SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2135, 10 March 1908, Page 1

SUPREME COURT.

VI \ ■ i i n | The Supreme Court Civil sittiu wore resumed yesterday. AITIvEN V COAIAION, SHELTC and Co. Mr Rees stated that lie was n present when the verdict was giv on Saturday night. The. verdict w : unusual; He applied for judgmo to bo entered for the plaintiff, • ai although there were no fruits he a plied for costs. • His Honor stated that the re question was how judgment shop bo entered, the circumstances boil peculiar. It- was quite .open to tl jury to find that there.waS a coutrac 'tliat it was broken, and that no dar -ages should bo given. He had n< looked into llio authorities, but on a trader could claim for credit an . not a farmer or a laborer. He woul ■ look into the matter. Mr Lusk pointed out that the claii was essentially one for damages, an the jury had declined these and verdict should be entered for the d< fondant- and costs should bo on tli lowest scale, If His Honor thought i should bo entered. His Honor remarked that if jud< -meat • was. -entered for the plaintil it.could only he- for a shilling. " ' A SLANDER ACTION. Sadio Jessie Watson (sometime known as Jessio Whatman) (Mr. H D. Bell, K.C., instructed by Mr E. J. Clirisp) v. Joseph Burke (Mr IT. B. Lusk, instructed.by Mr. Blair) claim 'for' £499 damages for allegei slander: The following jurors were empanel led: Messrs H. A. King (foreman), A Aitkcns, J. Chisholm, H. S. P. Me Lemon, It. Bach, J. Ponsford, C. I) Pi esse , E. AV. Langford, C. IT. Hyde E. \ r . Luttrcll, It. M. Birrcll, J A Scott. ■ Mr. Bell detailed the case for tin prosecution. Leo Keys, a laborer, was at one timo employed at the Record Reigi Hotel, hut had left as the result of a dispute: On the ISth December, witness was standing on-- the wharf, when -a- man named Smith canto up and handed a parcel, saying, “Clive these back to Joe Burke of the Record lteign. Have a look what Burke has written on them.” .Going }}p the wharf,'witness looked at the packet, which contained photographs trapped in a piece of brown paper. There was no picture -attached to Miss Watson’s photograph. Next morning, as witness was going to breakfast, he handed the photos to Burke. Did not see Gardiner at this time. Told Burke that Harry Smith gave'them to witness. Burke merely nodded his head, and put them in liis pocket. After breakfast, Burke asked witness to seo what he had put on the photos. At this time, Gardiner was standing at the bottom of the stairs. Defendant said, “Won’t the girl go off imp when she sees them?” They were then handed t,o Gardiner. After inspecting them, the latter said, “Come oil, Leo, wo. will go down the street.” Both went out, and he gave, witness Aliss Dunlop’s photograph and kept the others. Buiko askedVthe two to deliver the photographs to the girl. The photos were nothin the same state as when he saiv them last, and they only made one parcel and no paper, was around them. One difference was that an immoral picture was attached to Miss AA 7 atson’s photo. AA’lien Gardiner handed witness Miss Dunlop’s photo lie took off the immoral picture, and put it in his pocket. Met the ladies near the Gisborne Hotel and delivered the photos. Before handing them over, they spoke to the girls. Miss. Watson “went off pop” as anticipated. She went across to speak to Sergeant AViliianis. The indecent picture was again attached, but did not know when this was done, written across it was, “AA 7 e do not require photos of your class in my house,” and further indecent words. When the immoral picture was pulled off, some gum was left, and anybody seeing the photograph could see it. Sadie Jessie AVatson, plaintiff, stated that she was married in 1904 in Victoria. AA 7 as separated from her husband after about 14 months as they quarrelled, -and since then had been earning her own living. Before marriage was employed in a draper s shop. AVas employed in Sydney -as a barmaid from January to October, 1906, and' then she went to Christchurch, where she was a barmaid at Warner’s during the exhibition. Went over 'to the Clarendon, and stayed at the Royal Oak Hotel, Wellington, for five or six days, and she went to Auckland. AA 7 as there about 1 week when she came here. Was in the Record Reign Hotel as -a boarder for three weeks before she was employed as a barmaid. She had never lived ari immoral life. Gave Mrs. Buiko her photo' as she asked for it. Wrote on it as follows: To Mrs. Burke with love from S.J.AV., 27/11/07. Did not see it after giving it to her. JNever ceased to bo on friendly terms with Mrs. Burke. During the time she was. at the. hotel, neither Burke nor his Avifc ever suggested that she was not a proper person to bo there; After leaving the hotel, wont to live it Lowo Street at a boarding-lionse. While there with Miss Dunlop, men mine to see them repeatedly while itncler the influence of liquor, saying that Joe Bmke sent them there. Did know Detective Maddcrn. lie told icr that ho knew her- brother. At Mrs; Raw! in son's she asked the detective if they could go to his house lor protection from those men. 1 hey occupied tlio front bedroom. Miss Alacllern said they could have that room, rberp was no foundation foiv the sugt'cstion that any impropriety took place. Was there about 12 days. Detective Maddfjrji came in occasionally. His daughter did not live tjierp during the time they were there. Had some property in Western Australia, which brought iu 25s a week. Had no other means except by supporting liorself. , , , i By Mr. Lusk: The property belonged to her mother, who died about four years ago- Lived in Fremantle, Berth, and Kalgoorlio. The property was in Perth, and consisted of a house. Her brother had the title leeds. Supposed it belonged to him, but ho gave her the rent. He had not sen!, thp rent as she had not needed it, being hlilii to keen herself. Received 25s a week in Sydney, and paid her passage across to Christchurch. She could and did dress on 25s per week; could not say how much less. AVas engaged lor six months at the billiard room bar at Warner's. At ten o’clock they were kicked out like clogs, and she had a room m Latimer Square. The permanent hands lived on the premises, hut three j i:K l to go at ten o’clock, and 5s was allowed lor their room. Left on 27th April and was several months at the Clarendon. Needed a rest and vent to Wellington. Mr. Lusk: Are you still on the rest AAitness replied that she did that tour on the money she earned, it did not cost her much. pnlv pan £2 10s for two weeks at the Record Rei<m. AVas at that hotel for about 12 weeks, and received 30s a week. Received 33s fit Warner's, and 30s at the, Clarendon ; they Lved in a cottage at- the Clarendon. There was trouble at the Record Reign, and she cave evidence against Burke. AAent out- two or three picnics with the detective. Miss Mnddern did not leave the house because they came. Forgot what- she told feub-Inspectoi Dwyer. Gardiner gave her an engagement ring, and she did not say she was married as she could get a divorce. Had done no work lately, but she was not penniless. It was untrue that she had been spending largo sums at Adair Bros., and had

timo. On 18th December,, they wor out on the. Victoria to see «oin friends. She returned by the launch but Miss Dunlop came back by tli lighter .Saw Gardiner and Keys tli ■ next- morning by the Gisborne Hotel '‘ s Had no appointment, but expected t see him, as he was going to Auckland They gave the witness and Miss Dun K lop the photos, which-were shown ti the sergeant, but to no ono else Noticed that- something had been pas >t tod on to it. After reading it, Gardi ti nor said, “You must be a bad charae is ter if this is true. AVitncss had nev it or seen the indecent picture. AVlioi d she tokf Gardiner that she was taking >- action, lie said, “You must know all,’ and showed her the indecent picture, d This concluded the case lor the d plaintiff-. , „ Ida Dunlop, stated that on IStli o December she did not see Gardiner. Gardiner went out, but Keys did not. Saw them next morning, when they t brought the photo. Tho parcel was , not tied with string. Witness op--1 cued the parcel, and took her own 1 photos out, but Gardiner drew a photo from the inside of her coat. Looked at Miss AVMson’s pliotoI graph, but saw nothing else -besides the writing. Tho photos were only shown to Gardiner and Keys. Was ' present during the interview with Air. Clirisp; he said ho would seo them- later, as ho was going on a holiday. AA'ent occasionally to the detective’s -house. Gardiner got tho photo from Air. Clirisp,. and ho brought it to Mrv : .-Mriddorivs in the dining-room. Gardiner replaced tho picture that he said had been there before. Supposed slio would know it again if she saw It. The picture produced was the one pasted on. Mr. Lusk: AVlio suggested placing such a picture on the photo? Witness: AVlieh Air. Gardiner came ho said it had better be done. Air. Lusk: Did Miss AVatson. say slio would have -a go at Burke? AVitncss: Yes. Mr. Lusk: Did she say she had a picturo which would stick oil the photo? AVitncss: Yes. Air. Lusk: Did she say she was going to divide the damages? Witness: Gardiner'was to got somo of it. Alias AVatson said this. Air. Bd’.-I: AYho have you been talking to? AVas it Air. Stock? AYho did you tell that Alisa AVatson said she had a. picture ? ; AVitness: Tho picturo that is on the photo is the ono to be re-put- oil. Miss Watson said that she had a picture to bo nut on. .She or Gardiner had it. . Air. Bell: Did slio.say she had it, or did Gardiner havo it? AVitness: Tho picture was in tho dining-room. This was when -it.came from Air. Chrisp’s office. I saw Gardiner paste it on tlio photo. Aliss AVatson made the statement at tho time. All. this happened on tho same day. Air. Bell: AA’hen was it that Aliss AA 7 atson spoke of Gardiner being paid part of the money? AA’itness: On the same day. Mr. Bell: AVlio spoke of it ? AVitncss: Gardiner did not speak of it-. Air. Bell: AA’hen she said it was only right to have a go at Burke, was it on the day of the re-pasting? Witness: Yes. Air. Bell: You lived with Aliss Watson since she had been in' Gisborne? AA'itness : Yes, Air. Bell: Did you ever see a dirty picture in her possession? AVitness: Not till the day in the dining-room. Air. Bell: Had you ever seen any'- ■ thing like that before? AVitness: No. Air. Bell: Had you ever seen that description of thing in Aladderp’s house? , Witness: No. Thomas Richard Gardiner, a- surveyor’s assistant, stated that ho was doing surveying on his own account, but lie was not licensed. AVas 19 years with tho Government and 18 month on his own. Came to this district in 1893, and had been :in tho country most of the tjme. Alade the acquaintance of Aliss AVatson and Aliss Dunlop before 18th December. - Knew them fairly well. On that day, saw -a friend off on the steamer A7ictoria. AVas standing on tho launch, and lie heard Smith say to Keys, “Tako .those photos back—to Joe Burke. Tell him that tlio girls are not going away, and havo -a look, and see what Joe Burke has written across’- - their photos, before you give them back.” "Went to tho Record Reign about 8.45 a.m., and saw Kays and Burko near the store-room. Saiv Burke hand over the photos, Aliss AVatson’s being on top. Ho said, “Havo ..a look and see what-1 havo put on them. AA 7 on’t they go off pop .” The tissue paper oil Miss AA 7atson’s photo was thrown right hack, exposing a picture. Buiko said, “Have a look, Dick, and see what I havo put on.” Keys'then handed the photos, to witness, and the tiyp went down the streot. Just'outside'the • dor, ho pulled off tho picture, which was gummed on, doubled it up, .and put it, ill his pocket. The gum was -only along'tlio top edge. . Mot tho* girls in about an hour’s time. Tho photos were delivered, and tho girls went first to Sergeant Williams and I then to Mr Qlni.sp’.s office. Saw them noxt down at the boat! AVlien lie 'took off tho picture, gum marks re- ' mained. i By Air. Lusk: Knew Aliss Watson .for five months ; she was then at the i Record Reign Hotel. AVas friendly, but was not oil intimate terms with • her. Was engaged to her. ■ Mr*. Ipisl'f: You knew slip was • a married' woman? AA'itness: Not until a few days ago. Air. Lusk: And slio became.engaged to you not telling you that she was -i married?Witness: Yes. . ' 1 .- AVitncss: Did not hear Smith tell Keys to hand the photos to tho girls. Would have heard ifc if if Uad !fccn said. ’ , „ , Air. Lusk: Do you want the jury to believe that Mr. Burko knew you were engaged to this girl and showed you that? Witness: Yes. , . • Mr. Lusk: Did not you tell him /what you thought of lnm? ’• AVitness; I said nothing to Air. Burke. , , , Mr. Lusk: You thought it proper to give these things to the girl you were engaged to? AVitness: I thought she should vl Mr.’ Lusk: Does this not strike you as an extraordinary story? AVitness: No. Air. Lusk: AVliy did you not go to Air. Clirisp? , , AVitness: I did not know she -intended taking proceedings, l du not think it was necessary to go to ’his office. Did not get the pictuic from Aliss AVatson or Detective Aladdern There was absolutely no truth in this statement. As soon as plaintiff ,r 0 t a divorce from her husband witness intended to marry her. Thomas Alston Coleman, member ol the firm of Chrisn, and, Coleman, remembered plaintiff coming to the office on 19th December. Aliss Dunlop was there also. This would be about-T0.30 a.m. They brought some photographs, witness read . them, showed them to his partner, and put them in the strongroom. Did not: observe any marks u|; that time, hut somo davs later lie saw a faint mark of either gum or stiekfast, and either one or two small pieces ol paper, on the right-hand ton corner, Sergeant Williams stated that on 19th December he remembered seeing the two girls on Childers-road, near tho Gisborne Hotel. Did not see Keys and Gardiner or Harry Pool there. Aliss AVatson 'showed witness a photo and tho writing on it, and asked him what he thought of it. -AVitness said it- was very immoral. 'She said that she was going to see her solicitor, -and witness said that was the best’thing to do. This would

ro bo about 11 o’clock-. Tho words on in the photo meant something i hi moral. h, Air. Boll: Do you know that Dele toctive Maddcrn was a friend of 10 Aliss AVatson’s brother in Western >l. Australia? to AVitness: Had heard him say so. :l. AVitness stated that ho reported i- tho detective for having strangers in ;o tlio house, and that had been thesub- \ jeet of an inquiry. . u- Air. Bell : Do .you know why they i- were there? j. AVitness: I had no positive proof. -- Henry Smith, bookmaker, stated 11 that on 18th December he was stay<r ing at the Record deign,‘and -had ” been lliero about five weeks. Left >. for Napier on that il.ito with Jack o Yolds. Had tea at tho hotel at 0 that night, the launch leaving shortli ly after 7. Saw Burke after tea, and tlio .'latter asked him to tako some photos to give to Jessio AA’-utson a ml y Ida Dunlop. Saw him wrapping up '» tlio photos, and Burke tied the parcel with string and addressed them, i Witness took them away, and they i got to the launch about ten minutes to 7. It was nqt true that Keys -had met him at 5 o’clock. Looked for j tho girls, but could not find - them. f Saw Keys, whom he had -met at the 5 hotel, and told him to give the phoi tos to the girls, as lie could not find , thorn. Did not tell him to give them i. to Burko, and never mentioned j Hu rise’s name. Saw Gardiner on the , Haunch afterwards. Did not open the , package, and did not see anybody. , else.op on them. When he gave them , to Keys they were in the same contlis tion as when handed to witness. ■ James Stewart, carpenter, stated that on 18th December last -lie/ was helping Burke. Remembered Smith being at t-lio hotel on that evening. Saw Burke give Smith a parcel pf photos wrapped up .in brown paper. Saw Burke wrap it up, witness procuring the paper. Burke tied it up. AA'as not sure if there was ono parcel or two. Know.that it was a pliotb of a Ihuly in white, standing up. Was about tliree feet from Burke when lie wrapped it up. By Air. Bell: Burko did not say why ho was sending the packet away. AVas not close enough to seo tlio writing, but saw that there was writing. Saw Burke tying the parcel with string, which lie- thought was taken .from the desk. AVas -helping Airs. Burke in the bur. AVent home to bed and returned in the morning. Keys did not stay at tho hotel to his knowledge, -and lie would have known if he had been. Harry 8001, expressman, stated that oil 19th .December last lie saw the two girls on the Gisborne Hotel corner- Keys and Gardiner were with them. AVitness was driving past when Gardiner stopped him. Miss AVatson showed him a photo, saying that Keys had given it to her, and that it had come from Burke’s. 1 AA 7 oitld not be quite sure if lie had it : in his hand or whether she held it up, but ho saw it-quite closely. Did not notice any mark of gum, but saw the ’ writing on it. She said she. was going to tlio• sergeant, but Gardiner < said, “Don’t be in a hurry.” .. Just 1 their the sergeant came along, and ) witness drove a wav. 1 By Air. Bell: AVas not Hooking for > any mark, his attention being called * to tho writing. Ho would not’ say 1 that there was lfo streak of a gum 1 mark. < AA 7 . A. Barton, Stipendiary Alagis- J irate, stated that on 11th September, • 1906, a case of exposing indecent pie- 1 tures' was brought against one Alor- t gan. Detective Maddcrn conducted c tho prosecution. The picture produc- f . ed was similar to the one produced at « tho time. The detective got a pic- v ■ hire from the accused. This was ap- t pareiitiy p Port Said photograph, and c a person having this would probably 1 have more. Ordered that one to be I destroyed. a G. J. A. Johnstone, elei'k of tlio v ATagistrate’s Court-, and Deputy Reg- ? istrar of the Supreme JCourt, stated 9 that the picture produced was'exactly similar to the one ho saw in 1906 at )' the prosecution of Morgan. His ini- 1 pression was that the detectivp screw- 0 ed up the picture and put it in the fire. I His Honor remarked that it looked like a process picture. / Josepli Burke, licensee of the Re- :1 cord Reign "Hotel, stated that when s tlio two girls left, they left somo c photos and a letter behind them. “ AVitness wrote the words complained of on the photograph, hut the pic- v ture was not there. Asked Smith to 4 ..deliver them, folding them with Ijrowjl paper,...and tying them with s string. The whole plioLig-nphs wero covered with the pa»er. Gave them "to Smith about 6.25 -p.m. Knew Gardiner was on friendly terms with Miss AVatson. Did not see Keys until tho next morning, and, anyone coming in at 8.30 o’clock the previous evening could not miss seeing him, as he was in tho bar. About 8.15 a.m. Keys went in for his breakfast, t but there was no conversation. Gar- 1 diner was not in tlio house that morn- 3' ing. AATtness had never seen a pic- b ture of such n description as the ono t before, and did not paste any on tlio photo. Keys said nothing -about the a pictures; mot him twice, but- nothing s was spoken oil either side. AVent to c Patuta-hi with Sergeant Tre’auor, of 1Napier. Saw Keys, and told him that t i tlio Sergeant lyapted to syp, him, but ho would pot come". . By Mr: Bell: Know that his story was absolutely contradictory of Keys and Gardiner. Never had a word with .either or with Detectivo Aladdern. AVould swear that the photos wero not handed to witness.-by Iveys u on tho morning of tho 19th, as they p were not there, and thoir • evidence o was untrue, First heard from I’ool a of tho photos not being delivered four t or five days later. Smith had no P authority to give them to Keys. At n one- time- witness had a gaming liouso p in "Wellington. AA 7 as convicted, _ and ' sentenced to three months’ imprison- s went .with hard labor. -} Plaintiff, rp-eallecl, stated that she t wrote tho words, “To Airs Burke with j love from S.J.AV.,” and were written t I)3' witness when she gave it to Mrs. q Burke. If Burko .said' it was put on u after being returned it was untrue. ' o By Air. Lusk: Wrote to Clifford, t Christchurch, for tho photos. Airs, o Burke was very confidential with wit- / ness ' I) AVilliam Aladdern, formerly a detec- P tivo, stated that if improper conduct a had been proved against him*, ho a would have been dismissed. Tliero S were no grounds for the suggestion as 1 to impropriety between him and t-lie 1 girls. lie took them in as they were » being annoyed. Met a brother of •> plaintiff’s, who was in the. West .Aus- ‘ tralinn police. There was no other > reason for his taking them in. Had heard that lie lmd been accused of " being n party iu n popspiracy. Keliiembored Aforgan’s prosecution, and P ho destroyed tho indecent pictures. ° lie denied keeping the picturo all this u time, and he had never seen it until that day in Court. Tliero was iiot a fraction of truth in the suggestion that he gave Burke the picture. Had G been in the force for 23 ye.ars. Ho 6 had had an unblemished record until a

n this affair, which was a conspira 1. against him. If the charges ngaii >_ him wero believed, lie should ha >|- boon dismissed immediately. If t n pasting went on in bis house, it w without his knowledge. The lato \ lice inquiry was an unfair ono. j d was charged with associating wi u imputed immoral women, and wi i- putting thorn up in police quartet The inquiry was a hole and corn y inquiry, and it would not havo bc( accepted in a court of law. It w tlio visual police departmental inq | ii'3 T . Ho was really punished for a - lowing tho girls to he on polieo pr 1 niisos. Tho Sergeant remonstratci t but lie said lie bad done no wronj c and ho would stand by it. ILo di j not say anything against Sub-Inspe . tor Dwyer’s reputation. | By tho foreman: Never saw Card > ncr in his house at all. If Aliss Dui | lop said that tho detective was t-hei , and Gardiner also, it was untrue. Addressing the jury, Mr. Lusk sai that All'. Burko admitted writing tli ■ words, but unless they were'puhllshc - to somo third porson, His Hone would direct them that there, was n slander. Legally, if tho parcel wa opened by somo one without Burke’ authority this did not constitute pub lication. To believe that the libc

was, published, Iveys and Gardine would havo to lie believed. , The; were like two poll parrots, and the; would havo tho jury believe such i story. Tho stories tallied too much and t-hoy even tallied ill saying tlm the, Tuatca left at 5 p.m. on a AVcil iiosda.3', which was obviously incor rect. Air, Burko was not a big.man and what could the jury think of i man to whom tho indecent picture was stated to bo shown who would sa3 nothing when asked to deliver it to u lady ho was engaged to. Any pcrsoi: seeing such a picture would never be likely to forgot the occurrence. It coulcl not have got in Buiko’s possession, and Maddcrn had it, and lie: said he destroyed it. AVas this true? Then tho pasting was done in the eletcctivo’s house. If this was true, this was an end of the story that it was done at the Gisborne Hotel. Either Aliss Dunlop or Aliss AATvtson were lying; the jur3' must tlecido which. Even if it Was found that plaintiff’s story was true, what damages could bo granted? A shilling would be high indeed, for whatever mistake Burke made, was her character such that her credit and her position in soeiot3 r were affected? Mr. Bell asked if it were just that a man liko Burke should bo allowed to act so foully to a woman, taking advantage of her being a barmaid. Was there, lie asked, no manliness left? . The defence practically accused Aladdern of perjury, and; this was upon nothing beyond surmise. This also meant disbelieving Air. Coleman aiul aii3'ono would know how impossible it was for anyone to get it from a solicitor’s safe. AA 7 as it fair to say that Burke wa6 incapable of attaching the picture, and yet he admitted writing the vile words. His Honor said that no one would question that the words constituted a libel, and the defendant did not deny malice. The real and onW issue was whether the libel was published or not. There was a conflict of evidence between a series of persons. It was possible that- if Aladdern did retain possession of 'the picture, that one of the girls found it at the house. Burke was not particularly squeamish as to what lie wrote to the girl, but it was a question if he would go the length of affixing- such ail indecent picture. . AAL'tli respect to the question of damages, the jury must consider who she was and wliat she was. Then the question of whether the claim was a purely mercenary one or not must also be considered. His Honor also referred to the question of punitive damages. He would not put any definite issue before the jury, who would be asked to bring a verdict for plaintiff or defendant, but the questions amounted to—. Did the defendant publish the libel writing on the photographs by showing it to Keys and -Gardiner or allow others to see it? AA'liat damages, if any, is the plaintiff entitled to? The jury retired at 11.45 p.m. . The jury came in at 12.25 a.m. with a question to -his Honor as to what sum would have to be^. allowed for costs. His Honor declined to answer tho question. Tho jury returned at 12.40 a.-m. with a verdict for plaintiff, and for £125 damages. His Honor allowed costs as per scale, ' N'APlEil SITTINGS. A PECULIAR POINT. Press Association. 1 NAPIER, March 9. At the Supreme Court to-day Alartin Johnson, charged with arson, was found guilty', and sentenced to five years’ imprisonment. A peculiar point, however, lias been reserved for the Court of Appeal. The indictment charged Johnson with setting lire to a- building which was affixed to the soil, and counsel for the defence raised the point that the Crown had not proved that tho building was affixed to the soil.