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

Polack v Josephson [1825] NSWSupC 35

felony attaint - ticket of leave - malicious prosecution - case and trespass

Supreme Court of New South Wales

Forbes C.J., 11 August 1825

Source: Sydney Gazette, 18 August 1825


This was a special action on the case, brought by the plaintiff for a malicious prosecution; damages laid at £200.[1 ]

It appeared in evidence, that a robbery was committed in the house of Mr. Jacob Josephson the defendant, some time in December last; that from some impression on his mind, he offered to swear, before the then Superintendent of Police, that the plaintiff was in possession of part of the stolen property, in consequence of which the chief constable, accompanied by the defendant, proceeded to the house of the plaintiff, and after making a search amongst his goods, he pitched upon some metal tea-spoons, a miniature picture, and 12 pairs of gloves, which he claimed as his, and the chief constable thereupon took the plaintiff into custody.  This occurred on Saturday evening; and on the way to the house of the Sitting Magistrate, John Thomas Campbell, Esq the chief constable observed, that if the defendant persisted in his charge, the plaintiff would have to remain in the watch-house all the following day (Sunday), upon which the defendant replied, ``that he had no wish to confine the young man," and accordingly he was discharged by Mr. Campbell, on his own recognizance, to appear on the following Monday; when the parties having appeared at the Police Office, and the Magistrate about to take the depositions, the defendant declined swearing to the property, and the plaintiff was discharged.  The present action was brought to obtain compensation for the injury the plaintiff's character had sustained, in consequence of the above charge, which could not be sustained, and which he alleged was preferred from a malicious motive.  The Jury found a verdict for plaintiff, of 40s. damages, with costs.[2 ]



[1 ] See R. v. Polack, February 1825.  See also Australian, 6 October 1825.

[2 ] The most important issue in this case, according to the Sydney Gazette, 18 August 1825, was that Forbes C.J. allowed a man to sue even though he was attainted and only a ticket of leave.  The Gazette took this as an opportunity to call for reform in the ticket of leave system, which operated too much on the discretion of masters and magistrates, and showed too little concern for industrious ticket holders.  On attaint in New South Wales, see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 2.  For other attaint cases in 1825, see Hart v. Rowley, October 1825; R. v. Dwyer, Kinnearm Madden and Blewit, March 1825. See also Campbell v. Hart, 2 August 1825 (Sydney Gazette, 4 August 1825) in which leave was granted to proceed in action at law against a prisoner of the crown convicted of felony.

Josephson's enmity towards Polack also led him to give information to the constables, which caused him to be taken into custody despite his ticket of leave, without a warrant from the magistrates.  According to the Sydney Gazette, 7 November 1825, Forbes C.J. said ``I do not give any opinion on the legality of such a proceeding; I merely state that it is quite familiarly spoken of as the general practice in such cases, that where the party is a prisoner, he is taken up without any ceremony, or any authority, by the mere will of the constable; while, on the contrary, if he is a free man, then he is treated a little more politely by obtaining a warrant for his apprehension."

Wentworth subsequently moved to have the judgment in Polack v. Josephson set aside because the action should have been for trespass rather than on the case: Sydney Gazette, 6 October 1825.  The application failed, and the judgment stood undisturbed: Sydney Gazette, 24 October 1825.  No reason for this subsequent decision was recorded.

Published by the Division of Law, Macquarie University