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

R. v. McMahon [1821] NSWKR 4; [1821] NSWSupC 4

assault, criminal procedure, Van Diemen's Land

Court of Criminal Jurisdiction

Wylde J.A., 26 January 1821(Hobart session)

Source: Sydney Gazette, 3 March 1821

Matthew McMahon, a free man, was indicted for an assault and battery on the Chief Constable of Hobart Town, in the execution of his duties; and being found guilty on very clear testimony, was sentenced to six months imprisonment, to pay a fine of £20 to our Lord the King, and enter into sureties for his good behaviour for 2 years, himself in ¿50 and to sureties in ¿25 each.

            The defendant, during the trial, and on the defence rested upon the point of the Chief Constable not having had on the occasion any warrant, which alone, he contended, could authorise his arrest; and that the order therefore of the Magistrate could not warrant his apprehension.

            Previously to, and on passing sentence, the Learned Judge (Wylde) entered very fully into the legal principles and decisions relative to this matter of defence; and laid it down as perfectly well settled, that a constable was so far charged with the preservation of the public peace, as to be authorised to arrest any person in the actual breach of it, and to keep him in custody until he could conveniently be brought before a Magistrate. That in the present case, however, the Constable had not acted his own mere authority, but under the verbal order of a Magistrate, to whom a complaint had been made against the defendant by a third person, for the disturbance and a breach of the peace, which was continued for some time after the constable had used his endeavours to prevail on him to come away. That it was for the Court only to consider whether they were satisfied upon the proof, that the defendant was making a common disturbance at a place, the Public Hospital, where it was more than ordinarily important that peace and quietness should be preserved; and whether the constable had done more than necessary for the removal of the defendant, who resisted all persuasions quietly to submit to his authority and orders. It was too for the Court to observe, that this was not the case of an action for damages in consequence of an illegal arrest; but the question was whether the Chief Constable, in the execution of his duty, and doing only his duty, was to be violently knocked down and ill treated, when acting under the influence of great personal forbearance. If the evidence was believed, there could be no doubt of the defendant having committed a breach of the peace.

            The case in a public sense was not unimportant, as involving no less a question than whether the Chief Constable of such a place as this, was to be protected against personal injury and violence in the performance of his public duty to preserve the peace, or whether that peace was to be violated under excuse of inebriety and pretension to that freedom, as it was falsely called, which presumed that no apprehension could be legal without formal warrant under the hand and seal of a Magistrate.

Published by the Division of Law, Macquarie University