Palmerston District Court.

Manawatu Herald, 26 February 1898, Page 2

Palmerston District Court.

# DE BIDDER v. CONSTABLE GILUESPIE. •; JUDGMENT FOR DEPENDANT WITH COSTS. In tbo abovo Court yesterday morning, Judge Kettle gave judgment in the case of 'Ethel Dd Bidder v. Constable Gillespie. He said that in this case plaintiff was a young girl barely eighteen yearß of age, and she sued by her nearest friend* her father. Defendent was a police constable of the Ist clas?, stationed at Poxton, in the Wellington Police District, at the timcTof the occurrences referred to in the action. The case was a most exceptional one* Ha was nob aware of a police constable aver being sued, in New Zealand at any rate, or any other judicial officer for malicious prosecution in connection with his conduct in the performance of the duties of his office. The plaintiff alleges that defendant, in prosecuting her for perjury, acted without reasonable or proper cause and maliciously. The onus of proof in a case of this kind rested on the plaintiff. There must especially be clear evidence that defendant instituted the prosecution without reasonable and proper cause, and that he did it maliciously— that he acted from improper motives and in a vindictive spirit. This was clearly laid down in the English ease Brown v. Hawkea, by Justice Cave, and in the case Abrafch v. North Eastern Bail way Company, when the decision was upheld in the House of Lords. Lord Esher, Master of the Bolls, then said :— " If the direction^ of Cave J., to the jury was simply that it was a accessary part of the question whether there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff, that it should be decided whether reasonable care had been taken by the defendants to inform themselves of the true state of the case, and that the burden of proving that minor proposition, as well as the whole proposition, lay upon the plaintiff, it 13 a direction which jannot be impeached." The plaintiff illeged that Constable Gillegpie -had 10 honest belief in the charge, and lid cot take veasoaable and proper sare to inform himself of the true acts of the case, and the onus of >roof of such allegations rested upon

It!

Uf

the plaintiff, more especially in a case where a police officer who must, from Ihe nature of his office be assumed to be acting in the discharge of his duties. The clearest and strongest proof ought to ba required in the public interest of the miscon« duct alteged. The history of the affair wag that on the Ist of July, 1896, the plaintiff in this case, who was just over sixteen years of age, gave birth to a child. She concealed Eeje condition from her mother until SIX months had elapsed, and the mother was entirely ignorant of the fact till shortly before the girl's con« finement. When she did discover it, she says her daughter told her Frank Thynne had had improper relations with her against her will. The mother communicated with the father qi the lad. She Went to see Mr Thynne, sen., arid Mr Da Bidder wrote to him and, by hia solicitor, accused Frank Tbynne of being the father of the child. Mr Thynne, on behalf of hia son, absolutely and emphatically denied the accusation. No information was laid against Tbynne until the Brd of March, 1897, when Mrs Da Ridder laid an information under the Destitute Persons Act, but the Bummons was not served until the 25th of March. It was alleged by plaintiff and attempted to be specially shown that ' defendant bad wickedly and maliciously delayed the service of the summons on Thynne. In hi« opinion that allegation, had been absolutely disproved— there was no proof what •ver that defendant had neglected his duty. Mr Matravers, the Clerk of the Court, swore positively that there waa delay in connection with the summons being sent to Foxton. He remembered that thiß Bummons was not sent down for two days after it waa made out. Defendant also swors that he did not receive it until young Thynne had left for Auckland with some polo ponies. His Honor was satisfied that was so— that there was no failure of duty on the part of the constable. Of course the summons might have been sent on to Auokland or have been sfetved along the line, but defendant states that he said as much to De Ridders, but his suggestion was not adopted. That was all the more likely as it was not even suggested that Thynne did not intend to return to Fox ton. On this 18th of, March the S.M., after hearing svidence, made an order against Frank Thynne. Daring th.c hearing plaintiff swore that on two occasions -on two Sunday evenings after she had heard the RiV. Mr Aitkins preach at the church in Foxton -young Thynne had taken advantage of her on the way home, against her will. Strange to say she did not, as one would think she would do, say a word to her mother or sister about it. Her Bister, who was with her on the way home, was not called as a witness in the affiliation case, and made no complaint against young Thynne, and did not disclose anything until three months before the confinement. It w.ja important, under the Destitute Per3on3 Act, that the date of the soduc'ion should b 9 a certain period before tin birth of the child. It was also necessary to induce the Magistrate to believe that only one person had anything to do with her at the time in question, in order to get judgement in her favour. If her evidence in any of these particulars was false she must have known, and they must have been made with the view of deceiving the Magistrate. In that case there could be no doubt the would be committing perjury as defined in the Criminal Code Act. So that if plaintiff knowingly told the Magistrate untruths with regard to the time or the person, she would no doubt b 9 committing perjury within tbe meaning of the Act, Defendant was present in Court daring tbe hearing of the affiliation ease and- heard all the evidence. He says from that and what he heard afterwards, he formed the opinion that tbe girl had committed perjury. On the 18 hof March, Mr ! Thynne, H«nr., filed a motion in Chart asking for an order for the custody of the child, under the Desti* tute Peraona Act, thinking, he could arrange for its keep at less expense than 10a a week. On the 22nd of March, he consulted Mr J. H. Hankint,,solicitor, with reference to the matter, having written to him the previous day making the appoint ment. He waa accompanied by defeudant. He swote ho asked Constable Gillespie to accompany him in order that Mr Flaakins might see the evidence collected and tbe result of enquiries made, so as to compare with the evidence given by plaintiff. Between the 22nd March and tbe sth of June, defendant made up his miod to institute a prosecution against the plaintiff for perjury, and on the sth June Mr Thynne wrote to Mr Hankins asking him to delay acting until the perjury case was disposed of. It was alleged by L olaintiff that about this time thers was a conspiracy brewing between Thynne and defendant to bring a ease against the girl for perjury— a wicked conspiracy bstween them— and that they were acting colluaively, There was a'charge of a very serious nature, and under section 119 of the Criminal Cod Act, rendered th« parties liable to long terms of im prisonment. In his opinion then was not a tittle of evidence to just if; the Oourl in finding that tbers wai

such collusion or conspiracy. The proof of such an offence would have to be clear and beyond any doubfc. Defendant says he believed tbe girl committed perjury. If ha was satis fled she had done so, it was undoubtedly his duty to take some action in tha matter. Whether it was his duty to lay the information without consulting his head officer His Honor was not prepared to say. The regulations were extremely vague in this respect. There was go doubt that in making inquiries defendant was the best judge as to whether the evidence available. His Honor then referred at length to the duties of a constable as laid down in the Police Force Act, 1886, the regulations, and Judge Johnston's " Justice of the Peace " (new edition). In carrying put his duties as a constable in the perjury case, defendant would necessarily be act ing in Thynne's interests, as the conviction of the girl for perjury would naturally affect the position young Thynne waa in in regard to the affiliation order. But it could not be said merely because defendant was working up what he thought was a case of perjury which suited Thynne that he had an indirect | motive, ond wished to favour and help Thynne. Then, again, a constable was not bound to overlook a crime because the person was a young or delicate girl. When it was thought a criminal offence had been committed, and the guilty party rendered herself liable to a prosecution, there waa no reasou on earth why the matter should be set aside. It would be striking at the root of the good government of the people. It waa necessary, if tbe crime was committed by persons legally capable of committing crime, for the police to do their duty honestly and fearlessly without any consideration for particular persons. What was the nature of the cvi dence defendant relied on to establish the perjury. Mrg Walrefield, for instance, was prepared to swear positively she saw Purcell and plaintiff having improper relations. It was suggested that the De Ridders and Mrs Wakefield were at enmity. Certainly evidence was given about some slight disagreement about an account with Mrs_ De Ridder, but his Honor was not prepared to say that a Jury of reasonable men would discredit her positive evidence on that account. A charge had been made against Mrs Wakefield of improper conduct, but there was not a tittle of evidence in support of it, and her credibility had not in any way been shaken. Besides that Mrs Wakefield had been to De Didder's house after the dispute referred to, and had assisted to nurse the daughter. Being the nearest neighbur, she was able to observe what was going on. There was no ground whatever for believing she would perjure herself to save the Thynnes, who she hardly knew. Walden also swore he had seen someone he had no reasonable doubt was Purcell in the act described by Mrs Wakefield, and there was no reason to doubt Walden, who was an outspoken man, earning his own living independently in Foxton, with little reason to like Thynne. Then young Stansell's evidence was a direct contradiction of the girl's, and there was no reason to doubt what he said. So tar as Toogood was concerned, his letters to young Thynne were quite sufficient to justify the belief that he was also in a position to contradict the girl's assertions. Having weighed all the cvi' dence and having satisfied himself that there was a prima facie case he laid the information on the 7th June. Mr Fitzherbert reminded His Honor that there was no corroborative evidence shown. His Honor said that even if Mr Fitzherbert's contention were correct, and he was not prepared to admit it, that corroborative testimony was necessary as well as evidence of independent instances of improper conduct, he would not say that the constable was liable for being incorrect as to the law. He had collected a mass of evidence, and on these facts being satisfied that perjury had^been committed, he took action. It had been said that he had exceeded his duty in laying the information without placing the evidence at his disposal before his superior officer. It was only fair to say that there was no regulation to compel any constable to do this. It may be that such a regulation should be framed, but Constable Gillespie stated that except in one or two cases, he had never done such a thing during his 22 years' service in the force. He had always acted on his own judgment. His Ho- , nor thought it highly desirable there should be some . regulations on this point, and no doubt the Police Commission now sitting in the colony would make recommendations in regard to that. The charge of perjury was heard before two Justices on the 17th and 24th June, and was dismissed on the 7th of July. He had read the whole of the evidence taken, but it was not for His Honor to pass judgment upon what the Justices did. They , no doubt honestly performed their : duties of their office. They may probably — and probably they did — have mistaken their duty and thougt it was 1 for them to make up their minds 1 whether the girl was guilty or inno- » cent, instead of leaving it to a jury of \ reasonable men. It was not for His r Honor to discuss the action of the , Justices. When the case was before the Justices there was no doubt Constable Gillespie was keen — it was the k duty of every constable to be keen and " active. He was not prepared to say • that the inference was the one the . plaintiff desired him to draw. He 3 certainly pressed the case to the very 1 utmost. Constable Gillespie was a ". man of exceptional ability as a constable — a man who knew his duty, and was prepared to do it regardless of all c consequences. Anyone who knew Mr f Wilford coujd understand that when 0 the constable was opposed to a solici-

tor of His ability, he, would probably get annoyed. Mr Wilfofd was doin^ his best for his client, and the constable! desired to show he had reasons for the course he was taking and was quite capable of holding his own. The charge was dismissed, and defendant, thinking he was justified in taking a more serious viev/ of the charge, had himself bound over to prosecute in the Supreme Court, but he did not follow that up. He torwarded the case to his superior officer, and receiving no reply, dropped the matter. A question as to whether the Justices had power to bind him over to prosecute under the Vexatious Indictment Act had been raised, but that was not worth considering at present. The De Ridder's then made certain charges to Government against Constable Gillespie, and Mr Haselden, S.M.. held an inquiry on 2nd October. The evidence had been put in, but owing to the opposition of the Department, the report was not available. Other charges were made against Constable Gillespie at this inquiry, and he had since been removed from Foxton to Wellington, but whether as punishment and what for there was nothing to show. It was a matter of public notoriety that when an officer did his duty fearlessly and honestly, he was liable to offend certain members of the community and might get into trouble — he was bound to tread on the toes of certain people. If an officer did his duty in that way he ought to receive the protection, not only of the public, but of the Government. He was entitled to that as a matter of right. On the «2nd December this action was commenced, and he wanted it clearly understood' that he was not called upon to decide whether young Thynne was the father ot the child, whether the Magistrate's order was a proper one, or whether Ethel De Ridder had committed perjury. The whole of the evidence in this case satisfied him that Constable Gillespie, in lodging the charge ot perjury had not acted without reasonable and proper care. He was satisfied no jury of honorable men would draw the inference plaintiff asked him to draw, as to the collusion with Thynne. As a matter ot course his sympathies- were with the unfortunate parents, who had a great deal to bear. But a Judge must not be swayed by sympathy. His only consideration was, what is the law and what is the right. He was satisfied plaintiff had not established to his satisfaction that I defendant acted without reasonable or proper care or acted maliciously, and the charge of conspiracy was absolutely groundless. Mr Fitzherbert hinted that he knew reasons why the defendant should favor Thynne, but he had not brought any evidence of that — the Court required proof, not insinuations. There was no evidence to iustify any jury in coming to the conclusion that defendant, in instituting the prosecution, did so in collusion with Thynne in anticipation of some small favors. Defendant also contended that the action had not been brought within proper time— within four months of the cause of action, but there was no need to go into that, although he thought there was a great deal in the contention, as the cause of action was given on Ist July. Judgment would be given for defendant with costs. [It is understood costs include costs between solicitor and client, as well as Court costs.]—" Standard."

- They are sold by chemists, and by Dr - Williams' Medicine Company, Wellington I- N;Z., at 3s. a box, or six for 15s. 9d., but [ are gentiirle only with full name on each box. See that your chemist gives y"ou Dr : Williams' and he does not substitute something jnst as good when making your purchases. The " just as good " kind cost him less money, and he is looking out for ! his pocket not your health.