PERJURY.

Tuapeka Times, Volume III, Issue 189, 21 September 1871, Page 3

PERJURY.

JV'illiam Hayes was indicted for having at Lawrence on April 27th, committed wilful and corrupt perjury. Mr. Harris conducted the prosecution ; and Mr. Macassey defended.

The facts of the case are these — Sometime previous to the month "of February, one William Tyson, who resided in the Tuapeka district, became insolvent, and he had to appear in the Supreme Court in Dunedin on several occasions in connexion with his bankruptcy proceedings. On February 27 th, he made application to have his bankruptcy annullded, and on that occasion Hayes and a man named M'Pherson appeared as witnesses,' upon a Judge's summons. At the termination of the proceiding3, counsel for Huyes applied for witnesses expense's which wore incurred by them in coming down from Tuapeka ; and it .was alleged by the prosecution that as nearly as could be ascertained at thi3 distance of time, the reply of the learned Judge was that "he was afraid he could not help him (IJayes), he should have been more cautious ; and have obtained his expenses bafore leaving Tuapeka." On Api'il 27, Hayes summoned Tyson to appear before Mr. Simpson, R. M., at' Lawrence to answer a demand for the sum of £6 odd, for his (Hayes') expenses to Dunedin on the February before. At the trial both parties were represented by counsel— Hayes by Mr. M'Coy, and Tyson by Mr. Copland. Tyson pleaded three pleas in answer to the demand — first, the usual one of non-indebtedness ; seoond a set-off for an amount in excess of the claim ; and third, that inasmuch as the Insolvent Court had nra.de no order in the case, the lower court was without jurisdiction ; and further, that the plaintiff should have taken care that his expenses were paid before he left Tuapeka. The Magistrate, in dealing with the case, rejected the two first pleas, because the one wa<? inconsistent with the other, and confined his attention solely to the third. Tn the course of liis evidence Hayes swore that in reply to the application made on his behalf in the Tnsol vent Court on February 27, the Judge said " we should sue for them/ meaning his expenses ; and that "the Judge did not say we should ha va got our expenses before starting." After hearing the evidence, the Magistrate gave judgment in Hayes, favour for the amount claimed, together with costs. Tyson's counsel asked for leave to appeal, which was refused ; and on the following day, before Mr. Simpson and two other Magistoates, laid an information for perjury against Hayes, which was dismissed without any reason being assigned therefore, and without any evidence being gone into. Tyson, feeling himself aggrieved, and having no other remedy, filed the present indictment before the Grand Jury. The alleged perjury consisted in Haye3 statements that the Judge had said "^we should sue for them," meaning his expenses ; and that " the Judge did not say we should have got our expenses before starting."

Mr. Harris, in opening the case, pointed out the distinction between perjury at common law, and pprjury by statute, which was that, in the latter case, the false oath (which must be taken in both instances before a properly constituted tribunal) must be in some particular material to the is3ue ; while with perjury at common law it was not absolutely necessary that the matter sworn "to should be material to the issue. But in the present case, the evidence for the prosecution would show that that distinction .would' be borne out, and all the ingredients essential to establish perjury would be presented. The precise words Used by the Judge would not be stated, but evidence would be given of them as near as it was possible to do so. As it would be proved that Hayes was within hearing when the Judge used the words which the prosecution alleged he did, use — viz., that "he (Hayes) should have -taken care to have got his expenses before leaving Tuaneka" — it would be ebulencUd-fchak he had ujed different word 3, in order to induce the Magistrate to view his claim in. a favor-able, had jurisdiction. And in considering tKie question whether the a matter sworn" to light : and, in fact, had induced the Magistrate to come to the.jppnclusion.that he

w.-jS or was not imperial to the issue, he submitted (and, at later stage, cited authorities in support of that contention) that it was not absoluetly necessary that the decision of the Cowt should have been influenced by the o t-it v "inent made. For the defence it mighi bo nr^ed that the case was a pal try one, < r the respectability of the accused might be put forward. His respectability was not denied ; but if the offence charged against him were proved it was an aggravation of it, because a man in his position should have set a better example to those below him. Evidence was give as to the words used by the Judge by persons present on the occasion of the application being made. The principal witness was Thomas Thompson, butcher, who deposed that when the application was made by- Mr. Stewart, counsel for Hayes, the Judge said, " I don't think I can grant it ; you ought to have got them before starting," or words to that effect. He took a note of the words used by his Honor shortly afterwards. No mention was made by the Ju r lge* that Hayes should sue for his expenses ; ho swore that. The defence was' that no perjury had been committed ; that his Honour's observations were such as would reasonably lead to the belief that he had advised the witnesses to sue for their expenses ; and the evidence went to support; this view. In the courss of the examination of the witnesses, some correspondence of a rather amusing character, by Mr. Stamper, Tyson's attorney, was read. We cannot give the whole of the letters, but select one which he wrote to Mr. Simpson, R.M. It is dated \Vait~.h\ma road ; and after referring to a case hepr 1 before Mr. Simpson, in which Mr, Stamper had appeared, the write? expresses his resolve never to appear again in Mr. Simpson's Court, especially in any - civil case involving matters of law. This letter bore in pencilled writing the following inscription :—: — "He told the Youngster he never heard before of matter of law, but only 'of matter of fact, bein-r received in evir deuce ; thereupon the Youngster was extremely indignant, and angry words followed from the Youngster, who preached his effusion upon Jaw and justice, and threatened to give iri charge —to commit —because he truly said neither law nor justice was done on last Monday. v Commit hie ! aye, do it if you dare, my man. I d ire you to commit me ;if you do you'll commit yourself ; yovf3. better consider about that ; and mind what you do ; mind what you are about." ( Yovmc^sfcsr) — ' * police. '* (Brown, Jones, svnd Ilobinison, and other Insolvents) — "Take him; take him ; have at him ; worry him." " Clerk, take' that down ; mind what your about." The Clprk takes it down- ; the scene drops, and people laugh. [Exeunt omnes to get drunk and talk over "any affairs rather than their own.]

Conclusion of case. " A. clear case of perjury." (The Youngster) — " Most outrageous conduct to say so. ( \ laugh — " He'll commit you.") 0 / super vi quid super vis tua super via te superabit. The jury, after a short retirement, returned a verdict of "Not guilty." Mr. Macassey applied for an order for the defendant's costs, which elicited from his Honour a condemnation of the manner in which an occasional remark of his had been made the means to entrap a witness. His Honour also remarked that the Act of 1870, under which the application was made, did not go far enou/h ; had it given him power to make an order against the attorney for costs, he would have done so. On the whole it was a most unjustifiable prosecution ; there could be no doubt about that. Tyson was not sufficiently to blame — he having acted under advice — to justify him in making an order against him. Mr. Macassey observed that the defendant would have a perfect right of action for malicious prosecution against Tyson, and would be entitled to recover his costs. It would be a pity to put him to that cost, seeing the action would be indefensible. If his Honour granted the order, he would guarantee no action would be brought. His Honour said that he did not see on the face of the proceedings so far as they had gone, that Tyson personally was to .blame ; and therefore he would not be justified iv making an order against him j but he would do so against the attorney if he could.