SUPREME COURT.

Wellington Independent, Issue 1318, 2 October 1858, Page 3

SUPREME COURT.

(Before His Honor Mr. Justice Gresson.) Thursday, September, 30, 1858. The Court was opened at 11 o'clock, when his Honor Mr. Justice Gresson delivered the following judgment:— Regina v Rev. Arthur Baker. This was an application to show cause against a conditional order for a writ of certiorari, to remove into this Court a conviction under the hands of certain justices of tbe peace sitting ut Wellington, whereby tbe Reverend Arthur Baker was convicted of an assault upon one Mary Schroder, and adjudged to pay a penalty of £5, together with £1 4s. costs. Affidavits in support of the order were made by Mr. Baker, and by his housekeeper Margaret Langley, and his domestic servant Caroline Mathews; and an answering affidavit was made by Charles Johnson Pharazyn, one of the justices of the peace who presided at the trial aud signed the conviction. Il was argued that the conviction was bad upon the following, amongst other grounds: — 1. That the complaint was not made by "the party aggrieved," viz., Mary Schroder, but by her father, and that therefore the case did not fall within the summary jurisdiction of the magistrates conferred by 9 George 4th, c. 31, S. 27, and that S. 33 of the act could not be called in aid, inasmuch as the information was not on oath.

2. That the magistrates had exceeded their jurisdiction; the greatest penalty allowed by the act being £5, including costs.

3. That the conviction was void for uncertainty, in slating the defendant to have been charged with having "on or about the 1st day of June, 1858," as the prosecution for every offence punishable by a summary conviction, is required by tho act (S. 34) to be commenced within 3 calendar months after the commission of the offence.

4. That the conviction states the defendant to havo been brought before the magistrates on

on the charge on the 3rd and 6th September, 1858, and yet the conviction concludes "Given under our hands the day and year first above written," showing the conviction to have been made before the hearing had terminated. 5. That the jurisdiction of the magistrates is not shown, they being merely described as "Justices of the Peace, silting at Wellington." 6. That one of the magistrates, Mr. Ward, being an acting solicitor of this Court, and also Chairman of the Sessions of Peace, ought not to have sat on the hearing of this case, the 5 Geo. 2nd, c. 18, having imposed a disability on any attorney or solicitor from being a justice of peace during such time as he should continue in the business and practise of an attorney or solicitor, and his duties as Chairman making it very inconvenient that he should perform the ordinary duties of a justice of the peace out of the district assigned to him as Chairman. 7. That the affidavits show that another of the magistrates, while the case was at hearing, tampered with and sought to intimidate one of the witnesses; and thereby proved himself to be interested in the result of the trial. It is argued in support of the conviction, that the Summary Proceedings Ordinance of New Zealand, S. 17, provides, that no "information, conviction, or other proceeding before a justice of the peace shall be quashed or set aside or adjudged void or insufficient for want of form, or be removed on behalf either of tbe complainant or defendant into any superior court, by certiorari or otherwise." That the proper remedy was by appeal under the Ordinance; and that the Imperial act (9 Geo. 4th, c. 31) is not to be construed here otherwise than as modified by the Ordinance, which provides a form of conviction, which it is contended has been substantially complied with in the case before the Court.

That the last ground of objection to which I have adverted, viz., the interference with a witness on the subject of her evidence by a member of the court while tbe case was at hearing, although an indiscretion, is not sufficient to invalidate the conviction, in as much as it is not proved to have proceeded from any corrupt motive.

I have adverted to the objections to Mr. Ward merely for the purpose of stating that they appear to me to be unfounded. The act of 6 Geo. 2nd, and the subsequent act of 6 & 7 Vict., c. 73, by which the clause in question was repelled, and a sinilar clause re-enacted, are confined to justices acting in counties of England or Wales. But even had the former act been in force in New Zealand, and not being restricted to justices acting in England oi Wales, I am not prepared to assent to the proposition that a penal act could be so construed as to include within its operation a gentleman who is not an attorney or solicitor, but is merely admitted by this Court, and of course only within its jurisdiction, to the privileges of a profession to which he does not properly belong.

Neither is there in the sessions of the peace ordinance, or any other act that I know of, any provision which could incapacitate him as Chairman of Sessions from exorcism"* the ordinary duties of a justice of peace. Several of the objections to the conviction that have been mentioned appear to me to be entitled to considerable weight, but I think it unnecessary to advert to them in detail, as I am clearly of opinion that the excess of Jurisdiction by the award of costs over and above the maximum amount of penalty, and the interfeference [sic] with a witness by a member of the Court, afford sufficient grounds for making absolute the conditional order for the writ of certiorari, notwithstanding the privative clause in the Summary Proceedings Ordinance. The case of the Queen v. Sheffield Railwal Company, 11 Ard. and Ec. 194, is any authority for the removal of the proceedings by certiorari in case the inferior Court have exceeded its jurisdiction, even where certiorari may have been taken away by the statute. And the authorities cited in support of the conditional order fully establish that even the remotest possibility of interest in any member of the Court affords ground for quashing the proceedings. In the Queen v. Cheltenham Commissioners, 1 Q. B., Rep. 467, Lord Denman, C. J., uses the following language — "We have already stated our opinion that tbe clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings so far as to see that what is done shall be in pursuance of the Statute. The Statute cannot affect our right and duty to see justice executed; and here I am clearly of opinion that justice has not been executed." And in the Queen v. the Justices of Hertfordshire, 6 Q. 8., Rep. 756, the same learned Judge is reported as using the following language — "We cannot enter into an analysis of the different motives which may have produced the decision; it is enough to say that a single interested person has formed part of the Court." Again—"One would he sorry to see that a magistrate who was interested joined in the discussion at all. It probably never occurred to him that he was interested and disqualified. Still we must take care that interested parties do not join in deciding cases." Regina v. Justices of Surrey, I Jurist N. S. 1138, and many other cases, establish, that the administration of justice in all the tribunals of the country must be not only pure but above suspicion, and this cannot be the case if a member of the Court exercising summary jurisdiction, and therefore holding the double office of judge and jury, is to be permitted to act in such a manner as would expose even the most illiterate juror to the censure of this Court, if not to a heavier punishment, and would furnish a ground for granting a new trial. I will, therefore, adopt in this case the language of Lord Campbell, C. J., in the Queen v. Justices of Suffolk, 18 Q. 8., Rep. p. 420 (a case affecting the amount of poor rate, in which a member of the Court liable to poor rate was present, but did not vote, and where his conduct in sitting on the Bench was not, in my opinion, so culpable as that of the magistrate here) — "This rule must be made absolute. l am glad for the sake of a pure administration of justice that the application has been made. The proceedings in question are much to be censured." Rule absolute without costs.

The following affidavits were filed in this case:—

I, Arthur Baker, of Wellington, in the Province of Wellington, and Colony of New Zealand, Clerk in Holy Orders, make Oath and say, 1. That on or about tho 31st day of August last, I was served with a summons issued out of tbe Resident Magistrate's Court at Wellington, to attend such Court oil Friday, the 3rd day of September, instant, to answer the complaint of George Willinm Schroder of Wellington aforesaid, glazier, for having on the first day of June then and now last, at Wellington aforesaid, wilfully assaulted Mary Schroder, the infant daughter of the said George William Schroder. 2. That I duly attended that summons with my solicitor, Mr. John King, on the 3rd day of September instant, before H, St Hill, Esq,, the Residont Magistrate at Wellington aforesaid,

when the hearing of the complaint was adjourned until the afternoon of that day, in order that there might be a full bench of Magistrates to hear such complaint, I, having on a previous occasion consulted with Mr. H. St. Hill in the matter. That I did with my solicitor attend snub adjourned meeting before H. St. Hill, Esq, and fifteen other Magistrates, when the witnesses examined on the part of the prosecutor were the said Mary Schroder and Elizabeth Burbidge; and such hearing was further adjourned until tbe 6th instant, when the examination of the said Elizabeth Burbidge was completed, and Alexander Johnston, of Wellington, Surgeon, was examined on behalf uf the complainant, which closed the complainant's case; and my solicitor thereupon submitted to the Bench, that the case should be dismissed, as the evidence was of a conflictiting and contradictory character; but the Bench decided that I should be put upon my defence.

3. That evidence was adduced on my behalf to show that the said Mary Schroder had not been al al! times truthful; and it appears from tho evidence of the said Mary Schroder given on the hearing of the said complaint against me, that such evidence was inconsistent and contradictory in material facts and points and her evidence was also contradicted in material facts and points by the evidence of the said Elizabeth Burbidge and Margaret Langley who was subpoenaed as a witness by and on behalf of the complainants, but who declined to call her the said Margaret Langley, but who was examined on my behalf. 4. That on the said 6th day of September instant, the said Henry St. Hill, as Resident Magistrate aforesaid, did, after the complaint had been considered by the said Bench of Magistrates, pronounce judgment to the effect that I was guilty of the complaint, and I was fined in the penalty of £5 and costs.

5. That the said Bench of Magistrates, 16 in number, retired to consider their judgment aften 12 o'clock at night and returned after more than, an hour's deliberation, and I have been informed, and believe the same to be true, that the said Magistrates were not unanimous, but that several dissented fram the judgment and conviction. 6. That one Charles Dudley Robert Ward, Esq., acting solicitor and barrister of the Supreme Court of New Zealand, was one of such magistrates by whom the said complaint was heard, and as I am informed and believe to be true, was one of the magistrates who was in favour of a conviction, and that the said C. D. R. Ward, as I am advised and believe lo be true, was not by law permitted to act as a justice of the peace, and ought not to have sat on the hearing of the said complaint.

7 That I conscientiously believe that I had not a fair and impartial hearing of the said complaint against me by reason of at least 8 of the said magistrate's, including William Fox, Chief Commissioner of Crown Lands at Wellington; William Fitzherbert, Provincial Secretary; Charles Johnson Pharazyn, Provincial Auditor; John Johnston, a member of the Wellington Executive Council; and William Lyon, being violently opposed to me upon political, religious, and other grounds, all of whom, I have been informed and believe the same to be true, were in favour of the aforsaid conviction against me.

8. That the said prosecutor, G. W. Schroder, did, on or about the 13th day of August last, violently assault and horsewhip me for the alleged assault by me upon his said daughter the said Mary Schroder, on the said 1st day of June last, and that I did, on the I4th day of August last, being the day following such assault upon me, commence proceedings in the Supreme Court of New Zealand against the said G. W. Schroder, for the amount of L500 in damages for such assault; that my said solicitor, previous to such investigation and bearing of the said complaint against me for the said alleged assault upon the said Mary Schroder, objected to such investigation and hearing upon the following grounds: amongst others, that the information for such alledged [sic] assault by me was laid for the purpose of prejudicing my said action against the said G. W. Schroder; and that the said G. W. Schroder had allowed several weeks to elapse, after full knowledge of the circumstances of the said alledged assaalt by me, without taking any notice or otherwise interfering therein so far us I was personally concerned, until the said 13lh day of August, when he committed the said assault upon me, although a full investigation of the said charge against me had been for several days previously offered to the said G. W. Schroder, which he declined.

9. I positively deny that I committed any such assault as alleged upon the said Mary Schroder, on the said 1st day of June last or at any other time whatsoever, and I swear that the evidence of the said Mary Schroder in respect of such assault, and that such assault was committed by me, is wholly untrue. 10. And lastly, I am advised and believe the same to be true, that the said judgment and conviction of the said Magistrates against me is bad in law, for that such Magistrates have exceeded their jurisdiction, and that the evidence was not sufficient to support such judgment and conviction.

We, Margaret Langley, of Wellington, in the Province of Wellington and Colony of New Zealand, housekeeper to Arthur Baker of Wellington aforesaid, Clerk,and Caroline Matthews, of Wellington aforesaid, domestic servant in the employ of the said Arthur Baker, severally make oath and say, and this deponent, Margaret Langley, on her oath, says: — 1. On Saturday, the 4th day of September inst., C. J. Pharazyn, of Wellington aforesaid, Esquire, called at the house of the said Arthur Baker, and said to me that "I was subpoened by Mr. Schroder and that he, the said C. J. Pharazyn, came to put me on my guard, and told me to take warning, whatever I did, not to give evidence in favor of Mr. Baker, and that if I did I should have awkward questions put to me about Walter Alzdorf. The said C. J. Pharazyn also told me he was one of the magistrates sitting to hear the complaint of Mr. Schroder against Mr. Baker.

2. And these deponents, Margaret Langley, and Caroline Matthews severally make oath and say that on the said fourth day of September inst, the said C. J. Pharazyn, in the presence of bolh these deponents, said — "Mr. Baker is sure to be convictcd; he should not have meddled with politics. If he had been on our side, we would have got him through, even if we had thought him guilty,"

I, Charles Johnson Pharazyn, of the Town of Wellington, in tbe Province of Wellington, Esquire, one of Her Majesty's Justices of the Peace for the said Provitice of Wellington, make oath and swear: 1. That I have read the affidavit of Margaret Langley, and Caroline Matthews, filed in this Court in the matter of the application of Arthur Baker, to remove into this Court a certain Record of Conviction made by certain Magistrates on the 6th of September, 1858, against him upon the complaint of one George William Schroder. 2. That the said Margaret Langley was the

wife of Johnson Buckland, who was brother of my wife, and my wife and I have taken charge of and adopted as our daughter Frances Margaret Buckland, the only surviving child of the said Margaret Langley by the said Johnson Buckland. 3. That previous to the fourth day of September, 1858, the day mentioned in the affidavit of the said Margaret Langley, and Caroline Matthews, (the day on which I went to see the said Margaret Langley at the residence of the said Arthur Baker) in a conversation I had had with the said Margaret Langley, in which the conduct of the said Arthur Baker had been alluded to, she, the said Margaret Langley. had declared to me that she knew nothing at all of the matter, and did not believe the report current relative to him and Mary Schroder." That subsequently to such conversation and previous to the said fourth day of September, I heard reports to the effect that the said Margaret Langley did know something of the matter in question between the said Arthur Baker and Mary Schroder. That I was one of the Bench of Justices who sat to hear the case of Schroder against Arthur Baker on the third day or September, 1858. That finding that tbe said Margaret Langley had been subpoenaed by the said George William Schroder as a witness to give evidence in the said cause, I went on the following morning, the said fourth day of September, to see the said Margaret Langley, being interested not only on her account as being connected with my wife's family in manner before mentioned, but also on account of my wife's niece, the said Frances Margaret Buckland, that the said Margaret Langley should not compromise herself.

That at the interview with tbe said Margaret Langley on the said fourth day of September, I stated to her that I had seen that she was subpoenaed as a witness in the said cause of Schroder and Baker — that it was her duty to answer all questions put to her — that she replied she would not answer, and that the Magistrates might send her to prison if they liked—whereupon I remonstrated with.her and advised her to speak the truth, that otherwise she might subject herself to a severe cross-examination — that I had heard her spoken of slightingly with regard to one Walter Alzdorf and that although I did not believe the reports about her with reference to him, yet they tended to affect her character and reflect on her daughter, and that on account of both of them I was anxious that she should not make herself an object of public scandal and she the said Margaret Langley expressed herself annoyed that none of her friends had been to see her.

That before I left the said Margaret Langley, the said Caroline Matthews who had previously been absent at my interview with the said Margaret Langley returned, and after her return both the said Margaret Langley and Caroline Mathews put several questions to me relative to the case of the said Arthur Baker then pending. That I replied to one of the questions that as far as the evidence then went I believed Mr. Baker to be a guilty man — that I felt exceedingly sorry for him — that it was bringing scandel on the Church — that his conduct had been any thing but that of a Clergyman in mixing himself up with politics, which had necessarily made him many enemies, and but for that the matter might probably have been hushed up by his friends sending him away quietly, and that it would be a lesson to him for the future or words to that effect.

That on the Monday the sixth of September I called for the said Margaret Langley to take her to the Resident Magistrate's Court — that I then told her I had heard from good authority that she was cognizant of the main fact on the day of its occurence [sic] and cautioned her to adhere strictly to the truth and not to shew a leaning either to one party or the other.

And I swear that I did not tell the said Margaret Langley on the Fourth day of September or at any other time to take warning whatever she did not to give evidence in favour of Mr. Baker and that if she did she would have awkward questions put to her about master Alzdorf. And I also swear that I did not on the said Fourth day of September or at any other time say to or in the presence of the said Margaret Langley and Caroline Mathews or of either of them. "Mr. Baker is sure to be convicted — he should not have meddled in politics — if he had been on our side, we would have got him through even if we had thought him guilty."

And lastly I swear that I did not say to the said Margaret Langley and Caroline Mathews or to either of them any thing from which it could possibly be inferred that the Bench would be influenced in its judgment by political feeling.