Malicious Prosecution Alleged

Manawatu Times, Volume 63, Issue 175, 27 July 1938, Page 6

Malicious Prosecution Alleged

UNUSUAL SUPREME COURT ACTION Alleging that criminal proceedings had been set in motion against him maliciously, a presser named Alfred Dell Reuben Little, of Palmerston North, sought £250 damages in the Supreme Court yesterday from Spero Andrews, fish merchant, of Palmerston North, and his sister Toula Andrews. The case was an unusual one. The statement of claim set out that on February 2 and 3 of this year, plaintiff was tried in the Supremo Court charged that, being the servant of the Cooee Tailoring and Dry Cleaning Company, he fraudulently omitted to account for a cheque for £3 recer id from Spero Andrews on terms requiring him to account for it to the company and thereby committed theft. At the trial defendaitis were witnesses and each alleged that tho cheque had been handed to Little by Spero Andrews. After hearing the evidence the jury returned a verdict of not guilty and plaintiff was acquitted. Little alleged that the defendants (or either of them) maliciously aud without any reasonable or probable cause, induced tho prosecution against him. Special damages were also claimed to the amount of £l7 Bs, legal expenses incurred at the trial. Mr. Graham Crossley appeared for plaintiff and Mr. H. R. Cooper for defendants.

The jury chosen to decide the facts consisted of Messrs B. L. Corrv (foreman), K. L. Beals, I*. W. Franke and R. Foster.

The Hon. Mr. Justice Quilliam presided.

Mr. Crossley outlined plaintiff’s case, stating that Spero Andrews decided one day to purchase a pair of trousers from the Cooee Company. After the trousers were delivered, Little was sent for payment. He made several calls and on one of them just before last Christmas, Spero Andrews wrote out a cheque but as it had to be countersigned by his father, Spero promised to send it along to the shop. When the case against Little came before the Court both Spero Andrews and his sister declared that they had given plaintiff the cheque, Little promising to send a receipt. The cheque that had been made out was subsequently cashed at the C. M. Ross Company by a woman whom the assistant knew by sight but did not by name. That was the main evidence put before the jury when Little was tried and after a retirement of ten minutes, the jury brought in a verdict of not guilty. Since then, however, the woman who had cashed the cheque at Ross’s had been found and her evidence would reveal that the father of defendants had handed it to her as payment for rent.

Plaintiff gave evidence as to his calling on Spero Andrews for payment for the trousers and the filling in of cheque by Spero ready for Mr. Andrews, senr., to sign. It had not been given to him then nor at any subsequent date though Spero Andrews had affirmed that he could remember folding the cheque and handing it across the counter to witness.

Police Inspector J. Cummings produced the cheque and butt which was an exhibit in the trial of Little. The cheque was made out in favour of “cash” and while the cheque butts showed that there w r ere quite a number of cheques drawn about the same date, there was no other one for £B. It was not till May that the police traced the woman who cashed the cheque at Ross’s Accused had been acquitted in February. It was at witness’s direction that the prosecution was taken. Mrs. Mamas Frances Hayward, of Palmerston North, said Andrews, senr., was a tenant of hers and the rent was £3 every fourth week. Just before last Christmas she called at the snop for a cheque. Andrews handed her one for £3 and she cashed it at Ross’s. Arrangements were made for the cheque .to be left “open” so that she could cash it straight away. She bought Christmas cards.

Una Doris Miles, employed by the C. M. Ross Company, recalled accepting a cheque for £3 from Mrs. Hayward in payment for Christmas cards bought. When Little was ou trial she only

knew Mrs. Hayward by sight and so had been unable to identify her for that occasion. Neil McAffer, manager of the Cooee Company, stated that when Andrews called to claim that he had paid the account, he had in his hand the cheque for £3 which had been cashed at Ross’s. Later witness had his solicitor issue a summons for the amount and it was paid but that was after Little was tried. This concluded plaintiff’s case. Mr. Cooper submitted that there was no case to answer. The first and most important matter was for plaintiff to prove that the proceedings against Little had been instituted by defendants. His Honour: Instituted or instigated! Mr. Cooper: Both. The only evidence is that the Inspector of Police directed the prosecution. His Honour: On the complaint of defendants. Mr. Cooper: The Inspector had a statement from Andrews, senr., and he then made inquiries of tho two defendants who gave statements. If they were given in answer to questions by the police, that could not be said to be instigating the prosecution. It was not the defendants who went first to the police—there was no evidence they went to the police at all. His Honour: Supposing they did not actually start the proceedings but continued them' after the innocence of plaintiff had been discovered? Mr. Cooper: That is not instigating the prosecution. They did not put the law in motion. xYll we know of this

case is that after getting statements from Andrews, senr., the two defendants and Little and after due consideration of the circumstances, the Inspector of Police directed the prosecution. Mr. Crossley said, in reply, that the statement of Andrews, senr., could have only been given on hearsay. The whole conduct of defendants before and after had to be looked at. The mere setting of the law in motion was not the criterium. If anyone assisted the police to send a person for trial by giving false information, he could not escape liability because the prosecution was not technically commenced by him. In the present case both defendants had sworn at the trial that the cheque had been handed to Little in their presence. His Honour agreed with Mr. Crossley’s contention tliat there was sufficient evidence before the Court to suggest that defendants had instigated the prosecution. He asked Mr. Cooper to proceed. Mr. Cooper intimated that he did not propose to call evidence. Counsel then addressed the jury on tho following issues:—(1) Has it been proved that the defendants commenced the prosecution of plaintiff? (2) If so, has it been proved that defendants commenced the prosecution without any honest belief that tne plaintiff was guilty of the theft of the cheque? (3) Before commencing or proceeding with the prosecution did defendants take proper care to inform themselves of the true facts? (4) Has it been proved that defendants, in commencing and proceeding with the prosecution, were actuated by other motives than the desire to bring to justice one they honestly believed to be guilty? (5) Did the

proceedings at the trial of plaintiff terminate in his favour? Tho jury answered the questions as follow:—No. 1, yes; No. 2, yes; No. 3, no; No. 5, yes. On No. 4 question three of the four jurymen answered yes and one no. Tho damages awarded were £4O with special damages £l7 Bs. Mr. Crossley moved for judgment but Mr. Cooper asked leave to move for a new trial, his Honour granting the application.