SUPREME COURT.

Globe, Volume IV, Issue 419, 15 October 1875, Page 2

SUPREME COURT.

Thursday, October 14. (Before his Honor Mr Justice Johnston.) His Honor took his seat in the Court at 11 a.m. FOWLER V MCARTHUR AND ANOTHER. This was an action for malicious prosecution brought by one William Longley Fowler as plaintiff against the defendants John and Duncan McArthur, sheep-farmers trading under the style of McArthur Bros It appeared that the runs of the plaintiff and defendants at the Amuri adjoined, and that in February last a shepherd named Coibett, in the employ of the defendants, represented himself as a detective, and arrested the plaintiff on the charge of stealing a sheep. The plaintiff was then taken to the Court house at Waiau, and after a lengthened examination, in which the defendants were the principal witnesses, committed to take his trial at the Supreme Court for sheep stealing on three distinct charges. The plaintiff was tried at the April sittings of the Supreme Court, and acquitted. He now brought an action for malicious prosecution, and sought to recover £SOOO damages, and also £IOOO as special damages for injury to reputation and distress of mind consequent on his arrest and trial.

Mr Joynt, with him Mr O’Neill, appeared for the plaintiff. Mr Garrick, with him Mr Cowlishaw, for the defendants.

The following gentlemen were sworn as the special jury Messrs J. N. Tosswill (foreman), J. R. Lysaght, A. Cardale, H. J. Ainger, G. H. Vigors, J. T. Fisher, H. Hawkins, J. Shand, S. Stuckey, W. Kennaway, R. H. Woodward, and Sir Michael Le Fleming. The following were the issues submitted to the jury : 1. Did the defendants on or about the 27th day of February, 1875, falsely andmaliciously, and without reasonable or probable cause, cause and procure one John Corbett to appear before a Justice of the Peace and charge the plaintiff with having feloniously stolen certain sheep the property of the defendants ?

2. Did the defendants upon such charge procure the said Justice to grant, hi* warrant for apprehending the plaintiff ami bringing him before the said Justice to he dealt with according to law, and did the defendants under and by virtue of the said warrant cause the plaintiff to be arrested and imprisoned for a long time, and afterwards to be brought in custody before the said Justice? 3. Did the defendants then procure the said Justice to remand the plaintiff to prison, and did they cause the plaintiff to be imprisoned for another long time, and afterwards to be again brought in custody before the Justices of the Peace ? 4. Did the defendants then and there falsely and maliciously and without reasonable or probable cause procure the said Justices to commit the plaintiff to be prosecuted on the said charge at the then next sessions of the Supreme Court of New Zealand to be holden at Christchurch on or about the fifth day of April, 1875, and there to take his trial for the said alleged offence ? 5. Did the defendants afterwards falsely and maliciously and without reasonable or probable cause, cause the plaintiff to be indicted on the said charge, and did they cause the plaintiff upon the said indictment to be prosecuted until the plaintiff was in due manner and form and in due course of law tried and acquitted by a jury of the premises in the said indictment charged against him 7 6. Was the plaintiff thereupon discharged by the Court out of custody, and was the said prosecution thereby determined ? 7. Has the plaintiff by reason of the premises been injured in his reputation and has he suffered pain of body and mind ? 8. What sum of money (if any) is the plaintiff entitled to recover from the defendant ?

Mr Joynt having addressed the jury, stating the plaintiff’s case, called the following evidence in support of it. George Harper, solicitor and barrister-at-law, deposed to having attended at the Waiau Court-house on the occasion of the investigation into a case of sheepstealing against the plaintiff, he conducting the case for the prosecution on behalf of McArthur Bros, the defendants. George William Schroeder, clerk to the Bench at Waiau, deposed that an information was laid by John Corbett against William Longley Fowler for sheepstealing, which was forwarded to the Registrar of the Supreme Court, Christchurch ; and also detailed the facts of the committal of the plaintiff by two Justices of the Peace to take his trial at the Supreme Court here, stating also that no warrant had been issued for his arrest. B. S. Willcocks, the Registrar of the Supreme Court, produced the information of one John Corbett taken before Hugh Mcllwraitb, a Justice of the Peace at Waiau, dated 27th February, 1875, charging the plaintiff with having on three distinct occasions stolen three sheep, the property of McArthur Bros, the defendants, also the bail bond and indictment of the plaintiff. Mr Schroeder was recalled by Mr Joynt, and deposed to John Corbett having given evidence on oath before the Justices at the Waiau, which was taken down in writing. Mr Garrick then proposed to put the depositions in as evidence, Mr Joynt objected, and

His Honor ruled that it was not the right time to put in the depositions, unless Mr Garrick wished to found cross examination on the depositions. If Mr Garrick wished to use the depositions either for his own case or for cross-examination, he, after hearing Mr Joynt’s objection, would decide it. Mr Joynt then proceeded to examine Mr Willcocks as regarded the indictment.

Mr Garrick objected to evidence being given of the indictment, as there being a public prosecutor for the colony of New Zealand, therefore the defendants were not bound by any action which he might take as against the plaintiff. His Honor would at once rule against Mr Garrick. There was no such thing as a public prosecutor in the colony. It was a perfect fallacy to say so ; de facto there were gentlemen appointed by the Executive of the province, who no doubt rendered great assistance to the Court, but in the view Mr Garrick had put it, there was no such thing as a public prosecutor, and this he stated most emphatically. In law there was no such a person recognised as Crown prosecutor. At present there was no provision against any person conducting his own case and prosecution, so that in reality in law there ■were no such persons as Crown prosecutors, although there were gentlemen called as such.

Mr Garrick would then object on the ground that the indictment must be taken de iene esse until Mr Joynt in some way connected defendants.with it.

Mr Willcocks then produced all the formal records of the trial of the plaintiff at the criminal sessions of the Supreme Court, held on the 6th April, 1875, at Christchurch, and also the recognisances of John McArthur to prosecute and give evidence, and Duncan McArthur to give evidence.

Mr Joynt then recalled Mr G. Harper to examine him as to his engagement to proceed to Waiau to prosecute, and his going over the case with them before the prosecution. He received instructions as to the prosecution from John McArthur, and received his fees from McArthur Bros, the defendants in the present case. Thomas Walter Stringer deposed to being an articled clerk to Messrs Joynt and O’Neill, and gave evidence as to the testimony given by the defendants before the Supreme Court in the case of Regina v Fowler for sheepstealing. Mr Garrick then asked the witness to read his notes of the evidence of John Corbett,

Mr Joynt objected. His learned friend was not entitled to get the benefit of this evidence, ■which bad been procured by the defendants themselves for their own benefit

Mr Garrick contended that the witness having given part of Corbett’s Jevidence as regarded the production of the head of a sheep, he was entitled to have the whole of that evidence read by the witness. His Honor ruled not. Mr Garrick was entitled to have the whole of the evidence of McArthur, as that had been brought forward by Mr Joynt, but Mr Garrick could not get in evidence procured by himself for his own benefit. He would rule that the evidence could not be got in as proposed by Mr Garrick, Of course he did not decide that it might not be evidence to be given by the defendant as part of his own case in proving reasonable and probable cause ; that was a totally different matter. Mr Garrick asked his Honor to take a note of the fact that he had tendered the evidence {is part of the res gestce of the case.

His Honor made the note as requested. Willing Longley Fowler, the plaintiff, deposed, in answer to Mr Joynt—l am a runholder in the Amuri prjvince, and was tried before the Supreme Court on the 6th April, on a charge of stealing sheep, the property of M‘Arthur Brothers. I was arrested at my station, fifty miles from the Waiau. John Corbett arrested me, and took me to St James’ the next morning. He said he arrested me in the Queen’s name, and then left me in ray own house going to his whare. On the morning we went to St James’ Corbett came to me to tell me I must go with him. On the day previous he told me he was a detective, and would take me in charge. He charged me with stealing a sheep, the property of the defendants, McArthur Brothers. When we got to St James’ I saw John. McArthur. The latter came over to the woolshed, and said he was very sorry ; he had nothing to do with it. This was after he and Corbett went away together. While we were at the dip Corbett saw a sheep lying there which I was going to kill. He claimed it as McArthur’s, but I saw my ear mark on it, and told him it was mine. He called on Robinson, my shepherd, to assist him in the Queen’s name to prevent me from killing the sheep. I cut the head off, washed it, salted it, and sewed it up in a cloth. Corbett was with me the whole time, and while in the house getting something to drink Corbett snatched it out of my hand and went away. We went to the Waiau, Corbett taking me before a magistrate there. Corbett came to live near my run in August, 1874, and was very friendly at my house, coming up for milk, butter, &c. It was not until we were at the dip that I became aware that Corbet was a detective. The witness then proceeded to give an estimate of the costs he had been put to on account of the prosecution instituted by McArthur Brothers.] The witness was cross-examined at some length by Mr Garrick,

On re-examination by Mr Joynt the witness deposed that he had not heard in any part of the district that he had been accused of stealing sheep. There were three new ear marks registered at the same time, viz., McArthur’s, Jones’, and plaintiff’s. Stanley Fowler, deposed—That he was the son of the plaintiff, and assisted him on the station. Remembered the defendant and his father having some conversation at the yards some two days 'before his arrest. They were drafting sheep, and a dispute occurred, as Robinson caught a sheep bearing our ear mark, McArthur’s face brand and a run from eye to mouth. It was killed by witness ultimately, but before doing so he showed McArthur that it bore Caverhill’s brand, and was told to kill it. The witness, cross-examined by Mr Garrick, denied having killed five sheep in one day shortly after his father’s arrest. The Court then adjourned until 10 a.m. this day, when the case will be resumed.