A QUESTION OF COSTS.

Wairarapa Age, Volume XXXI, Issue 3056, 28 November 1908, Page 5

A QUESTION OF COSTS.

KENNEDY v. MILLER AGAIN. AN UNUSUAL POINT ARGUED. The now well-known case of Kennedy v. Miller was reintroduced into the precincts of the District Court, Masterton, yesterday, when a matter referred back to the District Court was brought before His Honor Judge Haselden. His Honor was asked to give a certificate under a provision contained in the Police Force Act, 1886, which bears on the question of civil actions against police officers for acts done in execution of their duty. The section (No. 16) concludes: — "Though a verdict shall be given for plaintiff; in any such action, such plaintiff shall not have his costs against the defendant unless the i judge before whom the trial shall be shall certify his approbation of . the action, and of the verdict ob- ' tained thereon." _ ; Dr Trimble appeared for plaintiff (Mr Pownall being absent in Wei- i lington on Supreme Court business), 1 and Mr Hollings appeared for de- < fendant. ' Dr Trimble said he had gone care- I fully through the New Zealand and 1 English authorities, and after thorough investigation had failed to find 1 any founded on the section of the Act under which the application ] was made. He thought that no i further light could be thrown on i the section than it supplied itself. 1 His Honor would remember that counsel for the defendant had taken ! steps in the direction of obtaining a ■ new trial at the District Court on i the ground that the verdict was against the weight of evidence, the j new trial not being granted. Later ! defendant's counsel discontinued i steps taken in the direction of ap- i peal against the refusal of a new trial, 1 an acknowledgment, Dr Trimbl e ] submitted, that there were no < grounds for the appeal. J His Honor said he remembered 3 the facts, and there was no doubt he < was right in refusing the new 1 trial, and in giving a certificate under the District Court Act, but 1 the present case was entirely i different. A general principle need- I ed to be arrived at on which to say 1 whether the action was well founded < or not. '• Dr. Trimble argued that the onus was really on defendant to prove to £ the contrary. Defendant had, more- t over, the option to make amends be- 1 fore ever the action came on, and < thus avoid it altogether. Instead of £ that he allowed the matter to go to 1 trial. Seeing he had lost in the ( action plaintiff was surely entitled i to his costs. t His Honor: Yes, but so far as 1 this case goes, how far can I give 1 effect to any particular view I might 1 take of a case. A judge may dis- c approve of actions fjr seduction, t criminal libel and so forth, but how t far can he give effect -to his dis- t approbation? v Dr* Trimble said that was more | a a question of disapproval of a general policy; and submitted that in the present case it was more a matter of how particular facts were. Counsel agah contended that it was for defendant to prove the case was not one for the judge's approval. Mr Hollings, in reply, contended that neither the action nor the verdict coulJ be upheld by His Honor. In the first place the jury had found that the plaintiff was a trespasser, in a muddled condition, and if that were so, he had no right to complain of the consequences of his actions. The defendant could have gone much further, and arrested plaintiff for drunkenness, but as a matter of fact he had generously allowed plaintiff to witness the match, and had not taken full advantage of his powers. His Honor said he had not overlooked the matter of a possible arrest; but wished to know how far could the defendant have gone]j in thit matter. Mr Hollings contended plaintiff orald have bte.n taken right to the lockup. His Honor: But say I had three rooms in a mansion, and a man, who had a room in another, part trespassed in my three rooms, how far could the police go in ejecting him? Mr Hollings said that was a different case, as in the present instance plaintiff had only been removed from a * l-eserved part. Plaintiff had furthermore been removed in the only proper way under the circumstances. Defendant was an experienced police officer, was doing his duty, and there was no doubt in counsel's mind that had plaintiff been arrested and succeeded in getting off on the two charges no action would be against defendant. A policeman who did the "dirty work" iti the administration of justice was as sui'ely entitled to protection as judges, magistrates and justices. If it were r.ot so there would be actions every day against police officers. His Honor: But if no costs were allowed to persons who took action against a policeman —no matter how greatly such persons were wronged—would the public not say, "Oh, it's no use taking proceedings, as the judge will not allow you your costs," and such costs might he heavy.. Mr Hollings thought it was necessary to go further and ask whether an officer was actuated by malice, or , went out of his way to commit a breach of duty.- He contended that the facts were strongly against that > view in this case and asked His 1 Honor to pause before he gave a certificate of approval to the present [ action. Mr Hollings again referred ' to the way in which the Sergeant " had handled Kennedy. 1 His Honor admitted that all the t facts were in favour of defendant j I except on the issue of unnecessary j violence. e Mr Hollings closed his argument 0 with a strong appeal to His Honor to consider the moral effect a certificate of approval would have on the efficiency of the police force of the colony. There would, counsel 3 submitted, be no protection what--6 ever for police officers if the present d action was approved, and if it were ir the sooner policemen took off their t: uniforms and told the Department to n get someone else to do the work the > s better off they would be. n His Honor said he would take fc - time to consider the matter, as the case established a precedent.