page 19

Observations in the Report.

I have now sufficiently traversed Findings 1 and 9. In addition to these, pages 15 and 16 of the Report contain an expression of opinion by the Commissioners that, even if Kemp had not been a trustee, a Court of Equity would probably upset my transactions with him on the ground that the leases were at an under value, that the mortgage was for unknown amounts, and that I was Kemp's adviser at the time. The Commissioners refrain from presenting any finding on this point. They appear to exercise a wise discretion. My dealings were of course passed by a Trust Commissioner whose duty it is to enquire into these very questions, and he certified accordingly. So far from it being true that a Court of Equity would upset my titles, when thus approved, the full Court of Appeal has in a recent case, Annie Moore v. Ngarino Horima and others, given unanimous judgment to the effect that (to use the language of Williams, J.), "if the Commissioner has given his certificate it is equivalent to the decision of a Court of competent jurisdiction that the transaction was a valid one," which implies of course that after the time of appeal from that officer has elapsed (as it has done in my case) the Supreme Court cannot even entertain the question. I do not wish the Committee to think that I am sheltering myself behind mere technicalities of law; on the contrary, as the Judges point out, the policy of the Legislature has been to provide, by means of the Native Lands Frauds Prevention act, a special protection for the Maori people, the effect of its provisions being (in the words of Mr. Justice Denniston) " to take the power of making an effective contract out of the natives and to place it in the hands of a public officer."

But I wish particularly to call the attention of the Committee to the contrast between the evidence and that expression of opinion. I complain especially of the way the Commissioners have dealt with my lease. The only witness who gave evidence before the Commission on the question of annual value was Mr. John McDonald, who is-referred to in the Report as " a practical farmer who knows the land intimately." He stated (p. 196) that he had had considerable experience of leasing native lands in that district, that he held a number of blocks from the Natives himself, and that he considered two shillings and sixpence an acre full value for the land I had leased, seeing that the tenant gives it up at the end of the term without compensation for improvements; and, further, that half-a-crown an acre was quite as much as he would have paid himself. The Commissioners have quoted Mr. McDonald's evidence but have entirely omitted any reference to this distinct statement. Although they had this definite evidence before them as to the annual value, they quote nothing but evidence relating to the capital value; and yet they conclude by saying (p. 16) that "the rental is greatly under the real annual value." It is also in page 20 evidence that Mr. Peter Bartholomew (through his solicitor, Mr Bell obtained about the same time from Kemp a lease of 100 acres of this same Subdivision XIV for a similar term of twenty-one years, and at the same rental of half-a-crown an acre. Moreover, even in quoting evidence on capital value, the Commissioners omit entirely to state that the valuation by the Government experts expressly includes "improvements." (It is notorious that since leasing Subdivision XIV: which was entirely bush-land, I have spent some thousands of pounds upon it.) I may add that my estimate of capital value, namely £4 an acre, is borne out by the land tax valuation, which, even now, is only £4 an acre without improvements. As a matter of fact, I could have called many witnesses to prove that at the time I leased the land, 2s 6d an acre was the ruling price in the district for the best bush land; and I now tender these witnesses to the Committee. I am about to relate the circumstances which prevented my calling them before the Commission.

The Committee will have noticed that I complain in my petition that the Chairman of the Commission gave me to understand, from the Bench and otherwise, that as regards the implied charges personal to myself and prejudicial to my honour I had no case to meet. Those charges, as the Committee will have already gathered, were, (1) that I knew that Kemp was a trustee, and (2) the point I have just discussed in connection with my lease, namely, that I took advantage of my confidential position as a solicitor to drive hard bargains with my client.

As stated in my petition, Mr. Martin (the Chairman) made frequent statements during the progress of the enquiry, to myself and others, that there was nothing to implicate me in any wrongdoing in connection with Horowhenua. Whilst the enquiry was proceeding the discussed the matter freely with many whom I could name, and made no secret of his strong conviction that (to use his favourite expression there was "not a jot or tittle of evidence" against me.

I have set out in my petition the circumstances under which, on the 9th April—after sitting for a month—the Commission refused my application, in open Court, for a subpoena to compel the attendance of the Minister of Lands. In refusing that application the Chairman said that " in the absence of any suggestion of fraud in connection with Block XIV—to which Sir Walter Buller's dealings had been confined—on the evidence already before the Commission, and in the face of Mr. Fraser's assurance that the Crown did not intend to offer any evidence at all, he did not see that he could permit Mr. McKenzie to be cross-examined as to what he had said in Parliament. The only suggestion of fraud that could be raised was by a strained application of the equitable doctrine of fraud by notice in the sale of land by Warena Hunia] to the Crown." I then said : "My object, Sir, is to compel Mr. McKenzie to meet me, face to face, and to have his state- page 21 ment on oath. Do I understand that the Commission refuses to issue a subpœna for him?"—to which the Chairman replied, "Yes, that is so—for the present at any rate."

On April 13th there was a social meeting in the Commissioners' sitting-room, at Levin, to celebrate Mr. Martin's birthday. All the Commissioners were present, most of the agents employed in the case, including myself, and Colonel McDonnell the official Interpreter. After a small presentation had been made through Mr. Commissioner McKerrow, Mr. Martin made a speech, in the course of which he stated that I had completely refuted the charges brought against me by the Minister of Lands. This statement was quite gratuitous, there having been nothing in Mr. McKerrow's speech proposing the Chairman's health to evoke it, and Mr Martin evidently meant what he then said.

Some days later Mr. Martin repeated in one of the public rooms of the hotel, in the hearing of several persons, his conviction that there was not a " scintilla of evidence " against me. Among those present was my informant, Colonel McDonnell, who permits me to use his name and is willing, if required, to give evidence to that effect.

Later on again, near the termination of the case, after all the material evidence had been given and whilst the Commission was engaged in sifting the lists of names put in by the several parties—evidence which, I need hardly say, did not affect me one way or the other—the Chairman handed down to me, sitting at the counsel's table, a slip of paper (which I now produce) with the following words written in pencil by himself, " When are we to have some evidence of fraud?"—whereupon, looking up, I responded, " Echo answers, when?" I may here mention that before deciding to make this use of the slip of paper referred to, I consulted four of the leading members of the local Bar all of whom agreed with me that I had a perfect right to do so, inasmuch as there could not be, under the circumstances, any confidential communication between the Chairman of the Commission and myself—that in fact the note was an intimation to me from the Bench that I had nothing to meet or rebut.

Let me illustrate the effect of such a series of communications on my conduct of the case by what happened in regard to the question of whether my lease was at an under-value. The Committee should understand that at the opening of the Commission it was decided that no issues could be framed, owing to the wide wording of the reference to the Commission. In consequence of this, evidence was taken in any order and in a purely roving manner; and the parties interested as a rule learnt that something that fell from a witness was of importance in the minds of the Commissioners by the fact that the Chairman asked questions upon it. I have already said that Mr John McDonald stated distinctly that the annual rent I paid was, in his judgment, full value. Several witnesses were called who had personal knowledge of page 22 the leasing value of the Horowhenua lands, but the Chairman asked no question either of Mr. McDonald or of any of these as to annul value, with or without improvements. I wish the Committee to realise how completely this silence, coupled with the repeated intimations from the Chairman that there was nothing against me, would prevent my calling any further evidence.

After the speeches of counsel had been heard, the Commission adjourned from Levin to Wellington, and, after a fortnight's interval further evidence was taken on certain points. On this occasion the Chairman put the following question to me (p. 279), "Now, with regard to the lease over No. XIV, how was the rent arrived at, and why was this sum fixed per acre—half-a-crown ?"—to which my answer was, " Kemp himself fixed it. He stated that in his evidence I left it to him." This would have been an opportunity for the Commissioners to intimate to me that they desired further evidence as to annual value, but not a hint of the kind was given to me.

Mr. Martin has, I understand, sought to justify the difference between the finding of the Report and his previously expressed opinion by stating that my own evidence when carefully analysed convicts me: and, certainly, the findings on pages 18 and 19 of the Report contain nothing but quotations—misleading ones it is true—from my evidence, But this excuse appears to miss the real point, namely, that it is unfair to condemn anyone after telling him that he need not trouble to defend himself.

I have now dealt with the question of undervalue which is not the only one on which I have been misled in this way. I suffer a similar injustice from page 2 of the Report, where the Commissioners reproach me with having acted before the Commission for Kemp and, still more for myself, at the same time that I acted for the Muaupoko, seeing that our interests conflicted with those of the tribe. As a matter of fact, on the day that the Commission opened, I put in my retainer signed by sixty-nine persons. On its being stated that Mr. Alex. McDonald had been employed by the Minister of Lands to appear for the Muaupoko tribe, I at once, in open Court, read out the names of those who had signed my retainer, and invited any member of the tribe who would prefer to be represented by Mr. McDonald to withdraw his name. There was no response to this. Thus at the very beginning the tribe showed, in a very unmistakeable manner, that they did not consider our interests conflicting. And Mr. Martin, so far from appearing to think so, seemed perfectly satisfied, and said he would treat Mr. McDonald as appearing for those of the tribe not otherwise represented (whom he termed the "submerged tenth") my retainer purporting to include all the known Muaupoko except the Ngatipariri. The Commissioners, however, remark that "throughout the enquiry" my position seemed to them to be "peculiar." Needless to say that at a hint on their part of any such feeling I should have withdraw from one of my retainers.