ALLEGED MALICIOUS PROSECUTION

Dominion, Volume 9, Issue 2857, 23 August 1916, Page 8

ALLEGED MALICIOUS PROSECUTION

SHEEP FARMERS AT LAW ' A TE HORO DISPUTE A dispute between two sheep farmers of Te Horo, concerning an allegation of sheep stealing, culminated in an action for damages in the Supremo Court yesterday, before Mr. Justice Edwards, for alleged malicious prosecution. The actual charge of sheep stealing was investigated in the Lower Court, when the details of the. dispute were ventilated, the result being that tho case was dismissed. The accused in the case,- Edward Gerald de Mey, then proceeded against Percy Gillies, claiming £1000 damages for alleged malicious pracurati<inj)f a warrant, and £1000 damages for alleged malicious prosecution. Mr. T. M. Wilford appeared for plaintiff and Mr. M. Myers represented the defendant.' A common jury was empanelled, of which Mr. G. J. Sellers was foreman. The statement of claim was to the effect that on June 12, 1916, the defendant falsely and maliciously, and without any reasonable or probablo cause, obtained the issue of a. warrant to Constable Satherlcy at Otaki, authorising him to make a search upon' the farm of plaintiff for sheep belonging to the' defendant alleged or suggested to have been stolen by the plaintiff. On a muster being made a sheep was found amongst the plaintiff's sheep, which the defendant claimed to be his, aiid the defendant falsely and maliciously, without reasonable or probablo cause, instituted criminal proceedings against plaintiff, charging him with stealing a wether sheep of the value of 30s. On July 7, Mr. J. W. Poynton, S.M., heard the chargo and dismissed it. Plaintiff therefore claimed damages in respect to injury, to character, reputation and business, and expense in defending. In his statement of defence, the defendant denied, procuring a search warrant, or, if he did so, denied malice or having acted without reasonable or probable cause; he further denied instituting criminal proceedings; or. if it were shown that he did so, 'denied malice, or having acted without reasonable or probable cause. Counsel For and Against. . Mr. Wilford explained that, de Moy was a small farmer at Te Horo, farming about 125 acres, and had been in tho district about threo years. Gillies lived opposite, but owned more than ono property. On Juno 8, when do Met)' was on his way to Otaki to post a letter, lie saw somo of his hoggets on tho road. He took steps to recover the'straying hoggets and secured two from Gillies's paddock:, Later Gillies visited do Mey, aggressively accused him of having one of his. sheep, and threatened to make trouble. De Mey told him to go and do so. He also threatened to punch him (Gillies). Nothing was done for ■■ soveral days. At the Waikanao sale Constable. Satherley informed do Mey . that , a search warrant was out to search his farm for Gillies's sheep. Details of the mustering and the search, were givon. A big hoavy sheep was found which do Mey said belonged to ono Harkness, a neighbour, but Gillies claimed it,' although it did not have his brand. A week later, whilo at the Levin sale, do Moy received a summons for allegedly stealing the sheep. The case was heard in Otaki, and the Magistrate dismissed it without calling upon the defence. , , The Defence. Evidence having been given by various witnesses, Mr. Myers, for the, defence, contended that de Mey had failed to prove that Gillies had instigated the proceedings. Counsel quoted authorities to show that what Gillies did was all that he could have done. The police were 'responsible for all tho proceedings, and fed .admitted tho fact. . De Mey, he submitted, had not proved that ho had a case to go to tho jury , and his client (Gillies) was therefore entitled to a. verdict. Mr. Wilford reviewed, the evidence, and also the depositions, which were taken at' the Magistrate's / Court' at Otaki, and contended that there was a case .to go. to tho jury. The. evidence given by. Gillies in the Lower Court was to the effect thatihe gave tho information to the polico, and the police acted obviously on that information, although Gillies himself did not swear the information. Gillies told the Clerk of the Court, the latter told Constable Satherley, the latter interviewed the witnesses and Gillies, and then swore the information. No Case. • His Honour remarked that anyone could give details to the police of a crime, without being held responsible for the subsequent actions of the police. The evidence of the constables was that Gillies refused to be held responsible for the prosecution. His Honour held that on the evidence Gillies did not . instigate the proceedings against De Mey, and gave judgment for Gillies, with costs according to scale.