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The Pamphlet Collection of Sir Robert Stout: Volume 78

Chapter V. — Before the Commission

page 19

Chapter V.

Before the Commission.

A Ninety Per Cent. Lie.

How was the case altered when, after eleven years more had passed, accuser and accused again confronted one another in a Court of law to stand what the Commissioners themselves ruled was practically a re-trial of them both? We may fortunately disregard a large quantity of evidence which was called on both sides as to the condition of the boundary fences, and of the cultivation on the two properties. The reason for calling this evidence was that at Meikle's trial and in Mr. Justice Ward's report it was contended that the Company's pasture was so much more attractive than Meikle's that sheep would never have deserted the former of their own free will, and that in any case the fences were good enough to stop them. After listening to evidence of this kind for hours, the Commissioners wisely ruled it all out, and declined to take any more, but not before it had been proved from one of the Company's own witnesses that the plan on which the Crown convicted Meikle lied to the extent of about go per cent. with regard to the cultivation on the Company's land. In this plan from 350 to 400 acres was given for the area in turnips, which was supposed to provide an irresistible attraction to the 646 sheep which had been feeding there for two months. But it was admitted by Mr. Troup, who was the manager of Islay at that time, that the actual quantity was about 30 acres, mostly eaten off. (C. 135/169 to 136/181.) The advisers of the Crown of course would not intentionally have inflicted such a monstrous injustice upon Mr. Meikle in 1887; but it is nevertheless a disgrace to the country that this false evidence was brandished before the eyes of the jury to the prejudice of the accused.

Changing Front After Eighteen Years.

Little new evidence was led before the Commission on the part of the Crown, but a remarkable change of front considerably embarrassed Meikle's defence, though in the long run it probably did him far more good than harm. Having after moor than eighteen years secured a new trial, in which he had to begin, as the onus of proof was adjudged to rest on him and having closed his case on the old familiar lines, it was amazing that he should be suddenly confronted with a change of date. He was convicted of stealing sheep on the 17th October, 1887, but now his innocence with regard to that date was admitted, and the Crown proposed to prove that it page 20 was on the 18th that the crime was really committed buffling as such a charge was after the lapse of eighteen years, it carried with it the enormous advantage of incidentally clearing away the only ugly feature of the defence made by Meikle in 1887—viz., the total failure of the alibi which was attempted to be set up for Arthur Meikle. Both of the counsel for the Crown—Dr. Findlay in his opening address (C. 126, second par.) and Mr. T. M. Macdonald in an interjection towards the close of the case (C. 303, middle)—coneceded that the alibi might be treated as established for 17th—the only night for which it was attempted. This admission completed the vindication of Meikle in respect of the original trial in a singular fashion. Templeton's error having been proved to be not only .trivial but nonest, the question of pastures and fences having been ruled to be immaterial, the sheepskins having been made by McGeorge to testify not against Meikle but against his accuser, and the alibi which failed being now admitted to have been honest and correct-how much remained against Meikle from the original evidence? Absolutely nothing, except the uncorroborated testimony of Lambert; and the proceedings of the Commission supplied the finishing touches to a due appreciation of its value.

The Question of Date.

Into the question of date we do not propose to enter, as it is one of immense complexity, and would take far more space than we can possibly spare for its adequate handling McGeorge's departure from the hut was the event by which Lambert professed to fix the date of the theft of the sheep and this was conceded by both parties in 1887, and again in 1895, to have been the 17th October. The selection was a fortunate one for Meikle, for the facts that it was a Monday that it was an exceedingly wet day, and that an auction of stock ("Waters' sale") had been held that day on an adjoining farm made it very easy to identify. Possibly the proof of such weather as would make the driving of sheep impossible at any rate after dark, and the overwhelming evidence duced in 1895 that Lambert was at Mataura, some twelve miles away, on the evening of that day, induced him—not at the eleventh hour, but in the nineteenth year—to make a change. Tuesday, the 18th October, was at any rate urged upon the Commission as the date of McGeorge's departure and of the alleged crime by counsel for the Crown, who though they repudiated the identity at the opening of the case, had become indistinguishable from counsel for Lambert long before its close. Though we believe that the attempt failed, and that McGeorge himself was right in sticking to the Monday, and that the Commissioners must have so found if they had not evaded this question along with the rest, we page 21 must for the reason already given be content to leave it upon the overwhelming presumption that the correct date was that fixed when the events were but a few weeks old, and not that announced for the first time after eighteen years had passed, If the 17th is the correct date, then the tempestuous weather and Lambert's presence at Mataura late that evening rendered it impossible that the sheep were driven as alleged, or that he was there to see them. If, on the other hand, the change to the 18th has been correctly made, then the utmost it proves is that Lambert might have seen the theft committed that evening. Whether he did see it would still depend upon the general credibility of his story.

A Perfect Chameleon.

It would take pages to exhaust all the improbabilities, inconsistencies, and contradictions of Lambert's various narratives; but a few salient points must suffice to test the veracity of the only witness whom the Commisisoners have allowed to stand between Mr. Meikle and an ungrudging and unequivocal declaration of innocence. We say this not because the Commisioners say so, for though pages of evidence and argument are devoted to Lambert and his story, and though at the very opening of the enquiry the Commissioners ruled that Lambert was as much on his trial as Meikle, you will search their report in vain for any indication that Lambert's evidence was of any importance or presented any difficulties, or even that he gave any evidence at all before the Commission. We present a few samples of what the Commissioners might have exhibited if they had been as careful of elucidating the character of Meikle's accuser and the credibility of his story as of damning Meikle himself upon irrelevant matter.

The amazing manner in which Lambert's observation of the marks on the sheep that was killed in October, 1887, had town between November and December has already been expounded. (See pp. 12 and 13, supra.) If a single month's meditation had produced this wonderful development of his knowledge, .it was only to be expected that he would have learnt a great deal more after eighteen years, and the expectation was not disappointed. The absurdity of Meikle's melodramatic defiance of "the Company or anybody else" after moving the earmarks and the firebrand, while far more glaring evidence of his guilt remained in the paint-brand on the fleece, was naturally commented on by counsel for Meikle before the Commission (C. 5). But Lambert had his answer ready the paint-brand had really been removed as well as the minor marks, though he had not only failed to mention it his previous narratives, but had made statements absolutely irreconcilabIe with it. Though his first two statements have already been quoted in their proper context, it will be page 22 convenient to place them side by side with the revised versions:—
(1)1887, Nov. 19 (Justices).—" The sheep was killed in my presence. I cannot say what brands were on it. For all know it might have been one of Meikle's. I suppose it was one of the Company's sheep, but I did not look at the brands. I did not notice the ear-marks."—(C. 322.)

1887, Dec. 16 (Supreme Court).—" Elder prisoner had gone over to house. After sheep dressed he returned, told his son to cut fire-brand and ear-mark off, and to cut them up into small pieces. That was done. Ear-mark was two notches either back or front. That was Company's ear-mark. I did not see brand on sheep that was killed."—(P. 19.)

Cross-examined : "I saw sheep killed. Saw ear-mark. Did not say before that I had noticed ear-mark."—(P. 21.)

(3)1906, May 11 (Commission).—By Dr. Findlay: "When the elder Meikle came back what did he do or say?"—"He told Arthur Meikle to cut the ears and fire-brand off the skin."? "Was that done?"-" Yes."

. . . . . . . . . .

"Was anything else done by Arthur Meikle?"—"The skin was turned over on the bales, and with a knife he ran through the brand to take the paint off."

"Did you notice the brand on the skin that Arthur Meikle was working at?"—"It was red, I know that."

"You could swear it was the Company's brand ?"—" No."—(C) 164/151-3, 160-1.)

"In your cross-examination in the Court below you were pressed and you said the sheep killed might have been one of Meikle's? What have you to say about that?"—"It might have been. I only saw the ear-mark that was cut off very like the Company's ear-mark."—(C. 165/198.)

Defective Logioc !

The attempt was made to support the withholding of the extraordinary evidence for eighteen years by calling witnesses to prove—under the free and easy methods allowed by the Commission to both sides—that Lambert had made similar statements out of Court in 1887. But how could that help him when these statements were not merely omitted from, but flatly contradicted by, his testimony in both Courts in that year? How can it bridge the fatal contradiction between the two statements of 1906? He saw that the brand on the sheep that was killed was red; he knew that Meikle brand was black (C. 17¼16); yet for all that the dead sheep might have been one of Meikle's! The fact, of course, is that in the last of the answers above quoted he was thinking only of smoothing over the contradiction between his two statements of 1887 with regard to the earmarks, and quite for getting that the same explanation was utterly irrecoconcilable with the possibility of his having seen a red brand on the dead sheep.

It is indeed suggested by Mr. Justice Edwards that want of logic is sufficient to account for such a contradiction (C. 323, ad fin.) Judicial charity does not usually go so far page 23 as to excuse a witness's inability to distinguish between black and white as due to defective logic. Yet the difference between black and red here was as wide as the difference between black and white in any ordinary circumstances, since black meant that the sheep might have been Meikle's, and red meant that, whether the Company's or not, it could not possibly be his. A more conventional appreciation of this kind of defective logic was displayed by the jury which convicted Lambert of perjury in 1895, and by the Judge who gave him the longest sentence that the law allowed. It would be wicked to beat a dog on the unsupported testimony of so illogical a gentleman as Meikle's sole accuser.