LAW REPORT.

New Zealand Police Gazette, Volume XXXVI, Issue 11, 22 March 1911, Page 122

LAW REPORT.

(“ Times Law Reports,” Vol. xxvii, page 132.)

[S.B. Div. (Lord Alverstone, C.J., Pickford and Avory, JJ.) — Bth December, 1910.] Rose v. Kempthorne.

Criminal Law—Assault — Process-server putting Document inside Coat of Person served Offences against the Person Act, 1861 (24 and 25 Viet., c. 100), s. 42. The respondent, who was the defendant in a County Court action, was met in the street by the appellant, who, acting on behalf of the solicitor to the plaintiff in the action, tendered to the respondent an order for discovery which had been made in the action. The respondent declined to accept the document, whereupon the appellant thrust it into the inner fold of the respondent’s coat, which was unbuttoned at the time, and as the respondent opened his coat the document fell on to the street, where he left

it. On an information preferred by the respondent against the appellant for assault in so touching him, the Justices were of opinion that the order of the County Court would have been effectually served by the appellant drawing the respondent’s attention to the document and by dropping it on to the street in his presence upon his declining to accept it. and that the appellant was not justified in laying hands upon him. They accordingly convicted the appellant.

Held, That the appellant was entitled to serve the document on the respondent personally, and that as there was no evidence that the appellant touched the respondent further than was necessary to bring the document home to him, the Justices were wrong in convicting the appellant. This was a case stated by the Justices for the Borough of Harwich.

An information was preferred by A. E. Kempthorne, physician and surgeon (hereinafter called the respondent), under 24 and 25 Viot., c. 100, s. 42, against F. J. Rose (hereinafter called the appellant), for that the appellant on the 18th May, 1910, did unlawfully assault and be it him, the respondent. At the hearing the following facts were proved : (a.) That the respondent was, on the 18th May, 1910, the defendant in an action in the County Court of Harwich, in which action an order for discovery of documents had been made against him. ( b .) That the respondent was proceeding along Church Street, Harwich, to the Great Eastern Railway-station to catch the 12.30 p.m. train when he was overtaken by the appellant, who, acting on behalf of the solicitor to the plaintiff in the said County Court action, said to him, “ Wait a minute, doctor; I have something for you,” at the same time tendering him the said order for discovery, which the respondent declined to accept, sayiDg, “ You know perfectly well who is representing me in the County Court. I refuse to accept and peruse documents in the public street.” (c.) The appellant thereupon thrust the document into the inner fold of the respondent’s coat, which was unbuttoned at the time, and the respondent opened his coat, causing the document to fall into the gutter in the street, where it remained until taken to the police-station. On the part of the appellant it was contended that as the County Court rules provided that the order for discovery above-mentioned should be served personally, the appellant had not committed an assault by merely opening the respondent’s coat, without any violence, and endeavouring to place the order for discovery in his breast-pocket, and it was further contended that the appellant was acting within the law in serving the said process in such a manner, and was justified in the oourse he took. On the part of the respondent it was contended that service of the order could have been equally well effected by the appellant without the necessity of touching the clothing or person of the respondent, and that an assault had been committed.

The Justices decided that the contention of th 9 respondent was right, and that an assault had been committed by the appellant upon the respondent, inasmuch as the appellant had unnecessarily and against the will of the respondent touched him in a manner likely to cause a breach of the peace. They were further of opinion that the order of the County Court would have been effectually served by the appellant’s drawing the attention of the respondent to the document and by dropping it into the street in his presence upon his declining to accept it, but that the respondent’s person was sacred, and that the appellant was not justified in laying hands upon him. They accordingly convicted the appellant of the offence charged, and fined him Is., with 10s. oosts.

The question for the opinion of the Court was whether the Justices, upon the above statement of facts, came to a correct determination in point of law. Mr. Frank Phillips, for the appellant, contended that the conviction was wrong. Under the County Court Rules there was a right to serve the respondent personally, and nothing was done by the appellant beyond what was necessary to bring the document home to the respondent. It had been decided that a process-server was entitled, in certain circumstances, to lay hands on the man whom he had to serve —see Harrison v. Hodgson (10 B. & C., 445). The Justices seem to have thought that throwing the document down in front of the respondent would have been good service. That was not so —see Heath v. White (2 Dowl. & L., 40). Mr. Gerald Dodson, for the respondent, said it had to be remembered that solicitors were acting for both sides in the County Court action ; the appellant knew this, and ought to have served the document on the respondent’s solicitor The appellant’s action in attempting to put the documen into the respondent’s coat was unnecessary, and would b likely to cause a breach of the peaoe. The Justices regarded

the assault as merely a technical one, and only intended to make an order that the appellant should pay the costs ; but the appellant preferred to be fined in order that he might take the opinion of the Court on the point. He cited Thompson v. Pheuey (1 Dowl., 441). The Lord Chief Justice, in giving judgment, said that this was a very trumpery case, and he could not help regretting that the Magistrates had not dismissed the information. The Justices wished to make an order merely that the appellant should pay the costs, but they could only do that if they made an order against him, and his Lordship could well understand that the appellant objected to any such order. The Magistrates convicted the appellant, and the Court had to consider whether there was any evidence justifying that conviction. If the only judgment of the Magistrates had been that the amount of touching was unnecessary, and that it amounted to an assault, the Court would have been in a difficulty; but in His Lordship’s opinion that was not the way the Magistrates dealt with the case. The Magistrates considered that breause there was an alternative mode of service the touching of the respondent was unnecessary. They had established a test which was not a right one. In some circumstances it might be that dropping a writ or order in the presence of a person would be good service ; in other circumstances it might not; but where a person refused to peruse the document, and thus left it open for him to say that he did not know what it was, there was ground for the argument that the service might not be good. In this case, as the appellant had before him the respondent, whom he was entitled to serve personally, and who would not receive the document, it seemed to His Lordship that the touching the respondent was not unnecessary. There was no evidence that the appellant touched the respondent further than was necessary to bring the document home to him ; it was equivalent to doing that which Mr. Dodson admitted would be good—namely, placing the document on the respondent’s shoulder. As the Magistrates had convicted the appellant because they thought the respondent need not have been touched at all, they proceeded upon a wrong ground. The appeal would be allowed, and the conviction quashed. Mr. Justice Pickford and Mr. Justice Avory agreed. [Solicitors —Morris and Bristow, agents for F. P. Sutthery, Chelmsford ; Arthur Wrinch, agent for Leighton and Pre ty, Ipswich.]