THE WHATAWHATA RAFFLE. A "Breeze" in Court.

Waikato Times, Volume XXVII, Issue 2250, 9 December 1886, Page 2

THE WHATAWHATA RAFFLE. A "Breeze" in Court.

I At the R.M. Court, Hamilton, yesterday, before Hu W<.rnhip the Mayor, Captain McPherson and Captain Steele, J.P., Arthur Wright, Arch. Ferguion, Henry Moore and William Shepherd were charged with that they did on the 11th September, at the house of A. Sunderland. Whatawhatn, improperly dispoHe of a horne, the property of the defendant Wiight, by raffling the same by tho casting of dice, contrary to the provisions of the (i air. ing and Lotteries Act. Mr W. M. Hay appeared for the defence. Serjeant McGaath detailed the particulars of the case. It seemed that B<>me time ago the defendant Wright broke hid leg and incurred considerable expense for medical attendance, and with a view to raise funds he raffled a pony. The animal was won by Mr P. Corboy, but was subsequently taken from that gentleman* paddock and sold, whereupon the matter came under the notice of the police. He would call Robert Loane, a contractor, residing on the Hakarimata range, who on being sworn said : I know the defendant. I remember Wright breaking his leg. Ido not remember having a conversation with him in regard to raising money to pay the doctor's bill, nor in regard to the pony, the subject of this action. I object to siy whether Wright asked me to come to Whatawhata to conduct a raffle. The Mayor thought it was a proper question. Mr Hay said raffling was illegal. He asked witness why he refused to answer the question. Witness : Because it might tend to criminate me. The Bench quoted from the Amendment Act, 1885, to show that witness was not excused from answering on that ground. Mr Hay said that provision applied only to cases brought under sections 18 and 19. Captain McPherson said the information was laid under the whole Act. Mr Hay said it was bad on that account, and he objected to it. He quoted from Paley on Convictions to the effect that informations must be laid under a specific section. If a statute gives summary proceedings for various offences specified in several sections, a conviction is bad which leaves it uncertain under which section it took place. Capt. McPherson : That's English law ; we go on the law of New Zealand. Mr Hay : It is the law of this and every other British colony, as well as that of England, and is an undoubted authority. He was willing that the police should amend the information, but until that was done he would protest against the witness being compelled to answer the question. The Mayor said the Bench decided that witness should answer the question. Mr Hay said it would rest with witness whether he would answer it, and if ho refused it would be seen what would be done. He had asked the Court to take a note of his objection to the information, with a view to ulterior proceedings, and they had not done ho, but had decided the point without having regard to it. He hoped the Press would take a note of the objection. Capt. McPherson said Mr Hay's remarks amounted to impertinence. It was very improper to refer to the Press in that way. The Clerk stud Mr Hay was interrupting the prosecution. He had not taken objection to the information. Mr Hay said he had, and he objected to the clerk being judge in this case. He went on to remark that it was not, of course, to be expected that justices should be thoroughly acquainted with the laws of evidence, though perhaps His Worship (Cajt. McPhernon) might form a distintinguished exception. Capt. McPherson said Mr Hay might keep his sarcasm for another occasion. It was offensive. The Mayor said Mr Hay must refer to the Bench as a whole. They would give their decision, and Mr Hay had his remedy if they were wrong. Mr Hay said all he intended to convey was that Capt. McPherson had had more extensive experience in court matters than either of the other members of the Bench. He wished to draw the attention of the Bench to section 12, Johnson's Justice of the Peace, Vol.l, where the duties of Justices as to evidence were clearly laid down. It is there stated "that they are bound by the laws of evidence generally, and ought always to act within the true spirit of them. " When they are acting judicially — either exercising a discretionary power or exclusively determining on any question within their jurisdiction, they ! ought, as far as they can, to apply and be governed by the established rules of evidence." The question of evidence before the Court at present was this, whether the witness had the privilege of declining to answer the question or not. The position was as follows : — The Gaming and Lotteries Act, 1881, by l(i, 17 and 18, created three offences or sets of offences with different penalties attached to each, viz., a £20, £100 and £200 respectively. The information was not laid under any particular section. The Court would not at present say what the maximum penalty was, because the information was uncertain and did not disclose this important matter. iiy the Amendment Act, 1885, the privilege of a witness to refuse to answer questions is taken away if thededendantis charged under the 18th and 19th sections. But if he is charged under any other section that privilege remains. Would it be fair to obtain the evidence of this witness as for a charge under the 18th section when it was manifest from the language used that the defendants wero charged under the 16th section ? Could the evidence obtained for a charge under section 18 be fairly used to sheet home a charge under section 10 ? The privilege of the witness to refuse to answer the question was good as to clursjes under the 16th and 17th sections. It was laid down on the " best on evidence" that, "in order to entitle a witness to refuse to answer a question on the ground that it would tend to criminate him, the question need not be such that the answer thereto would itself be evidence against him on a criminal charge. It is sufficient if the answer would furnish a link in a chain of evidence which might implicate him in such a charge." The bench would see that Mr Loane was acting quite within his privilege in refusing to answer this question. He contended that the information was clearly bad, and could not for a moment be supported in the higher court. There was a decided case on which he relied, viz., Carter v. Simpson reported in 17 L.J.M.C. 173. That was a case under the Maliciou-j Injuries to Property Act. The information did not indicate the section under which the offence was charged, and there being several sections of the Act under which suoh an offence was punishable, Lord Denman and a full oourt held the conviction to be bad on the ground that "it did not shew for certain under what section of the statute the prisoners had been convicted." If the section was not indicated in the information it could not show in the conviction. The Mayor asked if the police had any objection to amend the information so as to lay it under section 18. Sergt. McGrath said it was not usual to bind them down to any section. The Mayor said the Bench was of opinion that when an information was laid under the whole Act, any section of that Act was implied. Unless Mr Hay could show that it was bad the case would go on. Mr Hay said he thought he had done so. He had also shown that unless the in forma tion was laid under section 18 they oould not compel the witness to answer. The Mayor said the Bench were somewhat confused. They required the police to show why the information should not be amended. Sergeant MoGrath said Mr Hay's object was to catch him tripping, as by laying the information under section 18 some of the defendants would escape, He would, if the Bench desired it, withdraw the information and lay two fresh ones. The Mayor said the information must either be amended or withdrawn. Sergt. McGrath said he would prefer to withdraw it. He wouH point out, however, that the question of the witness's obligation to answer the question put to him had not been settled, Mr Hay applied that the oaso be dismissed} and contended that it was not proper to withdraw it without the consent of accused. The Bench, after looking into the Justice of the Peape Act, ruled that the charge could be withdrawn by the ipformant with the permission of the Bench. It was accordingly withdrawn. Mr Hay then applied that the accused be discharged, and after some argument the Bench formally discharged them.

Furnished cottage to let at Ta Aroha. Tenders for dog collars, lamp lighting, nnd carting are invited by the Hamilton Borough Council.