A.—lA

2

2. That the previous history of the murdered woman renders her adultery not improbable ; that it was generally supposed to be notorious ; that it was unquestionably believed by the prisoner, and apparently by the jury also, who would have recommended him to mercy on that account, had not the Judge forbidden them to do so. The first consideration has very great weight with the Governor. His Excellency thinks that even the evidence given, adduced as it was wholly on behalf of the Crown, would have been sufficient to enable counsel to raise a possible presumption of manslaughter; it being alleged, and apparently admitted, that the woman had been banished from her husband's house, and was killed whilst endeavouring to force herself into it again, having just effected entrance by the window, after having been successfully repulsed in her attempts to force a passage by the door. It is quite impossible to say what might have been the verdict of the jury had this view of the case been put before them ; or by what evidence it might have been supported, had a properly-conducted defence been insisted on. Moreover, had the prisoner been defended, doubts may be entertained whether a successful resistance might not have been offered to the admission of the most important evidence against him ; evidence which the Judge allowed to be given with manifest hesitation, first saying that he would admit it if the prisoner consented to its reception (a course not altogether in accordance with that prescribed by the best English authorities), and subsequently (the prisoner having refused to do this) admitting it at the request of the prosecutor who, in answer to a question from the Judge, " took the responsibility " of the step —a responsibility resting, as it cannot but appear to His Excellency, with the Court alone. The second consideration has, of course, no legal value, nor does His Excellency attach to it all the weight which some might be inclined to do, but it is impossible to exclude it from all influence when considering whether the circumstances are such as to permit or preclude the exercise by the Crown of the prerogative of mercy. It should not be forgotten that the jury desired to recommend the prisoner to mercy on the ground of his wife's misconduct, but were directed by the Judge not to do so, there being no evidence on that point before them ; that is to say, there having been no defence, and no evidence given except what was called' for 'the prosecution, which was, of course, not likely to adduce evidence exculpatory of the accused. On the whole, therefore, His Excellency cannot say that he is thoroughly satisfied that the murder was not the result of the struggle caused by the woman's efforts to re-occupy her husband's house, or that the case is one the circumstances of which preclude the Crown from sparing the life of the criminal. His Excellency, therefore, remits the penalty of death, as advised by the Hon. the Premier, commuting it to that of imprisonment for life, and directs the necessary papers to be made out accordingly. Government House, Auckland, 11th January, 1881. A. H. G.

No. 3. Mr. Justice Joiotston to the Hon. the Ministeb of Justice. Sib, — Judge's Chambers, Christchurch, 3rd September, 1881. I have the honor of enclosing a memorandum respecting the trial of Wi Wharepa for murder, for the information of His Excellency the Governor; and I venture to express the hope that the same publicity will be given to it as has been given to His Excellency's minute on the commutation of the sentence. I have, &c , The Hon. the Minister of Justice. Alexahdee J. Johnston".

Enclosure in No. 3. Begina v. Wi Whaeepa. Memorandum of Mr. Justice Johnston for the information of His Excellency the Governor. Hating seen in the public newspapers a copy of a minute by His Excellency with respect to the commutation of the sentence of death passed by me at the January sittings of the Circuit Court of the Supreme Court, at Christchurch, upon Wi Wharepa, for the murder of his wife at the Chatham Islands, which seems to reflect upon the manner in which the trial was conducted, I feel it a duty to myself to make the following statement of facts, which may not have sufficiently appeared in the transcript of the notes of evidence forwarded by me to His Excellency immediately after the trial: — 2. It is alleged in the minute that the first consideration which His Excellency took into account, and which, he says, had very great weight with him, was that the prisoner was undefended. Now it was publicly intimated to the prisoner in Court, before the commencement of the trial, that, if he desired it, counsel would be assigned to him, and a proper fee provided .for the purpose by the Government; and I have been informed from trustworthy sources that, before the trial, he was urged to accept the services of counsel, but that he positively refused to do so then as weli as in Court. 3. The prisoner showed by his manner and language that he fully comprehended the proceedings ; and it was proved he understands English very well. The Eev. Mr. Stack, a clergyman of the Church of England, who has been for many years acquainted with the Maori people, acted, at the request of the Court and the prisoner, as interpreter on his behalf, and explained all the proceedings, and gave him all the assistance in his power. 4 In the second consideration mentioned in His Excellency's minute, it is stated that the jury ■would have recommended the prisoner to mercy, on the ground of adultery committed by his wife,'had not the Judge forbidden them to do so. What actually occurred was this: That the foreman of the jury, on coining into Court about an hour after they retired, announced that the jury were unanimous in finding the prisoner guilty, but were not unanimous with regard to a recommendation to mercy. On that finding, a general verdict of " Guilty " would have been entered on the record; but I thought