Miscellaneous Information.

New Zealand Police Gazette, Volume XXI, Issue 18, 1 September 1897, Page 158

Miscellaneous Information.

Resignation.

Constable Michael McAllen, No. 511

Discharge oti Compensation. Constable Thomas Potter Lister, No. 323

Rewards

Constable A. E. Remer, No. 372, Clinton police, has been awarded 10s. by the Customs Department for services in securing the conviction of E. Williams for a breach of the Beer Duty Act. (97/94.) Constable J. P. Miller, No. 739, Auckland police, has been awarded £8 for arresting Waiter Cook, a deserter from H.M.S. “Royalist.” (97/971.) Constable Patrick Gough, No. 509, Waimate police, has been awarded £7 by the Waitaki and Waimate Acclimatisation Society for obtaining convictions under the Animals Protection Act against poachers. (97/94.) Constable W. H. Barrett, No. 43G, Temuka police, has been awarded £5 by the South Canterbury Acclimatisation Society for obtaining a conviction for trout-poaching. (97/94.)

The following decision of his Honour Mr. District Judge Kettle is published for general information :

Ross v. Wilson and Cox. Search without a Warrant—Limitation of Action

On the sth May, 1895, the plaintiff resided with her husband and children in a house on the “ Otauto Farm,” near Patea. Mr. Hutchison, the owner of the property, had given her permission to occupy the house. Some time prior to this date the manager of the farm had missed a number of sheep, and had reported the matter to the chief officer of police (Constable Carr) at Patea. Goods had also been stolen from a draper’s shop in Patea about this time; and on the 4th May the defendant Cox, a detective stationed at Wellington, came to Patea to inquire into the case, and endeavour to discover the culprit. On the evening of the 4th May, Constable Carr instructed the defendant Wilson, a constable stationed at Patea, to proceed to the Otauto Farm to see if he could find any traces of the missing sheep. Constable Carr also informed the defendant Cox that the plaintiff’s husband had made a statement to him to the effect that if he was employed, or if it was made worth his while, he Ross) could “ lay the nolice on ” to the persou who broke into the draper’s shop at Patea and stole his goods. On the following morning (sth May), the defendants went together to the Otauto Farm, and on their way out they met Ross riding into Patea. On their arrival at the farm they spoke to and obtained some information from some men who were working about the sheepyards there, and the defendants then proceeded to search a gully, just behind the plaintiff’s house, for traces of the missing sheep. When they reached the head of the gully they came in sight of and were close to the plaintiff’s house, and after consultation they resolved to go to the house and endeavour to obtain admission for the purpose of searching for sheepskins, &c. They knocked at the back door, and on the plaintiff opening it the defendant Cox told her who he and defendant Wilson were, and informed her of the object of their visit. He said that a number of sheep were missing from the farm, and they (Wilson and he) would like to search the house for sheepskins and sheep’s flesh. I may mention here that the defendants had not obtained a search-warrant. They admitted that when they went to the plaintiff’s house they had no reason to believe that the plaintiff or her husband had stolen any sheep or goods, and that they had no evidence upon which they could have applied to a Justice of the Peace for a search-warrant under the Justices of the Peace Act or Criminal Code Act. They also admitted that they did not disclose to the plaintiff that they had no warrant to search, nor did they tell her that they had no legal right to search her house against her will. The plaintiff was naturally surprised and indignant, but, no doubt believing that the defendants were acting under the authority of law, and that she had no right to resist, she allowed them to enter her house and search. The defendants made a thorough but fruitless search for sheep skins and flesh ; and the defendant Cox, without informing the plaintiff or obtaining her consent, took advantage of the occasion to search through all the clothing in her chest of drawers and boxes, &c., to see if he could find any garments which might connect the plaintiff’s husband with the alleged burglary at Patea. His search was fruitless. Having completed their search the defendants left the house and returned to Patea. The plaintiff commenced this action on 16th June last. She alleges that the defendants were trespassers on sth May, 1895, and she claims to recover damages from them. The defendants have set up two defences. They contend (Ist) that they entered and searched the plaintiff’s house by her “ leave and license ” ; and (2nd) that, this

action having been commenced more than four months after the date of the alleged trespass, and no notice of action having been given as required by section 16 of “ The Police Force Act, 1886,” they cannot now be sued. With regard to the first ground of defence, I intimated at the hearing that I did not think the plea of “leave and license” had been established. lam still of the same opinion. It is true that the plaintiff, after expressing her surprise and indignation, offered no active opposition to the defendants’ proceedings. She believed that as police officers they were only doing their duty and were acting within their legal rights, and that any resistance or remonstrance would therefore be useless. The defendants admit that when they were leaving the house the plaintiff said to them, “ I don’t blame you men for this ” ; showing that, although she did not find fault with them for doing what she evidently thought was their duty, she resented their official visit, and was not a consenting party to the search which had been made. The onus of proving this defence rests on the defendants, and they have failed to satisfy me that they searched the plaintiff’s house “with her leave and license.” The only remaining ground of defence is base! on section 16 of “The Police Force Act, 1886,” which provides that “ for the protection of persons acting in the execution of this Act all actions and prosecutions to be commenced against any person for anything done in pursuance of this Act shall be commenced within four months of the act committed, and not otherwise, and notice in writing of such action and of the cause thereof shall be given to the defendant one month at least before the commencement of the action.” In Griffith v. Taylor (L.R. 2 C.P.D., at page 200), Cockburn, C.J., says, “ According to the latest authorities on the subject of notice of action for anything done in pursuance of a statute, the law is that in order to entitle a party to notice he must have acted under the bond fide belief in the existence of circumstances which if they had really existed would have amounted to a justification.” See also Stroud’s Judicial Dictionary, title “ Pursuance,” page 638, where a number of the authorities are collected ; and also Peddle v. Stevens (2 N.Z. L.R. S.G., 139). I am of opinion that on this plea also the plaintiff is entitled to judgment. It is, as I have stated, admitted that there was no search-warrant, and the defendants also admitted that they were not in a position to bring before a Justice of the Peace evidence upon oath which would have justified him in issuing a search-warrant (see section 208, “Justices of the Peace Act, 1882,” and section 341, “Criminal Code Act, 1893 ”). Moreover, in doing what they did the defendants were not “acting in pursuance of the Act” they purported to act under, and in pursuance of the leave and license which they alleged they had obtained from the plaintiff. Be this as it may, I am of opinion that the defendants have not established that they acted, to use the words of Cockburn, C.J., “ under the bond fide belief in the existence of circumstances which if they had really existed would have amounted to a justification.” I do not think they really believed, nor do I think they would, under the circumstances, have been justified in believing, that they were entitled to enter the plaintiff’s house for the purpose of searching. For these reasons judgment must go for the plaintiff. I assess the damages at £25, for which judgment will be entered with costs. (97/940.)