Merely to hand the depositions to Counsel, and for him to defend a prisoner at a fixed fee, with them only as his instructions, is a mere delusion. All grounds of defence require to be ferreted out. They are often unknown or unthought of even by the accused. All this is painfully impressed on my memory by the fact that four absolutely innocent men were once convicted of murder through conspiracy to obtain an advertised reward. They would have been executed, but that an accident postponed the day of execution. Their innocence was afterwards absolutely proved, and they were discharged, but after weeks of agony, and the conspirators were convicted. On looking into that case, I came to the conclusion, with the light I then had, that if a witness, not called for the Crown, had been called for the prisoners, the conspiracy would have become patent at once; but Counsel, not having had time or opportunity to ascertain the facts, the witness was, probably in the exercise of a wise discretion under the special circumstances, not called.
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A defence, not to be a delusion, minst be thoroughly got up."
"I have the honour to be,
Sir,
"Your most obedient Servant,
42
JOHN SMALE,
*C
Chief Justice."
2. In addition to recording his opinion that a trial for murder where Counsel and Solicitor are not both assigned for the prisoner is a delusion, His Honour conveyed to me subsequently on two occasions his conviction that in this Colony especially, no exception whatever from this rule should be allowed, inasmuch as the majority of those that may be tried on a capital charge would probably be individuals unacquainted with the practice and procedure of our Courts and of whose language neither the Judge nor the Jury had any knowledge."
upon
3. The Chief Justice's opinion, in which I entirely concurred, was not, however, acted in the recent case of CHEUNG ASHIN, who was convicted of murder and sentenced to death.
4. Inform the Acting Chief Justice and the Attorney General, that in all future cases where a man is tried on a capital charge, I think SIR JOHN SMALE's opinion and practice should be adhered to.
To the Honourable
ACTING COLONIAL SECRETARY.
J. POPE HENNESSY.
2nd July, 1878.
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