CHARGES AGAINST PRISON OFFICER DISMISSED

Press, Volume CIX, Issue 31908, 8 February 1969, Page 42

CHARGES AGAINST PRISON OFFICER DISMISSED

(New Zealand Press Association)

AUCKLAND, February 7.

Two charges alleging assault by a prison officer upon a prison inmate during July, 1967, were dismissed by Mr J. R. Drummond, S.M., in the Auckland Magistrate’s Court today.

Mr Drummond was presiding over the hearing of private information alleging two charges of assault by the officer, Mathew Malcombe, on an inmate, Peter Fulcher, on July 21, 1967.

The charges were alleged to have occurred in a van while the inmate was being taken from Waikeria prison in Te Awamutu, to Mount Eden prison. Mr Malcombe pleaded not guilty to the charges.

Mr Drummond held that the charges had not been established and accordingly dismissed them without hearing evidence from three defence witnesses. Mr H. M. Romaniuk appeared for Mr Fulcher, and Mr P. B. Temm for Mr Malcombe.

Opening the case for the defence, Mr Temm said that it was easy for a prisoner to

make sweeping allegations against prison officers. "A man in Fulcher’s position has nothing to lose by making statements which are exaggerations or deliberate lies,” he said. No Mention Mr Temm said that the other prisoner had made no mention in his evidence of a blow allegedly dealt to Mr Fulcher by Mr Malcombe on the motorway. When Mr Ful-

cher complained of a broken jaw, Mr Malcombe had examined it, according to the other prisoner. Mr Fulcher was beside himself with fury and was not prepared to obey instructions. The only way to make him obey was the use of force, he said. The force Mr Malcombe used was no more than a man like Mr Fulcher needed, he said. Mr Malcombe said in evidence that the moment he and the prisoner entered the van Mr Fulcher kicked at a window. Mr Malcombe said he cautioned Mr Fulcher, who referred to him as a bastard. Mr Fulcher was cautioned several times again but became abusive and struggled. Mr Malcombe said he had no alternative but to subdue Mr Fulcher, and he hit him two or three times. Mr Fulcher “later became a model prisoner, and was far from semi-conscious.” ( Mr Malcombe said that; after he arrived at Mount I Eden he reported the matter; to the prison superintendent,; and Mr Fulcher was charged, j Knew Some Holds The first Mr Malcombe had heard of the proceedings was in October of last year. Cross-examined by Mr! Romaniuk, Mr Malcombe said( that he had never spoken to! Mr Kevin Ryan. He said he could not recollect anybody putting a hand over Mr Fulcher’s mouth at Mount Eden to stop him talking to Mr Ryan. Asked if he had ever hit anybody at Waikeria prison, Mr Malcombe said he had used force. He knew some .armlocks, but not their terms. Asked if it would have been better to use another form of force to subdue him Mr Malcombe said that he had tried verbally but it did not seem to have any effect.

Summing-up, Mr Drummond said there was no substantiating evidence of Mr Fulcher being hit in the prison van once the van had got a short distance from Waikeria. Mr Malcombe had admitted hitting him three times after entry into the van. The defendant, Mr Malcombe, had administered the blows to subdue Mr Fulcher who had entered the van and had behaved violently. The question of Credibility was an important one. Mr Fulcher’s evidence had been at variance with that of Mr Malcombe’s and also with that of the other prisoner, he said. Mr Fulcher’s version of an incident on the motorway was an allegation of conduct cruel and callous in the extreme, said Mr Drummond.

He held that the charges were not established, and dismissed them. Seven witnesses were (called by the prosecution and one by the defence.