MALICIOUS PROSECUTION.

Ashburton Guardian, Volume VII, Issue 1647, 27 August 1887, Page 1 (Supplement)

MALICIOUS PROSECUTION.

Thil now celebrated " riokara " case has passed through ha fourth stage In our law courts. For the benefit of our readers it will be neeeaitry for as to give a short history of the tarione charges made by the above litigant! before publishing the evidenoe adduced at tfie reoent trial at Timaru. It appears from evidence adduced at the various trials, that Mr Herring, who is manager of the Alford Estate, bad from time to time missed a quantity of timber from a 40 acre section of bosh at Alford Forest ; and according to a letter he wrote to the Press, a series of robberies had taken place for some time back on the estate. Herring m order, if possible, to pat a stop to the laroenies determined to proaeoute the first person he found stealing his employers' property and instructed his bushman accordingly. On the 81st Maroh, 1885, John Hutohieon, his bushman reported that he had seen Mr James Toner, a small farmer living m the neighborhood — along with his man James Bullevant, taking saplings. Mr Herring satisfied himself of the fact, and forthwith went to Methven to inform the Constable of the dutriot, P. O. Burke— and to take out a summons. The Constable told Herring that be would have to go to Ashburton to procure one but that if he would wait until next day, he (tht Constable) would ride over to Alford Forest, enquire into the matter and if there wh sufficient evidenoe of the theft, would arrest Toner on his own responsibility. The Constable on visiting the bash saw that not only Baplings, but a quantity of larger stuff had been reoently out m the same part of the bush. At any rate the constable was so satisfied that a larceny had been committed) that accompanied by Herring the two went to Toner's place. Whilst thero the Constable noticed ends of timber corresponding with stumps of the same description m the Company's bosh and identical marks of notohes ; m the axe used. Toner was arrested, taken by thi Constable, en a horse,, to Methven on the Ist of April and on the following day to Aahburton, where he was brought before Mr Baddeley, B M., the police conducting the pro* Becution.and Mr Wilding defending. Toner was remanded and eventually fined 40s and costs for the larceny of saplings. An artiole shortly afterwards appeared m the Chriatchuroh r ' Press," severely commenting on tha conduct Of the constable and Herring and criticising the Magistrate's decision. Herring appears to have got nettled at what he called " the injustice of the artiole " and wrote a letter to the Press m whioh he spoke m very disparaging terms of Toner, aocusing him of a previous larceny of timber. Toner, by his oounscl, Mr Wilding, served ft writ on Herring for libel contained m tbe letter to the Press, and for trespass, claiming £800 damages for the libel and £200 for the trespass. The trial took plaoe'at the Supreme Court, Timara, on June 16th, 1886, before Mr as doe Johnston and a common Jury of four. Mr Geo. Harper was counsel for defendant. The result was that defendant had to pay £150 and costs. Mr Herring sometime within a month after the trial consulted Mr White of tbe firm of Messrs White and Co, Timaru, m reference to bringing an action ■gainst Toner and Bullevant for perjury whioh it was alleged they had made m the evidenoe they gave m the libel action on behalf of the prosecution. Herring appears to have plaoed a large amount of evidenoe m Mr White's hands, but m consequence of Mr White's being engaged m the Hall and Cain eases, the matter was not brought before the public until twelve months after the libel action. The charges of perjury against Toner and Bullevant were hearcf m the Ashburton Court on June 27th and 28th, respectively before J. Ollivier Esq, B.M. and Messrs W. 9. Steward and Hugo Friedlander, J.P.s tho malt being that both Toner and Ballevant were committed to take their trial for perjury it the Supreme Court, Chrietohuroh. A few days before the sessions opened the Crown Prosecutor informed Herring that the Crown refused to take up the case. Herring then became responsible for carrying on the prosetions. Begina v Toner, and Begtna v Bullevant, although only enmmoned to give evidenoe as a witness m the case. The day before : (Sanday intervening) the Oourt opened Herring secured the services of Mr Stringer as oounsel instructed by Mr White. The Grand Jury without (it appeared m evidenoe m the recent action) having examined all the witnesses threw out the Bills. Thereupon Toner v Bullevant took im* mediate action to vindicate their characters and instituted proceeding against Herring for malicious prosecution, each claiming^ £500 damages. As will be seen from the following account of tbe trial, a verdict was entered for the defendant Herring with costs on the middle scale, the Jadge certifying for a speoia jury second counsel and costs of jury for two full days, the verdict being— "We find that the plaintiff has failed to prove his innocence.''