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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Ballard and others [1813] NSWKR 7; [1813] NSWSupC 7

assaulting constable - aiding prisoner to escape - criminal procedure

Court of Criminal Jurisdiction
Bent J.A.., 27 May 1813
Source: Court of Criminal Jurisdiction Minutes, 1813-1815, State Records N.S.W, 5/1121

[11] William Seton Thomas late of Sydney gentleman, John Ballard late of Sydney gentleman and Thomas Woodford late of Sydney Marines appear at the bar of this court charged by an information in writing exhibited by the Judge Advocate, with assaulting one John Eyres a constable while in the execution of his duty and with forcibly securing and setting at large the said Thomas Woodford from and out of the custody of the said John Eyres at Sydney on the 16th March last past.

           On their arraignment the several prisoners plead not guilty.

           Thomas Clarkson sworn and examined for the prosecution saith I am a publican and live in Hunter Street, Sydney. The night before St Patrick's Day last at a few minutes past 9 o'clock, two boys, one of the name of Briggs the other named Haydon, came running into my house and said there were three people belonging to the Samarang had knocked off one of the stone balls on the pillars of the gateway of my house. I ran out into the street and saw three persons run away. Before I could overtake them they stopped at Robert's paling and pulled two palings off. They ran up Castlereagh Street and followed them calling out stop thief. I overtook Woodford the defendant in King Street. The other two run away, I could not overtake them. I gave Woodford in charge to John Russell a constable. I saw him part into the watch house and I returned home. Sometime after it might be as much as an hour after the three defendants went by my house with their bludgeons in their hands. Soon after Hester Stubbs came by and went to Robert's for some rum. Soon after that the three defendants came by my house again with three [12] bludgeons in their hands. Saw them. I said to Thomas I know you very well. I shall report your conduct in the morning. You go swaggering about the streets frightening every body but I am not frightened of you. I saw no more of them till after 12 o'clock. I was then in bed. My wife jumped up and told me they were knocking the other balls off. I got up, went down stairs and opened the door. Just as I opened the door the last ball was knocked off. It was moonlight. To the best of my knowledge I saw the defendant Thomas and four other persons running up Elizabeth Street. I called to Bingham a constable and one Berry to pursue them with me. We followed them but could not overtake them. The next day I went before Mr Wentworth and made my complaint. Hester Stubbs lives near me. The defendants were in the habits of going there.

Questioned by the defendants, says the two last balls are knocked down a few minutes after 12.

The witness withdraws.

           John Russell sworn and examined for the prosecution saith, I am a constable. I recollect the defendant Thomas Woodford being given in charge to me by Thomas Clarkson on the night before St Patrick's Day last. Mr Clarkson told me he had knocked off some balls or ornaments off his premises. When I received the charge with Woodford he was in the custody of Hanks a constable and when I came up Clarkson gave him in charge to me. It was about 9 o'clock as near as possible. I gave him in charge of Eyres, a constable at the Pitt Street watch house that night. Eyres received him from me and I left him in the watch house. It is the duty of the constables when they receive persons on any charge at the watch house to take them next morning before the Police Magistrate. I delivered the charge [13] to Eyres as Clarkson delivered it to me. After leaving Woodford in the watch house I went away.

           Questioned by the defendants saith I am well acquainted with Eyres the constable. I have known him a number of years. He appeared to me perfectly sober at that time. I think he was. I have not the smallest doubt of it. I believe he was lame. He had either a crutch or a stick. I believe that was in consequence of his having received some hurt.

           John Eyres sworn and examined for the prosecution saith, I am a constable. I was on duty at the Pitt Street watch house on the night before St Patrick's Day last. I received on that night the defendant Thomas Woodford in charge from James Hanks a constable. John Russell was present a few minutes after. James Hanks brought the defendant Woodford to the watch house to me. I asked him what charge. He said Thomas Clarkson had given him to him in charge to be taken to the watch house, and that he would find charge against him that morning. Russell came in a little while after to the watch house and opened the door and looked at him and told me to keep him safe there. This was about 9 o'clock as near as I can guess. The defendant Woodford continued in my charge. A little after 10 o'clock the defendant Mr Ballard and Mr Thomas came to the watch house. Mr Ballard knocked at the door. I hardly was able to come to the door. I came as well as I was able. He asked me whether there was a man or a boy belonging to the Samarang there. He asked me to open the door. I did. The defendants Ballard and Thomas came in. There were three men there but they did not come in. Woodford was at this time locked up in another room. Mr Ballard asked me if he could see the boy. I told him he could. With [14] that I opened the door and let the boy out to him. With that he asked the boy, [Ionian] Woodford, who put him in here. The boy could not tell him. Sir, says I, I'll tell you who put him in here. Who says he. Thomas Clarkson says I, for being in company with two more people, throwing stones and throwing down and breaking his balls. That's more than the Governor could do to put a man belonging to the same ship in such a watch house as this. With that he put a stick behind the boy's back and ordered him out of the watch house. The boy went out down the street down Pitt Street. I did not say anything to Mr Ballard. I was very glad to get off without saying anything, being disabled in my limb. I did not make any resistance whatever. The reason was because I was not able to stand, being in such pain in my foot. I would have made a little only for that. Mr Ballard lifted up his stick which he had in his hand, and I thought he was going to make a blow at me. I made sure of it, but Mr Thomas put his hand back to the stick and said I was doing nothing more than my duty. They then went away straight down street. I sent to the district constable to report it to him. He came to the watch house a few minutes after they had been gone and I reported it to him as soon as ever I saw him. I could not help Woodford's escaping, as I was so lame I could not stand by my own part. I was alarmed by the gentlemen coming to the door and coming in and taking him. If I had been able to have kept him I would have losed my life rather than have parted with him. But I was not able to move from my fire place to the door without a crutch. I never got the prisoner again that night. It is usual of mine in the morning for the district constables to come to the watch houses and take those in charge there before the Superintendent of Police.

Questioned by the defendants, saith I do know the nature of the oath which I have taken. I have been ordered by my clergy since I have been christened not to bear [15] false witness against my neighbour and sure I never did. I have been going on 16 years in this country and never a day or night out of government service. I am a Roman Catholic. I sent the first constable that came round to John Wheeler the district constable to tell him the prisoner was taken away. It was not above 15 minutes after they left the watch house that sent for Mr Wheeler and he came immediately. Did not make any noise on the defendants leaving the watch house for I was very glad they were gone. The defendants walked away. I did not hear the defendants make use of any ill language on their leaving the watch house. I was not threatened by a man but the defendant Ballard and I considered that threatening to raise your stick. I swore the same before the Police Magistrate as I do now as near as I can guess. To the best of my knowledge I have not omitted any thing now that I told them.

           Question by the court. It is not customary for a night constable to receive a prisoner without a charge but I got a charge with him. I got it from John Hanks the constable. He told me that Clarkson would be answerable for the charge in the morning. This district constable keeps a book in which he enters the charge in the morning which he receives from the night constable. The reason why I did any duty at all was because the constables were much harassed by the duty of the criminal court. I opened the room where Woodford was confined to oblige the gentlemen.

           The case for the prosecution closed.

           The defendants being called upon for their defence the defendant Ballard states to the court that he took the defendant Woodford out of the custody of Eyres there being no charge against him. That he did not strike or lift up his stick at him at all. That he left his name and told the constable that if there was any charge against [16] Woodford, he could be found in the morning on board the Samarang.

           The other defendants deny the charge.

           William Lease esq. sworn and examined for the defendants. I am Commander of the H.M.S. Samarang.

           Question from the defendant Thomas. What passed between you and Governor Macquarie on this subject?

           The court overrule this question. The witness withdraw.

           The court having had mature deliberation and having fully understood the evidence adduced on behalf of the prosecution and what the prisoners had to say in their defence, doth adjudge that the said William Seton Thomas, John Ballard, and Thomas Woodford are not nor is either of them guilty of the misdemeanour wherewith they stand charged.

Published by the Division of Law, Macquarie University