H.—37

20

Newspaper Comments on the Case. (Timaru Herald, 25th January, 1895.) We have no objection whatever to raise to McCarthy having been admitted to bail, and we refer to the matter simply because it points to the conclusion that the police have (or had at that time) no real evidence that prisoner was instrumental to the death of the man whose body was found by the wayside. If the police had had a primd facie case they would have strongly objected to the acceptance of bail, and if after their protest the Justices had still shown an inclination to take bail, the police would certainly have disclosed enough to make it evident that there was a genuine primd facie case, and would have called the attention of the Bench to what Mr. Justice Johnston says about the refusal of bail on charges of murder. But as far as we can gather no objection was raised. Again, it is impossible to believe that if the Bench had thought there was a primd facie case against McCarthy they would have released him. The fact is that the police, being completely puzzled by the mystery surrounding the death of the man, set up the theory that on the occasion when he called at McCarthy's house (a day or two before the death) McCarthy, in getting rid of the man, used the violence of which the latter subsequently died. We have very carefully studied the full evidence given at the Coroner's inquest, and it certainly does not disclose a case against McCarthy. He may be guilty, but, if so, the record of his crime is not to be found on the depositions. (Timaru Herald, 7th February, 1895.) _ We referred yesterday to the extraordinary action of the Grand Jury in throwing out the bill against the second mate of the barque "Franz," thus going right in the face of the law as laid down by Mr. Justice Denniston. To-day we shall say a few words about the McCarthy case, in dealing with which the Grand Jury appear to have profited by his Honour's remarks. It will be remembered that some days ago we expressed the opinion that McCarthy ought not to have been arrested, for the very sufficient reason that there was literally no evidence against him. His Honour 'said nothing about the arrest, but he was very outspoken as to the absence of evidence, and in default of evidence McCarthy should not have been deprived of his liberty for an hour. We do not mention this case again merely for the purpose of showing that our judgment was correct. If that were all, we should be content with what has already appeared in our columns. But we regard the question at issue as a most important one. The liberty of the subject is not a thing to be lightly interfered with, and when it is so treated it is the duty of the Press to call immediate attention to the fact, and protest against the wrong. There is, of course, not the smallest ground for believing that the authorities acted otherwise than in perfect good faith. A man had received injuries which, if they did not directly cause his death, at all events must be taken to have hastened it. It appears to be a fair inference that if those injuries were inflicted by some person, he was legally guilty of murder. On proof of the fact that he had dealt the blows, it would be for him to show justification, if he could; but that would have to be before a Court of justice, and meanwhile it would be lawful and necessary to deprive him of his liberty. In this case there was, to start with, the fact of the man's death, hastened, let us say, by the fractures and other injuries which he had received. Thus there was a foundation for energetic action on the part of the authorities. But at the very outset they were met by a grave difficulty, and one which has not been surmounted to the present moment. It is not clear that the injuries were inflicted by intentional human agency, or, indeed, by human agency at all. Very many intelligent people believe that they were caused by a vehicle of some sort having run over the man in the dark, the driver going on without being aware that an accident had happened. It has also been suggested that a stray horse may have run over and kicked the man. These are mere theories, but they were spoken of immediately on the finding of the body, and it can be said of either of them that it would account for the injuries. The authorities, however, very soon came to the conclusion that a murderous assault had been committed. They may have been right, and, as they entertained that view, it was their duty to seek for the assailant. They did so, and speedily arrested McCarthy. We need not weary our readers by recapitulating the evidence which was given at the inquest, and before the Magistrate. The Coroner's jury declined to connect McCarthy with the affair, and returned a verdict against some person or persons unknown. The Magistrate sent the case for trial, but remarked that it was a very weak one, and found an excuse for his action in the fact that the Supreme Court was going to sit almost immediately, and that, on the supposition of the prisoner's innocence, it would be to his advantage to be cleared by a jury. This brings us up to the point at which Mr. Justice Denniston commented on the case at the opening of the sittings. Let us see what his Honour said, so that we may have the advantage of the opinion of a trained lawyer, and whose special business it is to weigh evidence, and whose impartiality is beyond all question. After sketching the case as it was presented in the depositions, his Honour said, "It was important to notice that there was not a particle of evidence directly connecting the accused with the deceased's injuries, except that deceased went to accused's house on Thursday night, and that the accused fed him, as shown by Davies, at 2 p.m. on Friday. But for this there would have been nothing but conjecture to connect the accused with the matter. He need not say that a man's liberty is not to be jeopardized on conjecture." His Honour then proceeded to state what he assumed was the theory of the Crown. He stated it quite correctly. It was, that there had been a row at McCarthy's house with deceased, and that McCarthy there and then inflicted the injuries, and subsequently removed deceased to the place where his body was found. His Honour admitted the possible truth of the theory, and even went so far as to say that it was probable or plausible. But he pointed out that there were other reasonable theories; that "there were many ways in which the man might have been injured—by accident, or by some other person than the prisoner." The conclusion arrived at was that there were only one or two suspicious circumstances in the evidence, "of which it was impossible to make a rope to drag a man to his trial." He said that on such