RESIDENT MAGISTRATE COURT.

Westport Times, Volume IV, Issue 717, 29 September 1870, Page 2

RESIDENT MAGISTRATE COURT.

Tuesday, September 27. (Before J. Giles, Esq., E. M.) COSTELLO Y. M'COBITACK. In this case the defendant was charged upon information with having assaulted the complainant on the 12th instant at Westport. Mr Home appeared for the complainant, and Mr Fisher for the defendant. William Costello: I am a carter. On the 12th instant T was taking goods from the Mary, when the defendant called me a cur and threated to strike me. I gave him no provocation, but I was struck twice by him, and knocked down. Cross-examined: I did not lift my hand to the defendant. Several witnesses were called, who corroborated the complainant's evidence as to the assault, and the Bench fined the defendant £3 and costs. m'coemace; y. costello. In this case the defendant was charged with the use of insulting and abusive language, but the information being unsupported by evidence, the case was dismissed. ciyil cases. Chapman v. Hunter.—Claim for £7O for damages arising out of an alleged assault. Mr Pitt appeared for the plaintiff, and Mr Home for the defendant. The service of notice of intention to bring an action, in conformity with the Constabulary Ordinance, having been admitted, the following evidence was called for the plaintiff:— Isaac Chapman : I am the plaintiff in this action. About two o'clock on the morning of June 14th I left Sheahan's Hotel. I had been in company with ten or a dozen persons there. I particularly recollect speaking to a man named Harrold, and telling him where I stopped. I went in the direction of the Empire Hotel, waiting for Harrold to come out of Sheahan's, and as he did not come I proceeded to a cottage near to Jules Simon's for the purpose of meeting a party whom I had seen earlier in the night. I knocked at the front and back doors, and threw a handful of gravel on the cottage, when a man with whom I was acquainted came out, named Hamilton. He was not the person I wished to see, and after passing a joke I

went away. I subsequently met a woman in the Btreet, and I now know her name to be Beatrice Lee. I accosted her and asked what hotel she stopped at. She answered Maguire's, and I thought she was joking with me, knowing that she could only refer to the gaol, and that it was impossible that she could be in the streets at that hour if she resided there. I replied that she might have found a more respectable house than that, and she went away. I have since learned that she lived in a cottage belonging to Mr Maguire. As she went I threw a pebble after her. She then went to the camp, and I followed, standing in front of Sheahan's. I then went in the direction of Molesworth street, and stood under VVhyte and Pirie's verandah. I saw Hunter pass and the woman following. I laughed at the idea of their being after me, and Hunter turned in the direction I was. He came up and said "is that you ?" I said " Yes, it is," and he immediately took me by the collar and swung me backwards into the street. I fell into a pool of water. I told Hunter he had no right to interfere with me, and argued with him as to hi 3 duties. Ho then seized me, and despatched the woman for the night-watchman. After she had gone he struck me, and I remonstrated with him, telling him that his proper eourse would have been to have told the woman who I was, and to have instructed her how to proceed against me. He then drew off and pulled out what I took to be a crop whip, striking me on the forehead with it. The whip cut me to the bone. I felt that I was severely cut, though not stunned. I said " I have heard of you before, Hunter; you are quite capable of this sort of thing." With that I turned round and felt my head ; while in that position I received a blow on the crown of the head, and I became senseless. "When I recovered consciousness I was in the watch-house. 1 felt very ill, and believed that I was in danger. I was cut in three distinct places, and a portion of my scalp was hanging loose. I called for a doctor and Sergeant Keily. I stamped with my feet to attract attention, and finally Hunter threatened to fasten me down unless I was quiet. In the morning I found that I had been bleeding profusely. My face and neck were covered with blood, as also my upper garments, and there was a good deal of blood in my boots. My hair was matted with blood, sand, and grit, and I was very anxious to get medical assistance. About nine o'clock I saw Sergeant Keily, and shortly afterwards Dr Thorpe' The latter dressed my wounds, and I was subsequently released on bail. I had an appointment with Dr Thorpe, but in consequence of his services having been required at a distance, I had the wounds dressed by a person from Nelson, whom I visited three times in two days. When I again saw Dr Thorpe, he instructed me to go into the Hospital, where I remained ten or twelve days. After leaving there I was again attended by Dr Thorpe, for which I paid him £3 3s. I paid £4 4s to the treasurer of the Hospital and £1 10s to the doctor from Nelson. In consequence of the injuries I received, and from the effects of which I still suffer, I had to put a man in my store to represent me, as I found it necessary to have out-door exercise. If I remain any time in the store I feel ill. I also had to go to Greymouth to get one of my witnesses, the police being unable to serve the subpeena. That witness is present. In my estimate of £7O for damages, the sum is very much understated, as I have been put to fully that expense since this action was commenced. The amount of damage I have sustained is certainly £l5O.

By Mr Home: I was in the force in Otago. I was ostensibly attached to the detective force, but my duties related chiefly to the inspection of cattle landed at Port Chalmers. I left the force of my own accord. I will swear that I offered no further provocation to Hnnter than what I have already stated. What I said to him had very probably the effect of annoying him more than if I had offered actual resistance. I will swear that I was sober— perfectly sober. I have not tampered in any way with the witness Beatrice Lee. I offered her £2 for expenses at Greymouth, and would have given her more money but was advised only to tender the amount of her passage. I do not know a woman by the name of Mary Ann Smith. I recollect nothing after the second blow. I have an indistinct idea that my hands were tied and that something was said about a revolver, hut whether that recollection is due to something that really transpired or whether it is in consequence of what was related to me subsequently that I imagine I recollect the circumstances, I cannot say. I recollect nothing distinctly after receiving the second blow.

Samuel Thorpe gave evidence as to the injuries inflicted. There were three distinct wounds which must have been inflicted with a blunt instrument or object. Two of the wounds could not have been produced by a fall; the large wound might have been so caused but he would not give it as his opinion that it had. The hair was wedgedunder the scalp and a good deal of dirt had also lodged in the wound, apparently as if the head had been dragged along the sand. Chapman was under his care until July 20th. By Mr Home: I perceived no smell of drink about the plaintiff the morning I dressed his wounds. There

was a great deal of blood about his person, and he appeared weak from the loss of blood. It would exhale an odour likely to overcome the smell of liquor. Beautrice Lee gave evidence of having met Chapman on the morning of the 14th, his accosting her and the abusive language he made use of. Chapman persisted in following her, and she went to the Camp and saw Hunter. The latter got up and followed the plaintiff, and, on coming up with him, said he had better go about his business. Hunter got hold of Chapman and shoved him and then told witness to go for the night-watchman. When she returned Chapman was on the ground; his hands were being tied and while in that position Hunter struck him a blow on the head. Hunter then lifted him up and took him to the watch-house. She could not say whether Chapman was sober or under the influence of liquor ; from his conduct she concluded that he must be the latter. The evidence of William Harrold and William Greenroy, who had been in the plaintiff's company on the morning of the 14th up to his leaving Sheahan's, went to show that he was perfectly sober.

The above closed the evidence for the plaintiff, and for the defence the following witnesses were called : Henry Hunter: I recollect the morning of the 14th. About three o'clock I was aroused by the witness Lee, who complained of some blackguard abusing her in the street. She said that she wanted to gu the steamer Kennedy, but could not do so in consequence of the annoyance given by the plaintiff. I looked out of the door and she pointed out Chapman in front of Sheahan's. I got dressed and followed Chapman to Molesworth street, near Munro's auction room. I asked him what he meant by conducting himself in such a manner, and repeatedly advised him to go about his business. 1 said such conduct would not do. Chapman was very abusive, and used very offensive language towards the woman in my presence. I then took hold of him, and said he would have to go to the Camp. He resisted strongly, and knowing what he was I sent Lee for assistance. We struggled together, Chapman kicking and offering every resistance. I told him if he did not come 1 should use the baton, and the resistance being continued 1 struck him on the head. Chapman then dashed his hand into his pocket, and swore he would blow my brains out with a revolver. I felt confident he had a revolver, and I dealt him another blow. I then got him down after a further struggle, and fastened his hands with the belt he wore round his body. He said he would then go to the Camp. He got up, and on reaching the corner of the street he again resisted. I threatened to strike him again if he did not go quietly. Chapman called to a passer-by, but on my threatening walked on. The evidence of Mary Ann Smith went to show that Chapman was under the influence of liquor shortly before the arrest, and Constable Williams stated that he saw him at Sheahan's about half-past two o'clock the same morning. Chapman was then not sober, and on calliug for some drinks Mr Sheahan advised him to take soda or lemonade. A publican named Bonguelmi gave evidence that Chapman was very quarrelsome and violent when intoxicated. Under cross-examina-tion the witness admitted that on the occasion referred to there had been a dispute about an attempted robbery, and that some money in the struggle dropped on the floor. Beatrice Lee, recalled, in answer to the Bench stated that Chapman, in the presence of Hunter, and previous to the latter taking hold of him, made use of very abusive language towards her.

Both counsel then addressed the Court at considerable length, and his Worship gave the following judgment: This is a case of much importance. On the one hand it would not be advisable to check the efficiency of the police in the execution of their duties, or to give rise to a belief that a constable, if using even necessary violence in theirfulnlment, would render himself liable to an action for heavy damages. On the other hand the public have a right to expect that the duties of the police shall be performed with moderation, and without recourse to undue personal violence. If the arrest had been unjustifiable he would have had no difficulty in treating the case. Mr Pitt had argued that the use of abusive and improper language in the presence of a Constable did not justify an arrest. He was of opinion that under the Vagrant Act such a power was conferred. But, setting that aside, he must conclude that the evidence as to the plaintiff's being in liquor was conclusive. Independent and reliable witnesses had stated that Chapman was not drunk when he left the public house, at the same time he might have had the appearance of being sober while in their company, and the fact of his being in liquor might only have shown itself after he left the house and on becoming excited. Looking at the actions of Chapman and the evidence of defendant's witnesses he must conclude that he was not sober when the occurrence took place. The arrest, therefore, having been justified he had only to decide as to whether unnecessary violence had been resorted to, and, he regretted to say, that the evidence.he considered, had fully shown that great violence had been used. As to the use of the baton by the defendant, the facts were too strong to be

got over. He did not think there had been sufficient cause for the use of the baton as it had been used. He did not think that the baton was put into a policeman's hands except for use in self-defence or in cases of necessity. It was not to bo used in the case of every breach of propriety, or on any small show of resistance, and he was sorry to say that the evidence showed that it had been thus unnecessarily used. If the constable had really reason to believe that the plaintin" was going to shoot him, he would, no doubt, have been justified in taking measures for his own safety, although even in such cases as that, he (the Magistrate) had known cases where constables had shown great pains and patience before resorting to any personal violence. In tin's case the constable used the baton merely because the plaintiff resisted him. He could not believe that this took place without some reason. He believed that, after his hands were tied, and after a strong blow ou the head the plaintiff was struggling, if not kicking. But although there was this reason for interference, he could see nothing to justify a blow with the baton. That gives a totally different color to the case. It was rather difficult to decide whether the constable struck the plaintiff after he was down and tied. He would be sorry and slow to believe that such could be the case. Beatrice Lee said it was so, and, without impugning her veracity, it was possible her recollection might not be altogether correct. His conclusion was that, although there was no reason to think that the arrest was an illegal one, still the defendant used more violence than was necessary and more than he was justified in using, and that it was violence which was attended by some severe injuries to the plaintiff. But, taking that view of the case, he could not hold that the plaintiff was entitled to heavy damages, lie could not overlook the fact that the plaintiff had put himself in the wrong at the outset by using foul and offensive language to a woman. Still he was entitled to some damages, and judgment would be given for the plaintiff for £ls damages and costs.