Law Report.

New Zealand Police Gazette, Volume XXVII, Issue 11, 20 May 1903, Page 130

Law Report.

The following decision is published for the general information of the Force :

(“New Zealand Law Reports,” Vol. xxii., pages 161-164.) Chong v. Cox and Another. Police Action against Notice of Action —“'the Police Force Act, 1886,” Section 16 Use of Handcuffs. The circumstances under which the handcuffing of a prisoner is justifiable considered. An action against constables for damages for alleged unreasonable use of handcuffs when arresting is an action for something done in the pursuance of “ The Police Force Act, 1886,” and the notice of action required by section 16 of that Act must be given.

This was a special case stated by the parties in an action in which the plaintiff, a Chinaman, who had been arrested with others in what was alleged to be a common gaminghouse, sought to recover damages from the defendants, the arresting constables, for alleged illegal use of handcuffs. The special case stated that on the sth of March, 1902, the defendants, acting under a warrant issued in pursuance of section 3 of “The Gaming and Lotteries Act, 1881,” and being accompanied by twelve other police officers, made a raid upon premises occupied by the plaintiff in Haining Street, Wellington, and there arrested the plaintiff and twenty-seven other Chinese, who were then in a room of the premises. The defendants, in the room, handcuffed the plaintiff and the twenty-seven other Chinese, and compelled them to walk from Haining Street through tbe streets of Wellington in a handcuffed condition to the police-station, where they were detained. The special case referred to the evidence given when the plaintiff and the others were charged before the Magistrate with offences under the Gaming and Lotteries Act, for the circumstances under which the arrests were made. This evidence did not show any attempt at resistance beyond the fact that when the police first entered the room there was a rush to get out, and that several of the Chinese grabbed at money which was lying on the table and tried to get away with it. They were, however, stopped, and the police secured the exits from the room. There was no evidence of any attempt to get away or avoid arrest on the part of the plaintiff. Nor was there any evidence of any resistance or of any attempt to get away on the part of any of the Chinese after the first entry of the police. It appeared, also, that the whole of the prisoners, and the plaintiff in particular, were individually known to the defendant Cox, who

was a member of the detective force, well acquainted with the Chinese in Wellington. The special case put two questions for the opinion of the Court, which are set out in the judgment.

Stout, C.J.: — Two questions are asked in this special case— (a) Whether in the circumstances stated handcuffing the plaintiff was justifiable ; ( b ) whether the absence of notice of action is a bar to the plaintiff proceeding in the action. (a.) The special case refers to the evidence given before the Magistrate ; but that evidence does not state clearly the facts of the case so far as handcuffing is concerned, and I do not think the Court is therefore in a position to answer the first question. There is really no law point involved in such a case; it all depends on the special circumstances of each individual case whether it is proper to handcuff an accused person or not. If a man is known—and it would appear this plaintiff was known —to the arresting constable, and could therefore be easily identified, then the constables had no right to handcuff the plaintiff charged with this offence unless they had reasonable grounds for suspecting he would attempt to escape, or that he would act violently. If there was anything in his conduct or temper to induce them to come to that belief, notwithstanding the charge was not a serious one, it may have been reasonably proper to handcuff him. The facts stated do not, as I have said, enable me to say whether the defendants had any ground for handcuffing or not. The use of the handcuff is not explained. If there is no explanation save what appears in the special case and the evidence given before the Magistrate, then I am of opinion the handcuffing of a man known to the arresting constable and easily identified was not justifiable. If a man is arrested for violence, robbery, mutder, or the like, then handcuffing is proper; so if there is anv ground for suspecting violence or escape it is also proper; and if the arrests of a band of unknown criminals by a few policemen be made, then also handcuffing is allowable. ( b .) The second question must be answered in the affirmative. It is plain the defendants were acting as policemen in pursuance of a warrant lawfully issued, and they are therefore entitled to the protection of “The Police Force Act, 1886,” section 16. The case of Downing v. Gapel (L.R. 2 C.P. 461) does not apply, as in that case there was no power to arrest. Selmes v. Judge (L.R. 6 Q.B. 724) is in the defendants’ favour. In Parkinson's case, the act done was not an act as a Justice : Royal Aquarium, &c., Society v. Parkinson ([1892] 1 Q.B. 431). The case Stewart v. Mills (Mac. (N.Z.) 155) is a direct authority for defendants, while Bryson v. Russell (14 Q.B.D. 720) only decides that the protection of notice in England to police does not extend to duties cast on the police subsequent to the statute providing for notice and as to certain special duties cast on them. Question No. 2 answered in favour of defendants.