(159)
Attorney General.—You will remember this passage in one of Dr Bridges': that the libellous matter was tried, and that the publication thereof was for the con (reads) "I do belong to a secret society, and so does the Chairman of this Commission, and I hold the proud position of master for the year of it—the Zetland Lodge of Free masons."
Mr. Cleverly—Yes. It was given in his defence, and I could not interfere with it. Could I have struck it out I would.
THIS CLOSED THE CASE FOR THE CROWN.
the defendant on both these issues?
Foreman.—Yes.
Attorney General—My Lord, Then I apply for costs on both pleas. By Section 8—Chapter 96,—Act 6 and Victoria,
"If the defendant be acquitted, he shall be entitled to recover from the prosecutor the costs he shall have sustained by reason of the indictment; and in the case of special justification, if the issue thereon be found for the defendant, he shall be entitled to recover from the prosecutor the costs he shall have sustained by reason of such plea:—such costs so to be recovered by the defendant or prosecutor respectively, to be taxed by a proper officer of the court where the indictment was tried."
Court.—And payable by the Crown?
Attorney General.—Yes, my Lord. By Section III Ordinance 4 of 1847, which runs—"in all proceedings where costs would have been recoverable by or for private parties, they shall be recoverable by or from the Crown."
Court.—Then you shall have them.
Registrar.—After paying them Ten Dollars each, Gentlemen of the Jury, you are discharged.
This report, prepared by the defendant, in part from his own notes, in part from those taken by Acting Deputy Registrar of the Court, has been submitted to the Counsel for the prosecution, and a majority of the Jurors, and he is permitted to say that, amendments having been made to the suggestion of the Jurors, there is no error in it—it is a fair report of what took place.
(158)
Attorney General.—You heard what he said last night, and asked him if he could give you any information regarding the memoranda as we were anxious to obtain them. He said he could not. He supposed they must be with the rest of the papers, and that he had given no orders for their destruction.
Mr Cleverly.—It was. I had written, I think the day before, to the Secretary of the Superintendency to enquire about the memoranda only; the answer was they were never in their possession, and they never had them. Almost immediately afterwards, on the same day, I wrote a second memorandum to the Secretary inquiring about the Chinese documents. The answer to that was—Mr Mongan states they were burned by order of the Acting Colonial Secretary.
Attorney General.—You heard Mr Davies's correspondence last night—Is not all that fresh evidence?
Mr Cleverly.—It is. None of it was laid before the Commission.
Attorney General.—You remember hearing of some letters by the non-official Justices—This, for instance, from Captain Ricketts (see page 129 back) in which he agrees with the minority that Mr Caldwell is unfit to be a Justice of the Peace, (reads.) I will also read you Mr Gibb's, Mr Campbell's, and the Hon'ble Mr Dent's (all printed at the page above referred to) Mr Lamond J.P., too, also stated that he objected to the decision arrived at.
You remember that both the Attorney General and Mr May were examined before the Commission.
Mr Cleverly—Yes.
Attorney General.—To save time I will read over your deposition at the Police Court.—
"I was present at the Legislative Council on the 10th and 14th May last. I remember the Attorney General referring to certain papers in the Ma-chow Wong case as tending to support his statement against Mr Caldwell. His reference was made on one or both of those days. I remember similar references being made by the Attorney General and Mr May before the Caldwell Commission on various days previous to the 17th June last, and think I remember on an early occasion Mr May prefaced his evidence with a request that the Commission would call for those books, papers, and memoranda. After consulting with the Commission, I prepared a memorandum to that effect, and sent it into the Colonial Secretary's room. D'Almada came to me and said that they were not in their possession, and that they were handed over to the Superintendency. He came back a second time and showed me the minutes of the Executive Council to that effect. I remember at the close of the day, the Attorney General coming up to my chair and speaking in a low tone to me, that Mr D'Almada had just told him that those documents must be in Mr Wade's hands, but that he, the Attorney General, knew from Mr Wade himself, before he left for the North, that he had done with them, and that the Attorney General thought that if it was pretended they were missing, it would be ground for the Commission to call Mr May to give secondary evidence of their contents.
...
I remember previous to the sitting on the 17th June, that I had a conversation with the Attorney General, and intimated to him that the Ma-chow Wong documents which were transmitted to the Superintendency had been burned, that officers of the Superintendency knew nothing whatever of the memoranda. The Attorney General, after some general remarks regarding the act, said he felt convinced it was done...
Mr Cleverly—That is all correct.
Attorney General.—Very good; and you repeat that there was nothing whatever in the demeanour of the Governor or the Acting Colonial Secretary on the 14th of May, to lead us to suppose that an order had been given in March for the destruction of the Ma-chow Wong papers.
Mr Cleverly—Certainly not.
Attorney General.—Do you remember any reference being made before the Commission to the fact of Mr Caldwell being a free mason?
Mr Cleverly—Yes, I thought the remarks very injudicious. Dr Bridges said he was desirous of assisting Mr Caldwell not only as a friend but as a free mason.
Attorney General—I need not ask you, Mr Cleverly, whether it is not inconsistent with the principles of free masonry to allow any such considerations to interfere with the ordinary course of justice between man and man?
Mr Cleverly.—It is most irregular to import such things in proceedings of Courts—The spirit of free masonry does not warrant it.
Attorney General.—Do you know how it happened that neither in Mr Day's nor Mr Dick's notes, was any reference made to those remarks?
Mr Cleverly.—I do not know why Mr Day did not take it down. It must have been in Mr Dick's minutes and struck out by the Commission.
Attorney General—Did Mr Day say it was an improper allusion to make?
Mr Cleverly.—I do not remember whether he said so at the time, he did afterwards.
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