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

England v McQuoid and Murray [1831] NSWSupC 27

transportation - assault - false imprisonment - convict escape - habeas corpus - convict, proof of conviction - Bushranging Act - Western Australia - Darling, Governor, attitude to Crown law officers

Supreme Court of New South Wales

Dowling J., 22 March 1831

Source: Australian, 25 March 1831

TUESDAY, 22 March.  England v. McQuoid and Murray.[1 ]  Before Mr. Justice Dowling and the following Special Jury:-

A. B. SparkeJ. B. Montefiore,

R. W. Leane,R. Campbell, jun.

G. C. Curlewis,G. T. Palmer,

James Farmer,J. Macdougall,

Samuel Terry,J. Gardener,

John King,William Lawson, Esqrs.

This was action of trespass for assault and false imprisonment, plea, the general issue.  The damages were laid at £500.  Messrs. Foster and Rowe appeared for the plaintiff; Dr. Wardell and Mr. Therry for the defendants; Attorney, Mr. Chambers.

It appeared in evidence, that the plaintiff having originally reached Van Diemen's Land per Malabar for an unproved term of years, served under Government for some time in the capacity of overseer of limeburners, after which he passed as a free man, and took a valuable farm up the country on lease; but subsequently proceeding to Swan River settlement, was after some time apprehended by the Authorities there, and on a charge of being a runaway prisoner from Van Diemen's Land, with two other men, Mackey and Coombs, was sent on board his Majesty's ship Comet, Captain Sandilands, who brought them to Sydney, with a letter from Captain Stirling to Governor Darling, to this effect - that being dangerous characters, he thought it prudent to send them out of the country, but on reaching Sydney, if they turned out to be free men, he trusted the necessity of the case would excuse their forcible transmission.  England, under the assumed name of David Gorbit, was given in custody to the Master Attendant, who handed him over to the Sheriff, who sent him on board the Hulk, whence he was occasionally transmitted for examination before the High Court of Magistracy in Hyde Park Barracks, remanded, manacled, fed as a felon, released by habeas corpus by the Supreme Court again taken into custody, and again released.  It was endeavoured to be proved that plaintiff was not a free man - that by his change of name and other suspicious circumstances fully justified the Sheriff in detaining him on suspicion, and that the Jury were themselves interested in supporting the Sheriff and Superintendent of Convicts, in their acts, as they valued the security of the tenure by which they held the services of their respective convict servants.

Witnesses being called for the defence, Counsel for the plaintiff rejoined and it was nearly 7 p. m. before the learned Judge could commence summing up, or putting the case to the Jury, which he did, by giving it as his opinion, that the case being a simple case of trespass for assault and false imprisonment, and the defendants having failed in their plea of justification, inasmuch as the burden lay upon them to prove, that he was not a free man; and, though he had been a prisoner from Van Diemen's Land, yet no New South Wales Magistrate could exercise a summary jurisdiction over him, -- the law of England, with respect to liberty of person having the fullest latitude in this Colony unless where clearly, fairly, and legitimately contracted by an express local ordinance; the local Act with regard to bushrangers up the country, having no applicability to the case in point.  Therefore the plaintiffs being entitled to their verdict the next consideration was the amount of damages, and here it was that the motives upon which the defendants might be construed to have acted, ought to avail them in extenuation of damages.  [The learned Judge refrained this time from reading over his voluminous notes of the evidence, contenting himself with putting the case on its merits, in a brief and compendious form.]

After an absence of about nine minutes, the Jury brought in a verdict for the plaintiff - damages, £20.

Dowling J., 22 March 1831

Source: Sydney Gazette, 26 March 1831[2 ]

The learned Judge commenced summing up the case to the jury at a very late hour in the evening.  His Honor said that, at the outset, he felt it his duty to state, it having been intimated in the course of the trial that several of the gentlemen composing the jury, in the present case, had also sat on the trial of the other causes which had been alluded to, that they were to dismiss from their minds all recollection of the former cases, and to try this case exclusively on its own intrinsic merits, to be collected from the evidence laid before them.  Neither were they to suffer their minds to be biassed by the verdicts given by former juries in the mother country, in the cases cited by the learned Counsel for the plaintiff; because they could not be aware of the circumstances under which those verdicts were given.  In the present action, the greater portion of the defence consisted in the alleged bona fides of the defendants; but it was His Honor's duty here to point out to the notice of the jury the distinction between actions for trespass, and actions on the case, and in that distinction he fully went along with the learned Counsel, who last addressed them.  An action of trespass stood upon the naked fact of an illegal act having been committed without a probable motive; but, in an action on the case, the gist of the offence consisted in a party having abused a process of law from a malicious and corrupt motive.  This was an action of trespass for an unlawful act committed upon the plaintiff, without any just cause or motive, to which the defendants had pleaded not guilty.  In disposing of the case, there were certain principles by which the Court must be guided.  Although in New South Wales, His Honor must consider this as a British Colony, and that whenever any man claimed his freedom, or was wrongfully oppressed, he was as much entitled to protection and redress in that Court, as in Westminster Hall.  Another general principle was, that by presumption of law, every man, even in this country, is supposed to be free, until the contrary be proved; with one special exception in that local ordinance, passed for special purposes, but which the Court had already declared its opinion did not refer to a case like the present.  It had been suggested that Mr. Hely acted under this law, and it was conceded that he was a Justice of the Peace.  But the local ordinance, under which he claimed to act, had reference solely to this Colony, and not to prisoners found at large from other Colonies.  But, assuming that Mr. Hely had jurisdiction over a runaway from Van Diemen's Land, the committal of these men was clearly informal.  What was the offence charged upon the face of the warrant?  ``Suspicion of being runaways from Van Diemen's Land; - punishment, ``committed to the custody of the Sheriff, for the disposal of His Excellency the Governor."  There was nothing whatever in such a document which could authorise the detention of those persons.  The present action was brought by a free British subject, against the Sherrif, for a deprivation of his liberty.  The question for the jury was, whether he was the person he represented himself to be, and whether he had been so deprived.  At the same time, it was His Honor's duty to inform them, that every intendment should be made in favour of a public officer, who acted bona fide, and had not abused or extended his jurisdiction from base or unworthy motives.  This, however, was an action of trespass, and the party to defend it must show a legal warrant for what he did.  True, it had been shown that a certain practice existed in the Colony, which had only been followed in the present case.  Be it so; but if a Magistrate did run the risk of detaining persons under such circumstances, and it should turn out that they were not the parties they were supposed to be, he would be held answerable for his acts.  In this case, His Honor felt himself bound to say, that the detention of these men had not been legally justified; it had not been made out that they were convicts, and the warrant under which they were detained was not legal.  Every intendment should be made in favour of the liberty of the subject; here it had not been made out that the plaintiff was a runaway convict; and if not, the Magistrate had no power to act as he did, and the plaintiff was entitled to a verdict.  But then came the important question as to the amount of damages.  The jury would have to bear in mind who the defendants were, and not to mix up their cases with those of Captains Stirling and Sandilands.  They should also recollect, as far as the merits went, that the plaintiff was brought to this colony in irons, apparently as a prisoner, under some accusation, in a King's ship; - that they were delivered over to the Master Attendant of the Dock-yard, and that he, in the common course of things, delivered them into the custody of the Superintendent of the hulk; that they were received on board the hulk in irons, which they were taken off, and replaced by the ordinary irons of the ship;- that they underwent no unusual hardship, no extra visitation of severity, but were, in every respect, treated like all other persons received on board under similar circumstances - that is, under suspicion of being runaway prisoners of the Crown.  Due and prompt measures seemed to have been taken to ascertain whether they were free or not; and the question then for the jury, in estimating the amount of damages, was, whether five or six days was necessary to the detention of these parties, in order to institute an investigation into all the circumstances of the case?  Then, though the plaintiff were a free man, no doubt, having reference to the peculiar circumstances of the colony, every allowance ought to be made for public officers like the Sheriff and Magistrates of the colony, in the discharge of their public duty.  It was notoriously in a place of penal discipline for felons; escapes were frequently made from one colony to another; and if men were brought here on suspicion of being runaway convicts, he did not think that we should criticise the conduct of public officers too narrowly, when they appeared to have reasonable grounds for enquiry.  The jury would, therefore, take into consideration all the circumstances under which the defendants acted; - they would also look at the conduct of the plaintiff himself, and say how far it was such as to induce the defendants to act as they did, though, unfortunately, they had acted wrong.  His Honor concluded by expressing his full confidence that the verdict which the jury would return, would not only reflect credit on the administration of justice in New South Wales, but be such as, when they each retired to their homes and to their pillows, would enable them to lay their hands upon their hearts, and say, ``This day I have done my duty."



[1 ] For a longer version of the evidence in this case, see Sydney Gazette, 26 March 1831.

See also Mackay v. McQuoid and Murray, 1831; Mackay v. Sandilands, 1831; England v. Sandilands, 1831.  For comments and reports of other cases in this series, see Sydney Gazette, 8 February, 3 March 1831, 7 April 1831; Australian, 12 and 19 February, 8 April 1831.  See also Australian, 18 March 1831.  For earlier proceedings, see Ex parte England, Mackay and Coomber, 1830.

Governor Darling wrote about this case to Under Secretary Hay of the British government on 28 March 1831 (Historical Records of Australia, Series 1, Vol. 16, p. 219-222; and see pp 288-294).  He said that the Attorney General, A.M. Baxter, was utterly incompetent, and that the Solicitor General (Moore) was not inclined to serve the government.  This, Darling said, affected these cases.   He claimed that the plaintiffs had committed a felony at Swan River, where there was no means of bringing them to trial.  Moore defended the first two actions against the sheriff, in each of which the damages awarded were £200, and Dr Wardell the third, in which only £20 damages were awarded.  Therry then defended the actions against the Captain of the Comet, Sandilands: he had to pay only a farthing in damages.  Governor Darling blamed Moore for the disproportionate sum payable by the sheriff (and thus the governor).  Moore, said the governor, was said by his friends to be ``one of the most idle Men living". 

The three actions against the sheriff and against Captain Sandilands cost the Crown a total of £1,137 15s. 6d: Darling to Goderich, 10 October 1831, Historical Records of Australia, Series 1, Vol. 16, p. 403.  Darling went on again to explain the background to the actions.  They could not be tried for felony at Swan River because the Charter of Justice had not been received there.  On their arrival in Sydney, they were received by the Sheriff and restrained while it was ascertained whether they were escaped convicts from New South Wales.  Darling claimed that the amount should be charged against the Swan River accounts.

On the powers of the governors to send convicts from one colony to another, see (1830) 1 Wm 4 c. 39 (Sydney Gazette, 1 March 1831).

In 1832, the New South Wales Legislative Council passed a new statute to regulate convict escapes and rewards: see Australian, 20 April 1832.

[2 ] The Sydney Gazette reported the trial judge's charge to the defence as follows.

Published by the Division of Law, Macquarie University