumours." I may say that while at Te Aroha he was chained to the tent pole with his hands handcuffed behind his back, and confined at the ancles, and subjected to gross'illtreatment, which should not have been so. The refusal for an interpreter has been made, and the police may deny it as much as they like, but I can prove it. I never applied to take three or four people to the cell, and my application for an interpreter was refused by the Resident Magistrate on account of being an unusual one—in fact he considers nearly all applications unusual. These things are a disgrace boih to the Bench and the place. Who has the most right to speak as to the desirability of the Eesident Magistrate giving evidence ? I, as a solicitor of the Supreme Court of New Zealand, or the editor of a journal in a small place like this ? Everything written in the morning paper has been written in condemnation of the prisoner, in contradistinction to ibe Evening Star which has been most fair in all its reports on the matter. I am surprised to see that the editor of the Advertiser, after the article in question had appeared, having the audacity to sit upon the Bench to hear the case.

Mr Superintendent Thompson said that the objection of Mr Brassey to one of the Justices was a matter for them to deal with. There were, however, some remarks he could not pass unnoticed. In the first place he would say that the solicitor for the defence, with an interpreter, would be allowed at any time to see the prisoner. He had made every enquiry in Auckland, and there was only one gentleman, a merchant, who understood the .Russian language. - He, however, hearing that the prisoner came from Odessa, declined to undertake to interpret inasmuch as they do not speak the Kussian lauguage but merely a patois. He did not think the Evening Stae had been fair to the police. He thought it was a pily that anything in connection with such a case should be inserted in the newspapers before the day of aearing. His Worship, L. E' renfried, Esq., said that Mr Wilkinson was sitting on the Bench not as the editor of the Advertiser, but as a Justice of the Peace. The prisoner would not be biassed inasmuch as the duties of the Justices were merely Ministerial and not judicial. Mr Brassey said: I again ask you, Mr Wilkinson, if you will sit on the Bench. It appears as if the Chairman is biassed against myself. If Mr Wilkinson sits on the Bench he will do so with the lull knowledge that the public of this place consider him biassed after the article in this morning's issue. If Mr Wilkinson still persists, I will ask that a note be made of my objection. The prisoner is charged with a capital crime, and I ask Mr Wilkinson if he can with fairness hear the case.

His Worship Mr Wilkinson said: I am sitting on the Bench at the request of the .Resident Magistrate, who has been prevented from presiding in the case by the counsel for the prisoner, who has been guilty of a most unwarrantable course in sending him a subpoena. The Justices' duty was to hear the evidence, and, if there was sufficient, to commit the accused to take his trial at the Supreme Court. If not, their duty was to let him go free. When at the Supreme Court his solicitor will have opportunity to expend all the eloquence at his command. There were no other Justices who would take the case, and, consequently, Mr Ehrenfried and myself undertook it.

Mr Brassey: I would ask you what you mean, sir, by stating that the step I took in sending the E.M. a subpoena was unwarrantable, I must say that your remarks savour strongly of a strong personal bias against me. The clerk of the court usually summons justices. Mr Ehrenfried : We will take a note of your objection

Mr Wilkinson your objection. Mr Brassey : I would ask the chairman to fake a note of it.

I will take a note of

Mr Wilkinson: The chairman has requested me to do so.

Mr Brassey objected to going on with the case without an interpreter, and considered it was the duty of the prosecutors in the case to find one.

After some further discussion, the Bench resolved to go on with the case without an interpreter.

Mr Brassey asked that all witnesses be ordered out of Court, and Mr G. T. Wilkinson asked that all evidence given by Europeans should be translated to the Maoris present in Court who were interested in the case. —Both applications were granted.

Mr Supt. Thompson stated the facts of the case and the arresting of prisoner.

Mr T. G. Sandes deposed that he was a surveyor practising at Te Aroha.

Mr Brassey made an objection to the investigation going any further until evidence was given to show that prisouer understood English sufficiently to enable him to understand what was going on.

Sergeant Major O'Grady said prisoner had been in his custody since the 12th, and he had had frequent intercourse with him, but had had no difficulty in understanding what he said, and prisoner also understood him plainly. Since the 16th, however, he had shown a reluctance to speak to anyone. He was certain that the prisoner could converse in English sufficiently well to understand what was said to him.

By Mr Brassey—Mr Kenrick visited the prisoner yesterday in company with me, in consequence of a reflection being cast on the police in the morning paper. I did not caution the prisoner in the usual way before questioning him, but did not question him about the murder. Prisoner replied in an undertone to a question put to him by Mr Kenrick as to whether he had any complaints to make, but I could not understand what he said I do not swear that the prisoner would understand every word read out of that paper (pr. ducing a copy of the Advertiser.) I swear that from my previous conversations with prisoner he will be able to understand all the evidence given in this case to-day. I have not heard the prisoner speak the Russian language. I visited him in company with Mr Cassrells, a Russian, but he (Mr Cassrells) could not understand prisoner's replies, nor could prisoner understand the questions put to him in the Russian language.

By Mr Thompson—lt is not customary,, to caution a prisoner every time beforV questioning him. When I visited^ the prisoner with Mr Kenrick, no question in reference to the murder was put to him.

Mr Sandes, re-called—He prepared a plan (produced) of the scene of the murder under instructions from the police. It is correct, as also are the distances marked thereon. He was at Te Aroha when the body of the deceased was found, but did not see the body before it was removed to the hotel; The spot where the body was found was pointed out to me by the police on the same morning. There was blood on the ground in two different places. The policeman who pointed out the spot to him was (Sergeant Mulville. All the measurements on the plan were made by me personally. By Mr Brassey—l did not notice anything strange about the ground except the blood. I have seen accused before to-day, but have never spoken to him to my knowledge.

Mr Brassey objected to Dr Huxtable being within hearing of the court. He also objected to Mr Sandes leaving the court after giving evidence.

Mr Superintendent Thompson said it was customary to allow witnesses to leave the court after giving evidence. The judge' usually warned them against making any communication outside.

Mr Brassey asked that witnesses should be placed under surveillance.

Mr Thompson : " I'll grant you that." At this moment Detective Farrell entered, bearing a document.

Mr Brassey objected, saying the police were using this means of getting the " tips."

Mr Thompson pointed out that the document was a medical certificate as to the Sergeant-Major's ancle. That was all the conspiracy (laughter, which however, was promptly repressed.)

Sergeant Mulville deposed—l am Sergeant of Police, and was in charge of the police at Te Aroha on the 11th of this month. On the morning of that date, in consequence of information I received, I proceeded about 600 or 700 yards on the Paeroa road from the Te Aroha township. At that distance I found the dead body of the native Himioua Haere. The body was on its back, with the head towards the Paeroa road. There was a large quantity of blood under the head and ueck, which had evidently flowed from the throat, which was cut from ear to ear. There was another pool of blood about two feet from the body on the left hand side. The body was on the river side of thn track, about four or five yards from the track. The legs were stretched out, but were together, and the head was inclined to the left. (Mr Brassey here stated that the prisoner informed him he could not understand what was being said ) The knee of the right leg was a little over the left. The left hand was stretched out on the ground, and the right was resting on the chest. The body at that time was cold and stiff. I examined the body and found a wound over the left eye, and the eye itself was bruised severely. There were deep scratches on the chest. The body had on a trousers and vest, shirt aud boots. The shirt was much worn and discolored, but had been originally a white cott©n and. The right sleeve (produced) was wrapped around the fingers of the right hand of deceased. It was saturated with blood. The sleeves was rolled twice round the fingers, and the blood on if; was quite wet. I searched the body, and found that the right hand trousers pocket was turned out, but there was nothing in the left hand pocket. A pipe stem, with an amber mouthpiece, and a greenstone pendant were lying on the ground close together near the body. In the waistcoat pocket I found a penny piece, a knife, a pipe and some tobacco. In the coat (which was picked up about ten yards from the bod y) I found a pack of cards, an old handkerchief, two small iron wedges, a piece of a liquorice stick, and a few matches. On the ground near the body a handkerchief saturated j1.., ■• ' '" "%

with blood, and a stone (produced) were picked up in my presence. The hat produced was found on the coat. The ground immediately around the body was a good deal trampled. The ground was hard, and was covered with short green fern about a foot high. I have produced all the articles found. I had the body conveyed in a dray to the Hot Springs Hotel. I then proceeded to two Maori settlements in the neighborhood to make enquiries about the deceased. On my return I found that Constable Cleary had. arrested the prisoner on the charge of murdering; the deceased. I then formally charged him with the murder and entered the charge. On being charged he said in English, " I kuow nothing about it," and then added, " I was very drunk all night." The prisoner's face was much bruised about the cheekbone and left eye. His hands were also much scratched and bruised. He had on a blue dungaree coat and trousers, but no hat. After being charged, the prisoner was secured inside the police tent, out of the sun, with a pair of handcuffs. This course was necessary, as there was no lock up at Te

Aroha. By Mr Brassey : Blood was not flowing from tbe neck when I first saw the body. The ground close to the body appeared to have been recently trampled upo <. I do .not know how much the ground was ftrampled upon, but lam certain it was for a yard on each side of the body, especially around 'the shoulders. I did not notice any clotted blood either on the body or on the ground. From the appearance of the ground I should not say that there had been a very great struggle. A man named Marshall claimed ihe amber mouthpiece, and the greenstone was identified by some Maoris as belonging to the deceased. I asked Marshall how the mouthpiece got there and he said he had lost it the day before. I have seen the native llinriona alive, I saw him in Te Aroha the night before about 9 o'clock on horseback. He was then sober. I saw accused at the same time, and he was also sober, although I said at the inquest that he had been drinking. Although Constable Cleary swore at the inquest that prisoner was the worse for liquor, I say he was sober. I did not see him drinking that evening. No report was made to me on that evening or towards the next morning of any one quarrelling with the deceased. The bruise on prisoner's cheek bone could have been made by a man's fist. I did not caution the accused in the usual way when I charged him with the murder. I said, " You are charged with the murder of a Maori who was found dead on the road this morning." I did not .mention the Maori's name., I ajn certain the accused said he did not do it, and then added that he was drunk all night. Ha also said he had been fighting during the night in the township, but that he did not know who it was with, as he was too drunk. He made other statements ; he had been drinking with his own money, and also with money he got from Smallman. The reason I did not tell the Inspector all this was because I was not asked. I do not remember being asked to state what the prisoner said in answer to the charge. I am not certain I said the prisoner was very drunk. His hands were chained behind his back ; after a short time he was handcuffed in front. I swear that I saw his wrists every day, and there were no bruises on them, but there were severe bruises on the back of his hands. I cannot say the handcuffs were always in front.

To Mr Thompson: I did not caution the prisoner at the time I laid the charge. All the statements made by prisoner were made without being cautioned, and after he had been charged I did not caution him in the usual manner. I said prisoner had been drinking. I said he smelt of drink. Prisoner was not drunk in my opinion. It is quite possible the ground could have been more trampled than I observed it to be. Some 40 people were round me at the time. Wheu I charged prisoner with the murder, I did not know the name of the deceased.

At this stage the Court was adjourned until 3 o'clock.

Court resumed at 3 o'clockMr Brasßey objected to the Native Assessor ai^ng .the -witness questions, but this was got over j.brfcfcbf» Natiye Assessor asking them througVihe Bench. ,\. k Sergeant Mulville, r.i-c^lled : I cannot say whether the mordeifeg 1 'or the deceased put the sleeve of tti^'shirfc. round Himiona's wrist. I do think^'deatli was caujgd. by*! he stone produced in Court. I cylaot. Bay whether the ma-kson the', round wjire caused by more than the accused and deceased. • Mr Brassey objects to the evidence given by Sergt. Mulville, and quoted portions of the Justices of the Peace Act, and Resident Magistrate's Act. This objection was, how ever, over-ruled by His Worship stating that the questions were really fom him, though suggested by the Native Asiea^ri, .'; „

v . r pQiißtable Gleary. deposed that be was statiotie(i;*-a,t^T,eyAYob,a, He rememberedinformatJb^being,T)rought into ihe towh/that? the body ":;6f..' r afi murdered man had ..tiee^ found on the Parroa road. I have known" i the prisoner ,for some time previous to the murder.?, .In consequence of in for- i mation I received I proceeded to tbe whare of accused,—eufc found -.-n-ooue there. There was a blue dungaree/jumper and pair of trousers and a checked shirt which had apparently been recently washed,changing on sticks projecting from the roof of<- the whare ' near the entrance. I. examined thpfa and found what 1400k to Vp' blood (stains' on the j trousers, and aleo some;on tEe jumper, which, however, were pot so dietincfc" as those on the trousers. In consequence of fading these ;| clothes, and from other iiif6rnit»tioj| I was in possession of, I p"oeeeded' ; to" vthe,,'Sunbeam claim in seurch of prisonj*. I, found him sitting at the mouth of ttti^drivej' and said to him, " I have come to arrest you on a charge of murdering a Maori last night." Hfcjwid, " I know nothing about it," and hungWo«n his head and muttered Bomethmg^lsej"Which I did not catch. I theu CJ"mi and found on him a knua"Mld «4;' t|^pce of quartz (produced). I examfneft-fche'kniCe^ and inside the handle I saw whafc'fttook to^bef blood. The blade of the knife ia sharp. I then handcujffed the prisoner, and^qpkhim to the police tent. He had a black eye, and scratches over the temple and on his forehead. His nose was alto bruised. :/ *'

[Left Sitting.]