PUBLIC RECORD OFFICE
Reference :—
LICO. 882
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
32
2 July 190
MAI RITIES ROYAL COMMISSION. 1909
Hon FA HERCHENRODER, KC
Zone before the Executive Council, and they would have died whether the man was to be prosecuted
1, either he would have been prosecuted for a mmmi offence, and then further action would have Iepended on that, or, if they had thought there was tot a case for criminal prosecution, they would have smoord him That would have been all; there would have been an end of the business?-Undoubtedly I am glad to say that this is what is being done now and has been clear since 1995, I do not mean by myself,
It by the Governor.
gwen to UN.
12. These are three cases which have been The other day, when Mr. Manila was being examined here. he raised some question about the magistrates, and he has now sent us a statement One is the ut these cases, which 1 will read to you. Case of a man called Kalka, who is now in the central prison; he says, "with five others detained on remand on charge of attempting to murder Mr Bechard, of Ha tour or five marks still ou Be Etang Estate. legs of beating inflicted by Bechard months ago De Vinson, Government Medical Officer-Créole of Mauritius has not cared to certify the injuries even with fairness, and the parquet has not thought it possible to enter any prosecution against Bechard * On contrary, Kalka was sentenced to one month's That is a sort imprisonment for refusing to work. “
of general charge apparently, that somebody ought to have been prosecuted, and that your parquet thought that there was not a case? It is the usual thing. Of course, that case of Kaiku and others attempting to murier Mr Bechard is a serious case, in which a preliminary mpiry is going on before the magistrate, and which will end in the men being committed to the next session of nanizes. Of course, it is competent for them to furnish bail if they can. but I suppose they cannot As for find bail, and that is why they are detained. the charge that one of the men was beaten and was examined by Dr Vinson. and he has not cared to certify the injuries with fairness our prison; surgeons, It suy, are very fair indeed, and if Dr. Vinson had found any marks of heating on the man, he would have reported it We hal last year a somewhat similar case which is known under the name of the Labourdonnais
se
CIMA
12.132. He has got something to say about that case ton-He behaved most extraordinarily in that The case on the Labourdonnais Estate, in a unt shell, is as follows. The manager of the estate, or one of the chief employees there, one Morel, told a certain The man would not do No. man to go to work. Morel told him again, and again he would not, and then Morel struck him. He had no business to strike the man; that is perfectly true.
12.193. (Mr. Woodcock.) Was he prosecuted for striking him-Yes, he was prosecuted, not only on the advice of the parquet, but after a personal inquiry made by the Protector of Immigrants.
12.134. I mean, was the manager prosecuted?-- Yes, after an inquiry made personally by the Protector Immigrants on the state, and the Protector of Immigrants came to the conclusion, which we shared, that it was simply a case of ill-usage, and the manager was prosecuted before the stipendiary magistrate, and was fined Ra. 75 and lost his situation. place after was this.
What took
I remember this man went back and got his comrades together and they so assaulted Morel that they left him for dead. He did not die, because there was time to send for some assistance. They had to inject cafeine in his velas, as he was losing blood profusely from a land cut on the shoulder.
12.135. (Chairman.) Thin was after the whole thing had taken place P--Yes.
12,136. After the man had come back from prison P -No, no, on the same day Morel struck the Indian. the Indian came back and fetched a few friends and they left Morel for dead.
12,187. You mean it was all one assault-Yes, all ene transaction.
18,188. Morel struck the Indian, and then the Indian collected his friends and they beat Morel P— They tried to kill him.
¿Continued.
12.139. (Mr Woodrock.) Morel in the meantime having been fined?-No, the assault on Morel took I ought not to have explained place on the same day it so quickly
12,140. (Chairman) Then what happened in the case Morel was charged with assaulting the Indian and was fined Rs. 75, and the Indian is now going to be charged, or in charged with attempted murder?-- clear cua of uttempted They were charged ou a murder.
12,141. But it all arose out of the same prosecution. in which you say that Morel was the original offender' -Yes, but they had gone away and they came back afterwards and deliberately tried to kill Morel. The case was brought before the Court of Asizes, and there the jury returned a verdict, which to my mind was a lenient verdict. As I have stated, they generally do when there is a question of premeditation, they discarded the premeditation, and the judge gave the I may maximum sentence of two years' imprisonment. say that our Protector of Immigrants gave the greatest care and attention to this case.
12,142. I have read all the papers about it. I know all about it. Here is a case here that Mr. Manilal gives of Rex r. Kaveriama, "Committed by District Magistrate. Grand Port, on charge of murder detained nine months before she applied to Governor, and then the parquet set her at liberty (March 1909, about). nu evidence against her"-1 "saying there was
L
could send you full details about this case, which, in the ordinary course of his duties, fell to the lot of the additional substitute, but the main points, from what I remember, are these This woman and three men committed a brutal murder towards the middle of last year (September). The quiry into the facts took a very long time, and the magistrate committed the woman and the men towards the end of January kust. The case could not come before the first assizes, the asaizes of February, and it was one of those cases in which the additional substitute required a fuller inquiry and further investigation into the facts. because there is not the slightest doubt that there had been murder. The police worked at the case for another two months, trying to collect further evidence in addition to that on which the accused had been committed. There is a report to the Governor on this Bubject. It was found ultimately that there was no chance of getting a verdict of murder, and the woman. although she was deeply implicated in the case, had to be released, but she was released in the ordinary course of administration of justice.
12,143. (Mr. Woodcock.) Do you say that she was there nine months?-I do not know, as a matter of fact, for how many months.
12,144. For several months ?-She was there for several months.
12,145. I do not think the facts, as you put them to us, satisfy me that she ought to have been detained many monthe-I could produce the report of the additional substitute, but I can say that his report satisfied me that there had been no "laches" on his part. 12,146. Assuming there was a murder, assuming that you were pretty morally certain that these people had done it, you must not go on for months and months, must you, trying to finding evidence and keeping the suspected people locked up? I mean, there must be s limit. As you no doubt know, in England we safe. guard the liberty of the subject by bringing him up each week before the magistrate, and unless there in a good reason given by the prosecutor the magistrate will discharge him? I could send you the details, because it in there that the whole facts would be found, It is a work which was done under his own responsi- bility, but when I heard of the case, I asked for explanations, and he gave full explanations, which, if you care to have, I will forward. The difficulty in that case was that it was not possible to release the woman pending the inquiry, because it was a charge of murder.
12,147. (Chairman.) What Mr. Woodcock says Wan,
no doubt, in Mr. Manilal's mind, because I may say, ever since I entered the Government service the pmotion has always been that the prisoner must h brought up every week, and every week the magistra
20 July 1900.]
MINUTES OF EVIDENCE.
Hon. F. A. HERCHENRODER.
says, I am not going to keep the prisoner much longer, and if you are not going to charge the prisoner, I shall let the prisoner go, and to keep a prisoner waiting like this for months, I confess, is not right. It is an exceptional case, but in fairness to the police authori- ties. I should say that the enquiry before the magistrate, wing to the intricacies of the case, lasted some time. I do not know on what date the woman was arrested; I believe near the end of September, so she was remanded from time to time by the magistrate whilst the case was proceeding until commitment at the end of January. If she remained in prison nine months, two- thirds of those nine months were whilst she was under rand from time to time by order of the magistrate.
12.148. There, you know, the police could give a good reason week to week for the remand. For the first week or two the magistrate would say, Yes, of nurse, but by and bye he would say, Unless you give me some reason, I will not remand the prisoner simply because you say. Oh, we are waiting for this, or we are waiting for that; they would really have to give some reason for it, otherwise he would say, I do not detain the prisoner; you must either try her or let her go?— I have dinned that in the ears of the magistrates; I have really.
12.149. (Mr. Woodcock.) It is a grievous wrong ?--I assure you that I have called the attention of the magistrates to it before.
12,150. (Chairman.) Here is another case, exactly the same kind, only the name is not given; I suppose he does not know it. He says: "Committed by Dis. trict Magistrate, Black River, for rape; was in prison for seven months without being tried. Still ther?"—That is hardly possible. What is the name of the man ?
12,151. He has not given it. It is "query, still there "If it was a case of rape he must have been release, and he does not know it.
12.152. It is a case of rape; has been in prison seven months without being tried. It is in the District of Black River on a charge of rape F-I should like to find that out, but I think I ought to make this state- ment to you. These cases, unless they are brought to my notice by the responsible officers, must of necessity escape me; I mean, unless they are brought to my notice, I have no control.
12,153. Of course not. How can you——
12.154. (Mr. Woodcock.) As regards the source of our information in those cases, of course it is very strictly confidential P-Quite so. Would you like me to send you a note about the case at Black River, and find out about it, because there might not be anything in it P
[Continued.
33
12,155. (Chairman) Yes, perhaps it would be just as well!—Would you care to have the report of the additional substitute in the case of the woman.
12,156. I think you have told us what actually happened there. The thing has been done and the woman is free, and I do not think there is much more to be said. I do not think that you can help us about it you have told us what you know of the facts.
12.157. (Mr. Woodcock.) What is your view about jury trials in this Island P-A jury is very good in ordinary cases, but if a Government servant is prove cuted for embezzlement, or for any offence connected with the disposal of money under his charge, it is very difficult to obtain a conviction. I would not say that just now in public when I was referring to the juris- diction of the bench. I have on the stocks a Bill to enable cases, where money has been purloined by Government servante, to be tried by a bench of magis- trates, because we have had one or two prosecutions which have resulted in a miscarriage of justice.
12,158. How would you limit the trial by jury ?— By the use of the discretion of the Procureur General, sa in other casen, The Procureur General can send a man before the assizes even in a case within the jurisdiction of the magistrates; he can choose his jurisdiction under our law.
12.159. I do not quite follow what power you would give so as to alter the existing state of the law P- I will simply state this: Embezzlement by a public functionary is punishable by penal servitude and a fine --I would say that cases under Article 122 of the Penal Code may be referred by the Procureur General to a bench of magistrates for trial.
12,160. You would not be in favour of the jury system as it stands, but you would be in favour of taking cases away from themf-The cases where there is most likely to be a miscarriage of justice.
12,161. But, leaving the jury system as it stands, otherwise we want your view of it P-You.
12,162. (Sir Edward O'Malley.) Just let me ask you a question which arises out of that.
You say you have an Ordinance on the stocka ?—Yes, which gives the Procureur General power to send them down to the lower jurisdiction; to take them away from the jury.
12,163. To take them away from the assizes and send them down to the lower jurisdiction?—Yes.
12,164. And those are functions beyond the ordinary limits with which a bench can deal?—At present yes. but they can be made competent by a stroke of the pen; it is possible that the Bill will be opposed in Council, but I expect we shall have a majurity,
The witness withdrew.
Adjourned till Thursday next at 10.30.
(6.)
REPLIES of His Honour 812 L. V. DELAFATE to Written Questions.
C. 1.-(a) In my Chambers-My clark.
(b) In the Master and Registrar's Office.The master and registrar and five clerks.
(e) In the Registry.-Six clerks and the shorthand writer.
(d) In the Accountant in Bankruptcy's Office.-The accountant and one clerk.
(e) The librarian of the Supreme Court.
ABSENCES.
>
(1) One clark (6th Clerk Master's Office) is absent on leave, is not replaced and might not be replaced. Fida answer to Question C. (4).
(ii) The shorthand writer is expected to attend only on Mondays and Fridays during Term time. answer to Question O. (4).
C. 2. (a) My clerk, Ra. 3,000.
Vide
Attends to Chamber business; is in charge of official correspondence, and attende in Court when I am on the Bench; he also acts as interpreter for the French and Créole dialects, and has his hands full
2700, &c.
C
I