C.A. 1901. REX V. CLELAND. being put to him again, the accused, both to the Crown Prosecutor and to the Judge, would neither admit nor deny the statement, but said, "I cannot remember. I don't remember making that statement." 66 To prove the falsity of the evidence given by the accused on the 18th of February, the two persons, H. Cole and A. C. Broad, to whom he was alleged to have previously made a different statement were called. The evidence of Cole, who was a commission agent at Christchurch, was to the effect that he had known accused some nine or ten years, and had travelled with him from Christchurch to the West Coast on the 12th of February; that accused had told him that he was a witness in the salting case, and had said that he (the accused) had met Lawson in August and had sold him some horses, and that while Lawson was at his place Lawson had shown him and his wife a sample of gold: that his wife remarked she would like a sample; that Lawson promised he would bring her one when he came over in November to the Show; that he had met Lawson in the beginning of November either on Show Day or a day or two before, and arranged to meet him on the showgrounds the following day, where the horses were; that he had been at the Show, but had not seen Lawson, and had not seen him since; that he bad received no gold from Lawson; that he did not know Lawson had got the gold, but he presumed it was to give him the gold, but that they were too busy to meet. Cole further stated that the accused had afterwards told A. C. Broad the same story in his (Cole's) hearing on the coach, upon the same journey: that accused pulled the subpœna out of his pocket; that he (Cole) noticed it was for Greymouth, and asked why the accused was going to Kumara instead of Greymouth; that accused said Lawson had written to him to come to Kumara, and that he had received £5 for his expenses. Neither Cole nor Broad was a witness in the salting case. Cole, however, having seer. a newspaper report of the evidence which the accused gave in Court on the 18th of February, saw him in Greymouth on the 19th of February and spoke to him about his evidence. The following is Cole's evidence of what took place on this occasion: I pointed out that his evidence given in Court was very different from what he had told us, and I thought he had laid himself open to a charge of perjury. I said I didn't want to ask what he said, or if he had committed perjury, but his evidence was misleading as reported, and that he ought to qualify it. I don't think I repeated to him what he said to me. I pointed out that he had said in Court that the gold had been given to him in Christchurch, and that that was very different to what he had said to us. He said he had not committed perjury; he also said something about not being asked questions about the gold he produced in Court that he had not been asked when he got the gold, or whether that was the particular gold that he got in Christchurch. He practically agreed that the questions had been arranged so that he should only answer them, the effect of which would be to mislead the Court. I gathered from what he said that he would have told the truth if asked all the questions. I went to him as a friend. I advised him to go before the Judge next day and explain what seemed to be discrepancies in his evidence. He promised to do this. I suggested he should keep quite clear of the Lawsons and their solicitors in the meantime. Saw him next morning before Court. Said he would not do anything; that he had received advice, and would stick to what he had said before. I remained in Court that morning. He made no explanation. Cole further stated, upon cross-examination, that he had told the accused that if a charge of perjury was laid against him he (Cole) would have to give evidence against him; that accused had said, "What I was saying to you was not on oath"; that he (Cole) could not say that accused did not say that "the questions had been put in order," but that he gathered from him that the questions had been put in such a way that he would not tell the whole truth; and that he (Cole) recognised that accused was a man who would be easily talked over, and was not a strong-minded man. The evidence of A. C. Broad was as follows: ALFRED CARTER BROAD.-Passenger by overland coach, 12th. Cleland joined our coach at Castle Hill. I learnt from Cole he was a witness. I didn't know if he was for the Crown or defence. The question came up. I said I wished they would hang him-Lawson. I then found he was witness for defence. He told me Lawson came to his house at Belfast and bought two horses from him, and that while he was there he produced some gold; that his wife wished for some, and that Lawson said he was coming over to the Show and would bring her some; that Lawson did come over to the Show, and arranged to meet him at the Show, where the horses were; that Cleland was there, but did not see Lawson; that he got no gold from Lawson, nor did his wife. This was during a number of conversations for a number of hours. I remember saying at the end, "You are going on a wild-goose chase. You "will do no good for him." I recognised Cleland was a man easily led, and I said, "Never mind what you say, but speak the truth." I had seen his subpoena, and he had told us he was going to Kumara. He said he got £5, and that the first question he should ask was where he should get his expenses. At the close of the case for the prosecution counsel for the accused asked the Judge to direct an acquittal, on the ground that, as the only evidence of the falsity of the statements alleged to have been made on oath by the accused, on which perjury had been assigned, was the evidence of two witnesses who alleged that the accused had made to them, before the time of his making such statements on oath, statements incon C.A. 1901. REX V. CLELAND. C.A. 1901. REX V. CLELAND. sistent with the statements so made on oath, the accused could not be convicted. Counsel cited Reg. v. Hook(1), Reg. v. Wheatland (2), and Rex v. Harris (3). The Crown Prosecutor cited Rex v. Knill (4). Denniston, J., ruled, on the authority of the judgment in Reg. v. Hook(1), that evidence of statements by the accused inconsistent with those on which the perjury was assigned was insufficient to justify a conviction. His Honour also ruled that the conversations with Cole subsequent to the trial did not amount to corroboration, and directed an acquittal. At the request of the Crown, His Honour reserved the point. H. D. Bell, for the Crown, stated that he proposed merely to lay the authorities before the Court, and that he did not feel able to offer any argument. The authorities were collected in Russell or Crimes(5), under the heading "Contra"dictions by Defendant." Rex v. Knill(4) and another case (unreported) referred to in Russell on Crimes(5) were cases of contradictory oaths of the defendant. Those cases, so far as they went, were authorities for the Crown; but they had been afterwards disapproved, and it had been held that it must be proved which of the statements was the false one. In the case now before the Court there was not the slightest evidence which statement was the false one. In Reg. v. Hook(1) the ground was that there was abundant evidence of the truth of the unsworn statement. Guinness, for the accused, was not called on. STOUT, C.J.: We do not think that it is necessary to call upon you in this case, Mr. Guinness. According to our Criminal Code, before a prisoner can be convicted of perjury there must be more than one witness to speak to the falsity of what he has sworn to. In this case reliance is placed upon a statement made by the accused himself, to two persons who were called as witnesses, which is different from what he stated on oath in Court. This statement of his was not on oath, and when examined on oath he gave an entirely different version. The question is whether the fact that he had previously made an entirely different statement, not on oath, is sufficient evidence that the statement which he made on oath was false. I think (1) 27 L.J. M.C. 222. (2) 8 C. & P. 238. (3) 5 B. & Ald. 926. (4) 5 B. & Ald. 929, note (a). that it cannot be said that it is sufficient evidence that his oath was false. All that can be said is that he lied on one occasion, either when making the previous statement or when giving his evidence. The case of Reg. v. Hook(1), and especially the judgment of Mr. Justice Wightman, shows clearly that the fact of the accused having previously made a different statement is not alone sufficient to prove perjury. The only other point is whether the statement which he made afterwards is evidence that he had committed perjury in what he said in Court. But he appears to have distinctly said that he had not committed perjury. It may be that what he said to Mr. Cole was not a correct statement of what had taken place in Court, but I do not think there was anything which amounted to an admission that he had committed perjury. I think, therefore, that the learned Judge was right in directing an acquittal. WILLIAMS, J.: I am of the same opinion. I think the case is concluded both by principle and by authority. DENNISTON, J.: I am of the same opinion, and I should not think it necessary to add anything to what has been said by the Chief Justice and Mr. Justice Williams, except for the fact of my having reserved the case, and that I ought perhaps to state my reasons for doing so. I felt considerable confidence upon the matter at the time-so much so that I adopted the course of at once deciding the point raised by counsel in favour of the accused, instead of allowing the case to go to the jury and reserving the question. But I did not consider the matter to be altogether clear upon the authorities. The text-books seemed doubtful, and Reg. v. Hook(1) is not really a decision upon the point, because in that case it was held there was corroborative evidence, and the conviction was affirmed. There was, therefore, no positive statement of the law upon the subject. In Reg. v. Hook(2) Chief Baron Pollock treats the matter as not definitely settled. He says, "It appears to me quite clear that the conviction is right, even assuming that "The King v. Knill(3) is not now quite safe to be acted on, though it is supported by the judgment of the Court of 66 (1) 27 L.J. M.C. 222. (2) 27 L.J. M.C. 222, 224. VOL XX (3) 5 B. & Ald. 929, note (a). C.A. 1901. REX v. CLELAND. ('.A. 1901. REX V. CLELAND. 66 66 Queen's Bench in Lord Tenterden's time, and in that of Lord Mansfield." And then he goes on to say that рго"bably no Judge would now act upon it without some con'firmatory evidence." And one of the other Judges expressed himself with the same hesitation. So that, although no doubt there is a clear current of opinion throughout that case that such evidence as there is in the present case, standing alone, would not be sufficient, that case did not amount to a decision upon the point, and it did not appear to me to be so authoritative as to conclude the matter. That being so, and as the Crown asked that the point should be reserved, and it is one which may very well arise again, I thought it best that there should be an opportunity for the authoritative decision which has now been given by this Court. CONOLLY, EDWARDS, and COOPER, JJ., expressed their con currence. Ruling confirmed. Solicitor for the Crown: Crown Solicitor (Hokitika). Solicitors for the accused: Guinness & Kitchingham (Greymouth). S.C. IN CHAMBERS. In re WADE (DECEASED). CHRISTCHURCH. Will-Construction-Power to receive Net Rents and Profits—Moneys passing 1901. August 9, 23. through Trustee's hands--Right to Commission. A testator by his will directed the trustee thereunder to hold a certain parcel of land upon trust to allow the testator's wife to receive the net rent, profits, and other annual income thereof during her widowhood. The testator later on directed the trustec to hold the remainder of his real estate upon trust to pay the rents, profits, and annual income thereof to his daughters; and still later on in the will he directed that the trustee "may also deduct and allow himself £5 per cent. commission on all 'moneys passing through his hands in connection with the trusts of the "" will." Held, That the trustee had no right to collect the rent and profits of the land which he had been directed by the will to allow the testator's wife to receive, and, if he did, he was not entitled to deduct the £5 commission which by the will he was entitled to deduct from all moneys passing through his hands in connection with the trusts of the will. ORIGINATING summons for accounts by the widow of a testator. On the taking of the accounts the trustee claimed commission on the rent and profits of the land which, by the will, he had been directed to allow the widow to receive. The |