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The Pamphlet Collection of Sir Robert Stout: Volume 78

Chapter II. — Misconception and Mudslincing

page 8

Chapter II.

Misconception and Mudslincing.

Loading the Dice.

Before proceeding further, it may be as well to dispose of one cruel misconception, which has been created to Mr. Meikle's prejudice by the form of the first two issues and the formal character of the Commissioners' answers thereto.

These issues were:—
1.Whether the conviction of the said William Lambert for perjury established the innocence of the said John James Meikle ?
2.Whether the conviction of the said William Lambert raised a reasonable presumption that the said John James Meikle was innocent or that he was wrongfully convicted?

Both questions were utterly absurd, as any lawyer most laymen would see at a glance. Lambert's conviction not in itself either prove Meikle's guilt or raise any reasonable presumption of his innocence. Lambert's conviction did not in itself even prove his own guilt, though the evidence on which it was based might suffice to prove both Lambert's guilt and Meikle's innocence. The injustice of such issues pointed out by the Meikle Committee as soon as a draft of proposed Commission was submitted to them by the late Premier. "We are advised," they wrote to Mr. Seddon, "that the first of the questions to be submitted ... is from a legal standpoint a sheer absurdity, and that it must be decided in the negative by any legal tribunal on technical grounds which will leave the merits of either conviction absolutely untouched, (See "Evening Post," 26th March, 1906.) An amendment of these issues was promised by Mr. Seddon, but never That the omission was a bona fide oversight was, however proved both by the recital in the preamble to the Commission that the enquiry was "for the purpose of arriving at a final conclusion and settlement in respect of the claims or alleged claims of the said John' James Meikle," and by the consent of counsel for the Crown to the Commissioners' decision to treat the guilt or innocence of Meikle as the real issue.

A Cross Misconception.

In consequence of this ruling, Meikle decided not to withdraw from the Commission, and the issues were allowed to stand unamended. Nevertheless the Commissioners, as though thankful to find any questions to which they could return a definite answer, have answered these two questions in the negative without a word to explain that an answer apparently unfavourable to the accused was inevitable on page 9 technical grounds in both cases. To the critical reader the insertion of the italicised phrase in the second answer—" The conviction of the said William Lambert did not per se raise a reasonable presumption that the claimant was innocent or was wrongly convicted"—conveys a warning that the answer is abstract and technical. But a majority of readers are not critical, and some of the most intelligent newspapers in the colony have sprung to the conclusion that the general result is one of "Not Proven," and that these two answers are a definite negation of anything more. As the Commissioners were addressing, not an assembly of lawyers, but the public at large, it was surely a part of their duty to guard against so gross, yet so easy, a misconception. That these issues should have been so framed, and having been left unamended after protest, should have been so answered, and having been so answered should have been so widely misunderstood, is but other illustration of the cruel injustice which has dogged this unfortunate man for the last twenty years. After dismissing these ridiculous issues in this technically correct but practically misleading fashion, the Commissioners proceed to a re-statement of "the real questions intended to be referred to us" in the following terms:—
(a)Has sufficient evidence been adduced before us to show that the claimant was guilty or was innocent of the crime of sheep-stealing, whereof he was convicted?
(b)If the evidence is insufficient to enable us to arrive definitely at either conclusion, is the question of the guilt of the claimant so far left in doubt that, if he were now being re-tried by us as a jury upon an indictment for the said crime, he ought to be acquitted upon the ground that the said crime had not been sufficiently proved against him?

Another Injustice.

In this statement of the issues another gross injustice is inflicted upon Mr. Meikle. An affirmative demonstration of innocence nearly twenty years after the alleged offence would or most men be an absolute impossibility. The raising of a reasonable presumption of innocence is the utmost that the possibilities of their case would admit or the charity of any ordinary man would desire to exact. But the Commissioners are not ordinary men. We have, indeed, no reason to complain that as lawyers they have taken a dry, narrow, technical, human view of the position. We are, however, entitled to sent as discreditable to their legal acumen the omission of so obvious a middle course between coercive proof of innocence and a grudging verdict of "Not Guilty," which in the absence any guidance may be construed by the ignorant as meaning thing more than "Impossible to prove so many years after." The omission is the more inexcusable from the fact that "reasonable presumption" of innocence is the very question raised, though in an impossible context, by the second issue. Is a page 10 man who from the first has been protesting his innocence, but is refused a hearing for more than eighteen years, and then is brought to trial after his principal witnesses are dead, to be deemed to have failed because he cannot at this time of day produce evidence which to the legal mind is absolutely conclusive of his innocence ? The handicap of time which, with its daily addition to the burden of proof, is usually in such cases made to tell against the attacking party, must surely be equitably counted against the Crown which resisted enquiry all these years, and not against the man who prayed for it and fought for it from the first. We hope, nevertheless, to show that the evidence adduced before the Commission was sufficient to impress the narrowest legal intelligence with a strong presumption, and the broad common sense of the layman with an unhesitating conviction, of Mr. Meikle's innocence.

Irrelevant Mud-slinging.

With the ostensible purpose of emphasising the difficulty of their task, and with the practical effect of injuring upon a side issue a man who provided neither counsel nor Commissioners with any other sufficient handle, the Commissioners declare that Mr. Meikle "has proved himself in his evidence before us to be utterly unworthy of credit in any matter affecting his own interests. The particular matter in which the claimant's reckless disregard of his oath was made clear to was with respect to illicit relations which he ultimately admitted that he has had for some years with a young woman named in the evidence." We have no desire to indulge in any special pleading on Mr. Meikle's behalf in this matter, but obtain a just view of an unpleasant and in the main quite irrelevant episode these facts must be borne in mind:—
(1)That the matter in question occurred twelve years after conviction and seven years before he was cross-examination upon it before the Commission.
(2)That it belongs to a class of wrong-doing-as to which, common as it is, an instinct of secrecy deeply implanted in nature dictates a different standard of veracity from which governs any ordinary issue affecting business, perty, or character.*
(3)That cross-examination upon such a matter in an enquiry which sheep-stealing is the subject appears to anybody a lawyer just as relevant and just as well calculated to elicit the truth as the thumb-screw or the rack.

A Sorry Sneer.

Of Mr. Atkinson's argument on these lines before the Commission (C. 274-7) the report says:—" Counsel for the claim endeavoured to persuade us that the claimant's natural modesty induced him to swear falsely in these matters"—cheap, paltry, undignified, unjudicial, unmanly sneer, to which page 11 their Honours are surely by this time ashamed of having put their names. That men are not pigs, that men otherwise truthful are led by the instinct in question to abandon their usual candour in these matters, and that the public sense of fair-play strongly resents the introduction of such questions into the investigation of a criminal charge of an entirely alien character are patent facts which the Commissioners' sneers have no power to alter. That Mr. Meikle successfully faced the ordeal of a searching cross-examination on everything relating to the alleged crime, and that the Commissioners do not support their adverse finding on the irrelevant matter by a single unfavourable comment on his attitude to the real subject of the enquiry—these are two other patent facts of which the significance will not be lost upon the public.

* "I never heard of it," says Mr. Justice Edwards. (C. 276.)