§ SIR ROBERT COLLIER
said, he would beg to ask the Secretary of State for the Home Department, Whether he has any objection to lay upon the table of the House a Copy of the Judge's or short-hand writer's notes of the evidence on the trial of John Toomer, who was convicted of rape and sentenced to fifteen years' penal servitude at the last Summer Assizes for Reading; and, of all Memorials and Correspondence relating to the case?
§ MR. WALPOLE
Sir, I regret very much that for reasons which I will briefly advert to I do not think that I am at liberty to lay the papers to which the hon. and learned Gentleman refers upon the table of the House. Those papers are of a peculiarly private and confidential character, and contain matters affecting the character and conduct of third parties, and unless an opportunity were given to those parties to explain such observations as might be made about them, it would be a great injustice to them to make the papers public. Moreover, there is no precedent for the production of such papers, and to establish one 905 will virtually be an interference with the prerogative of the Crown, and will make the House a Court of Appeal in criminal cases. Any one, I think, who considers the subject, will agree with me that it would be hardly competent for me to produce the papers asked for. At the same time, I may say that the facts of this case do not appear to me to have been sufficiently well understood—nay, in some respects appear to have been much misrepresented—if not perverted. Although, therefore, I cannot consent to lay the papers upon the table, because it would introduce a precedent which would be very inconvenient were it to be followed, yet I wish it to be understood that any explanations which I have to offer, or any requirements which may be made of me with reference to any conduct that I have pursued upon the matter, are perfectly legitimate subjects of inquiry, and I am perfectly willing to offer such explanations as may be required. Having said this much, I shall now, Sir, with the permission of the House, venture to state what really has taken place in regard to this matter so far as I myself am concerned. Toomer was tried for rape in July last. An application was made to me a few weeks afterwards on his behalf. Toomer himself signed a petition, in which he stated his own view of the case; said that the prosecutrix had been living with him on familiar terms; that he was entirely innocent of the crime, and asking that further inquiry might take place with the view of granting him a free pardon. That Memorial was accompanied by other documents, and I, in accordance with the course which I always take upon such occasions, referred the Memorial and the other documents to the Judge who presided at the trial. The learned Judge subsequently forwarded to me the notes of evidence and also his own opinion upon the case. From those notes two things were clear—first, that whether Toomer was innocent or guilty of the crime, it was perfectly clear that the statement which he made in his Memorial was not only unfortified but was totally at variance with the evidence; and secondly, the whole matter apparently turned upon the credibility of the different witnesses. If the prosecutrix was to be believed, then the verdict of guilty could be sustained. If, on the other hand, the two female witnesses were to be believed, then Toomer was certainly not guilty. The matter, therefore, resolved itself into a question 906 of credibility, as any one will see who takes the trouble to go through the evidence. The jury found the prisoner guilty, but recommended him to mercy. On being asked what was the meaning of their recommendation, they stated that there were extenuating circumstances; and on being again asked what they meant by that, they said that the prosecutrix had been indiscreet. The jury, however, did not appear to have any doubt that the crime was proved against Toomer, and the learned Judge was certainly of that opinion, as also were many of those who were present at the time of the trial. The application which was made to me was for a free pardon; but the House will see that I could not have recommended a pardon to be granted without deliberately deciding that the prosecutrix was guilty of perjury, and that the two maid servants ought to have been believed and not disbelieved as they had been by the jury. This was a case rather coming within the peculiar province of a jury, as it was a question involving the determination of facts. It was a case relating to the credibility of evidence, which could not be tried by me or any other tribunal, excepting in one way, and that was to allow Toomer to prosecute for perjury the person who had accused him, and upon whose evidence he had been convicted. A letter was accordingly written from the Home Office, giving no opinion upon the merits of the case, but intimating to Toomer that he would be at liberty to prosecute Miss Partridge for perjury. Had such a course been adopted, and had such an indictment been sustained, there can be no doubt that the innocence of Toomey might have been established. But objections have been stated against the recommendation of prosecuting the woman who gained the case for perjury. The first was that a conviction for perjury could not be obtained except upon the testimony of two witnesses, and the second was, that as Toomer was a felon he had forfeited his property to the Crown, and would have no means of trying the case. In answer to the first point, I may say that there were two witnesses—namely, the servants—and I am told it is perfectly clear that if these two servants could have corroborated the evidence of Toomer as to what took place on the Sunday night, and there was no reason to doubt them, that a verdict would have been obtained in favour of Toomer. With regard to the second point, I may state that I made inquiry and 907 found that the property forfeited to the Crown was only a very limited proportion, Toomer having previous to his trial conveyed a very considerable amount of property to his father. Both objections, therefore, were such as could not be sustained. The prosecution took place last autumn, and from that time to this I have received no application whatever upon the subject, Since the meeting of Parliament, I have been asked by hon. Members whether the sentence of fifteen years' penal servitude ought to be allowed to stand. My answer is that that point has never been brought before me in any way. Had any memorial been presented upon the subject, it would have been considered, or if any deputation had waited upon me it would have been received, and their representations would have received due consideration.
§ SIR ROBERT COLLIER
I wish to ask the right hon. Gentleman, whether Papers, such as those I have just asked for, were not laid before the House in the case of Jessie M'Laughlan?
§ MR. WALPOLE
Yes; but the case of Jessie M'Laughlan was a very peculiar case. In that case there was this important difference, that the question of the guilt or innocent of a third party (Mr. Fleming) was involved. If the papers are granted in the present instance similar papers cannot be refused in any other, and the appeal in criminal cases will virtually be transferred to this House.