ASSAULT CASE SEQUEL.

Manawatu Herald, Volume XXXVI, Issue 1329, 26 November 1914, Page 3

ASSAULT CASE SEQUEL.

ALLEGED MALICIOUS PRO

SECUTION

MARTIN v. EASTON

A sequel to the case heard in the Magistrate’s Court, Palmerston N., on September 14th, when Frederick Spencer Easton proceeded against Nicholas Martin for alleged assault, the case being dismissed by the Magistrate, Mr J. W. Poynton, took place at the Supreme Court Palmerston North yesterday, when Martin claimed from Easton the sum of .£SOO general damages, and 19s 4-d special damages for alleged malicious prosecution. Mr H, Gifford Moore appeared for plaintiff and Mr H. R. Cooper for defendant. Mr Justice Hosking was on the Bench. The case was heard before a jury of twelve, the following comprising the panel : A. Matheson (foreman), L. G. Horn, J. C. Jensen, J. Scheldt, J. Bennett, H. Shaw, A. E. Naylor, E. Jones, A. B. Melrose, W. I. Lovelock, J. Mitchell, T. Richardson. Plaintiff alleged that, on August 15th, 19x4, defendant maliciously and without reasonable and probable cause, laid an information for assault causing actual bodily harm. Prior to this, he had laid the circumstances before the SubInspector of Police at Palmerston, who, after enquiry by the police, declined. to take the matter up. Defendant then laid the information, arid caused a warrant to be issued for plaintiff’s arrest, plaintiff being arrested eighteen miles from Hastings, and having to appear there, at Foxton on September 4, and at Palmerston on September 14. when the charge was dismissed.

Defendant admitted laying the information, but denied that he acted maliciously. He asserted that he had reasonable and probable cause for preferring the charge for assault and taking the proceedings and in doing so acted in the bona fide belief that he was discharging a public duty. Mr Moore briefly outlined his case, and called Sub-Inspector Marsack as a witness, but Mr Cooper objected to his giving any evidence as to what took place between witness and the defendant. Mr Cooper contended that if the police were obliged to give evidence of every statement made to them no one would be safe from actions for slander. His Honour said that communications between parties and the police should he protected. Counsel ior plaintiff would be able to cross-examine E)aston as to what took place between himself and the police, but he held that the police could not be called to give evidence of this kind.

Mr Moore then called Frederick Woods, constable in charge of Foxton, who stated that he knew both parties—Easton for about eight years, and Martin for about five years. P'aston never interviewed him in reference to the case. He knew Martin as a quiet, respectable man. He also knew his reputation in the district, which was that be was of good character, sober and hardworking. He also knew Easton’s reputation —

Mr Cooper raised an objection to counsel questioning witness as to Easton’s character and reputation, and His Honour upheld the objection. Nicholas Martin, the plaintiff, was next called. His evidence in chief was similar to that given in the Lower Court. On the night on which the assault was said to have been committed, June witness stayed at the Manawatu Hotel, retiring to bed at a little after 10 o’clock, and did not leave his room, No. xc, again until about seven o’clock next morning. He did not leave Foxton for Hastings until four days after that. There was no secrecy about his movements between June 30th and July 4th, He was in and about Foxton during that time. His marriage was fixed for September 3rd, and it was generally known in Foxton that he was to be married on that date. As far as he knew, no enquiries were made by Easton, or anyone on his behalf, as to witness’ whereabouts. He swore positively that he bad nothing whatever to do with the assault on Easton. As a result of the prosecution he was put to considerable expense. He had never been before the Court before in his life. Joseph Smith, who accompanied Martin from Foxton on May 29th, when Easton assaulted him, stated that he waited on the road whilst Martin accompanied the young lady to Easton’s house, for the purpose of taking the saddle off the horse and letting the animal go. He heard Easton using some bad language and heard him say, ‘‘l’ll have you in gaol before long.” Percy Lumsden gave evidence similar to that given by him in the lower court. Arthur Edwards also gave similar evidence to-that given in the lower court. He denied telling anyone hat Martin had knocked Easton out. He bad said that someone had knocked him out, but he didn’t know who it was. If Freeman and Trask said that be told them that it was Martin he would contradict them. . This concluded the plaintiff s case. Mr Cooper said he would move for a non-suit, on the following grounds : Firstly, that there was no evidence to go before the jury of facts that showed that the plaintiff had proved that the defendant had acted without good cause; secondly, there was no evidence that defendant acted maliciously in laying the information. He contended that the question of

whether there was rea *?" a S® bable cause was for H and not the jury. , His Honour said the only question to put to the jury was that whether after hearin a the reading of the evidence giv n n the lower Court, they could say whether the delendant bad reasonable and probable cause. Mr Cooper said that defendants own knowledge of what took place, was reasonable and probable cause for the action he had taken. His Honour said the question for the jury was, did defendant honestly believe in his own case . He had shown his belief in his case by giving sworn evidence in the Lower Court, and if it were held that he did not honestly believe in his own case then it amounted to saying that he had been guilty of perjury in connection with his previous evidence. His Honour said he couldn't say that, and couldn’t come to the conclusion that there was not reasonable probable cause that be disbelieved in his own case.^ Mr Moore said that it was possible that defendant, at the time the assault was said to have been committed, was in such a muddled condition that be really could not say who committed it

His Honour reserved the point until after the adjournment for lunch.

On resuming after lunch, His Honour said that he had further considered the point raised by Mr Cooper. In view of the suggestion that defendant at the time was not in a condition to judge as to what actually took place, he would allow the case to go to the jury, but would reserve to Mr Cooper the right to move for a non-suit afterwards.

' For the defence, Mr Cooper called Leonard Robert Freeman, who stated that Easton was in his hotel on June 30th. He was sober. Witness had never seen him drunk. He went upstairs and had a sleep in the evening, and witness went into the room about half-past ten and he was still sleeping. Edwards told witness next day that Martin and Easton had had a row the night previous. Subsequently Easton and Mr Moore saw witness, and he told them what Edwards had told him. Pie was not sure whether he told the police that Edwards had told him that Martin and Easton had had a row. William Trask stated that four or five weeks after the assault, in conversation with Edwards, he said that be heard P'aston say at the time he was assaulted, you cur, Martin. Witness repeated this to Easton a few days afterwards.

After counsel had addressed the jury, the Judge summed up, and put the following questions to the jury ;

(i) Did Easton, when he instituted proceedings against Martin, honestly believe in his own

case ? (2) Did Easton, if he did not

believe in his own case, act

maliciously ? (3) What damages is Martin eu

titled to recover ?

His Honour said that if the jury answered the first question in the affirmative then there was no necessity to go any further, but if they answered it in the negative, then the other questions would also have to be considered and answered.

The jury answered the questions as follows :

(i) No. (2; Yes. (3) -6 100 general damages, ,^lB

19s 4a special damages

Mr Moore moved for judgment, but this was adjourned to allow legal argument on the non-suit point raised by Mr Cooper.