KENNEDY V. MILLER.

Wairarapa Age, Volume XXXI, Issue 9181, 2 September 1908, Page 5

KENNEDY V. MILLER.

APPLICATION FOR NEW TRIAL

MOTION DISMISSED

At the conclusion of yesterday's ordinary business' of the District Court, His Honor Judge Haselden heard a motion for a new trial in the case of Kennedy v. Miller. Mr Hollings, in argument, said the grounds for the motion were as follow:—(1) That the third issue was against the weight of evidence. In arguing on this point, counsel said that the jury had nut answered the . issue on a fair and due consideration of the whole of the evidence. (2.) j The finding on the second issue im-' plied a trespass, under section 35 of the Police Offences Act, 1884. Under this Act a constable was entitled to take a trespasser into custody and remove him by foice. The questions I raised in this issi e were really for the judge and not the jury. (3) The basis of tht j action was assault, and the jury had not found that an assault was committed. On the same ground an issue should nave been put to the jury on the question of whether an assault had been committed. (4) The plaintiff became a trespasser immediately he was requested to leave and refused. (5) Misdirection of the jury (a) by not putting to the jury an issue raised in the fourth alternative of the defence; (M in not directitg the jury on the question of unnecessary violence under the particular circumstances. Counsel made a strong plea in favour of the Court upholding the authority of the police force in the removal of trespassers, and asked His Honor to give full consideration to the seriousness of the verdict in regard to the duty of police officers. He thought that no excessive violence whatever had been shown, and the jury had disregarded the expert evidence of the Sergeant himself, who was the most competent person to speak on the matter. Had it been thought that the jury wou'd have regarded this evidence so lightly, ample other evidence would have been called to corroborate it. His Honor said he quite agreed with nearly all that Mr Hollings had said, but counsel would not be disadvantaged by His Honor's refusal to grant the application. It would, in . fact, be the easiest and most convenient course for counsel, as it gave the plaintiff the right of uppeal against the present refusal, and a higher tribunal would have an opportunity to decide the question. Personally, he did not feel justified in going into the question of how the jury had come to their decision on the point of violence. The application was dismissed, | with £2 2s costs. j Mr Pownall was not called upon to i argue.