Charges Under Private Information Dismissed

Press, Volume XCVI, Issue 28446, 28 November 1957, Page 23

Charges Under Private Information Dismissed

The method adopted by Thomas John Downes in bringing a private prosecution against Gilbert Sharman after the police had refused to take action was an abuse of the Court’s legal processes, said Mr L. N. Ritchie, S.M., in the Magistrate’s Court yesterday. Downes had accused Sharman of assaulting him, and commiting mischief by wilfully damaging a motor-car.

The charges, which were proceeded with indictably under the Crimes Act, were dismissed. Downes offered no evidence on the charge of mischief. Downes said in evidence that when he returned to his home at 371 Gloucester street at 12.15 a.m. on September 29 he found Sharman’s car parked in front of the gate. Sharman pulled open the witness’s car door and punched him in the cheek, breaking his dentures. “He muttered something unintelligible and shone a torch in my eyes,” Downes said. “He grabbed hold of the front of my suit, tearing the lining and pulling off an inside button. “He told me that if I ever went to the Old-Time Dance Association hall again he would see that I didn’t come out alive.” Informant Cross-examined To Mr H. W. Hupter (who appeared for Sharman) Downes said he did not hit Sharman in retaliation. He denied partly lying down on the car seat and kicking at Sharman. “This is not the first occasion

that you have crossed swords with Sharman, is it?” asked Mr Hunter. “I have never crossed swords with Sharman in any circumstances,’’ Downes replied. Mr Hunter: Did he ever have necessity to order* you off any property? “He had no authority to order me off any property,” Downes said. The Magistrate: Just answer the question. “He did order me off 279 Innes road, the property of Mrs Clark,” said Downes Mr Hunter: Was Mrs Clark present when he ordered you off?— Mrs Clark was not present. She came in afterwards. Mr Hunter asked Downes if the whole bone of his contention was the fact that Sharman had taken his girl friend. Downes said, “It is not. He is quite entitled to her. He’s entitled to anyone.” Reason for Procedure The Magistrate: Why did you proceed criminally under the Crimes Act and not in the ordinary way under the Justices of the Peace Act? Downes: There are two reasons. There are no Court fees under the Crimes Act, and I have a right to. What Court fees are payable under the Justices of the Peace Act?—There is £1 for each information. Have you taken any other proceedings?—Meaning what? “You know what I mean* the Magistrate said. Downes said that he had laid a complaint to have Sharman bound over to keep the peace, but had withdrawn it because criminal proceedings were pending. Inspector J. C. Fletcher appeared on behalf of the Superintendent of Police, whom Downes had summoned to produce a file. He produced a copy of Downes’s statement to the police. Downes asked the inspector if he had a copy of Sharman’s statement.

Privilege Claimed “As a matter of fact I haven’t,” Inspector Fletcher said. “I must claim privilege on anything the Sharmans told us when they were interviewed. As a police officer I may not divulge anything related to me in this particular case.” The police had refused to prosecute Sharman because they considered the 1 alleged assault a “tripartite connubial affair,” Inspector Fletcher said. Downes persisted in demanding that Inspector Fletcher produce the file. He produced a 1932 law Court decision which said that anything told to the police was admissable as evidence. “Don’t you realise that that decision has been overruled?” the Magistrate asked. “There was a 1942 decision of the House of Lords.” Downes: But this was ths Supreme Court. “You have launched into something I shudder at,” the Magistrate said. “You are taking proceedings that are going to be a terrific expense to this country when the amount involved that you wouldn’t pay is only £l. “No man is going to hold 13 or 14 good men and true up to ransom unless he’s got a rattling good case. “I haven’t even got the right to demand the file. Why should you?” said the Magistrate. Magistrate’s Comment “This particular action at the moment savoury of an abusive little process,” the Magistrate said. Mr Hunter said that Downes was vindictive and determined to make all the trouble he could for Sharman and his wife. Downes wrongly felt that because of Sharman he had lost the friendship of Mrs Clark, now Mrs Sharman “His bringing this action was i disgusting to say the very least of ' it.” Mr Hunter said. | Enid Cecilia Sharman said that ’she had known Downes for three i years. “He had asked me to accompany him to dances, but 1 was not interested.” “The prosecutor in this case has admitted a fondness and proclivity towards litigation,” the Magistrate said. “He called the police, who took no action. “Downes was a disappointed suitor for the defendant’s wife’s hand, and what took place on September 29 was at the very worst a storm in a teacup. The present indictable charge of assault was brought by Downes because, as he say he saves £1 Court costs, and he has the right to do it. This approach savours of a very wrongful practice.” Before the Court adjourned. Downes said that he would take the case to the Supreme Court. The Magistrate: You can take it where you like as far as I im concerned.