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

Hogan v Hely (1831) NSW Sel Cas (Dowling) 115; [1831] NSWSupC 13

assault - false imprisonment - convict indents - Irish political prisoner - convict, proof of conviction - hulk - magistrate, action against

Supreme Court of New South Wales

Dowling J., 3 February 1831

Source: Sydney Gazette, 5 February 1831[1 ]

This was an action of trespass on the case, for assault and falss imprisonment.  Plea, the general issue.

Several of the special jurors, who had been struck in this case, not answering to their names when called, a tales was prayed, by consent of counsel on both sides, and the following gentlemen were sworn on the jury:-

Alexander Kinghorne, Esq. Foreman.

G. C. Curlewis,James King, Esqrs.

S. Terry,Talesmen.

W. Lawson,W. Hutchinson

Joseph Thompson,G. Blaxland,

Thomas Marsden,G. Acres, and

James Browne, andJohn Maughan, Esqrs.

Mr. Keith stated the case.  This was an action of trespass, in which John Hogan was plaintiff, and Frederick Augustus Hely, Esq. and William Lackey were defendants.  The declaration stated, that, on the 24th of  September last, the defendants made an assault on the person of the plaintiff, had him imprisoned in the prisoners' barracks, at Hyde Park, and afterwards forced him to go on board the Phoenix hulk, in the harbour of Port Jackson, where he was confined, in irons, for the space of six months.  A second count was for an assault and battery generally, and a third count for a common assault on the person.

The question for the jury (said the learned counsel) is, whether the defendants have been guilty of the alleged trespasses, at the time laid in the declaration.  I shall call witnesses to prove, that immediately after the plaintiff left this court, where he was attending on another trial, on the 24th September last, that he was taken into custody by the defendant, Lackey, and conveyed to the prisoners' barracks, whence he was transmitted, about half an hour after, by order of Mr. Hely, on board the hulk, and detained there during the space of time mentioned in the declaration, without any cause whatsoever; nothwithstanding he is a free man, and was so at the period when the trespass complained of was committed.  That Mr. Hely was satisfied of this fact, and expressed himself to that effect months before, I shall prove to you, gentlemen; for it will appear in evidence, that in consequence of certain affidavits made before Mr. Hely, he was so convinced in his own mind that the plaintiff's sentence of transportation had expired, notwithstanding the contrary appeared on the face of the Indents of the ship by which he arrived in the colony, that he suffered him to be at large for a considerable time previous to these transactions taking place.  These, gentlemen, are the circumstances which will be detailed to you by the witnesses which I shall now proceed to call, and it will be for you to say what damages you consider the plaintiff entitled to for these harsh proceedings against him.

The first witness called was,

Brent Clement Rodd, who said, I am articled clerk to Mr. Keith, the attorney in the cause; I served a copy of this notice, demanding a copy of the warrant on which the plaintiff was taken into custody, on the defendant, Lackey, on the Parramatta-road, on the 1st of  December last; the summons in this action was issued on the 9th of December.

[The notice, a copy of which was proved to have been served on the defendant, Lackey, by this witness, was here handed in, and read by the clerk of the court.]

William Bergin. - I know the defendant, Mr. Hely; he is Principal Superintendent of Convicts; I also know the defendant Lackey; in the month of September last, I saw the plaintiff in the prisoners' barracks; I apprehended him in the street, and was taking him to the barracks, when I met Lackey, and he accompanied us; Lackey was not with me when I first took the plaintiff into custody, but I met him on my way to the barracks; Lackey and I went out, in the first instance, to look for the plaintiff, in consequence of his being advertised as a runaway; after he was brought into the barracks, I saw Mr. Hely speaking to him, but I do not know about what; in half an hour after, the plaintiff was taken by me and another man on board the Phoenix hulk, and I delivered him up, together with a letter which I received from Lackey, to Mr. Murray, the Superintendent; the letter was sealed, I do not know what it contained; I do not know who wrote the letter; nothing was done to the plaintiff on board the hulk, in my presence.

Cross-examined by Mr. W. H. Moore.  -  The plaintiff was not in the custody of Lackey when I took him; he had been advertised for a month before, as a prisoner illegally at large; Lackey and I went out for the purpose of apprehending him; I apprehended him in consequence of seeing his name in the Gazette, as a runaway.

Re-examined by Mr. Keith  -  I suppose you would take me if I were advertised as a runaway

Witness - I would, if possible.  After I met Lackey, he accompanied me tot he barracks with the plaintiff; the list of runaways in the Gazette, purports to be signed by Mr. Hely, as Superintendent of Convicts.

James McAlister - I am chief in the office of Mr. Hely; I know, from an entry in the letter book, that a letter was written to Mr. Murray, the Superintendent of the hulk, the purport of which was to receive and keep Hogan on board, until further orders; it was signed by Mr. Hely, as Superintendent of convicts, in the usual way; it bears date the 24th September.

Mr. Moore here interposed, and objected to any evidence of a letter which was not produced or proved to have been lost or destroyed.

Mr. Keith replied that notice to produce it had been served on the defendants, in whose possession it was, and he called upon them to produce it accordingly.

Mr. Moore stated that it was not in the possession of the defendants, or their counsel; but just at this moment it was handed to the learned gentleman by the superintendent of the hulk, Mr. Murray.

The witness was then cross-examined by Mr. Moore I examined the letter entered in the letter-book, but I cannot take upon myself to say that a copy of the letter so entered in the book was sent; [letter handed to witness] this is a copy of the letter entered in the book; it is in my handwriting, and signed by Mr. Hely; the plaintiff had been advertised as a runaway, sometime before he was apprehended, and was brought into barracks as such; I am not aware, although he was advertised as a runaway, that he was constantly about the streets of Sydney; I never heard Mr. Hely give instructions to Lackey not to take him.

To a Juror  -  I can't say whether the Indents were examined when the plaintiff was brought into barracks.

David Murray  -  I am Superintendent of the Phoenix hulk; I know the plaintiff; on the 24th of September last, he was brought to me as a prisoner, with the letter just read, from Mr. Hely; he remained in my custody until the 1st of November; he always stated to me that he was a free man.

Cross-examined.  -  The plaintiff was received on board as all other prisoners are, and treated in the same way; he was discharged on the 1st November, I took one off; he was discharged to the barracks on the 1st Nov. to get his certificate of freedom; I am keeper of the hulk, under the Sheriff.

Re-examined.  -  The hulk is used as a common gaol, or house of correction.

Mr. McAlister recalled, and examined by a juror.  The plaintiff was advertised as a runaway, but I am not aware of the place he was stated to have absconded from.

This was the case on the part of the plaintiff.

Mr. Moore, in reply, merely stated, that he should call witnesses to show, that at the time these alleged trespasses were said to have been committed, the plaintiff was a prisoner of the crown under an unexpired sentence of transportation.

The first witness called was,

Charles Nye, a clerk in the office of the Colonial Secretary, who said, I produce the Indents of the prison ship Prince Regent (3), by which it appears that the plaintiff is a native of Tipperary, in Ireland, was tried in Nov. 1823, for insurrection, and sentenced to seven years' transportation; I know nothing of the person of the plaintiff.

Cross-examined by Mr. Keith.  -  These Indents have been in the office of the Colonial Secretary since the arrival of the ship.

Thomas Ryan.  -  I am a clerk in the office of Mr. Hely; I was in the Colonial Secretary's office at the time of the arrival of the ship Prince Regent (3) in the year 1824; I don't think I attended the muster of the prisoners by that vessel; I know the plaintiff; he admitted to me that he came by the Prince Regent, when I delivered him a ticket-of-leave about four years ago, and also when he came for his certificate of freedom; he has been dealt with as the John Hogan mentioned in the Indents, of the Prince Regent; I know of no other Hogan who came by that ship; he held a ticket-of-leave, but it was cancelled for an assault on a soldier, about two years before he was taken and sent on board the hulk.

Cross-examined.  -  The plaintiff did not receive his certificate of freedom under a protest; he said it ought to have been dated a year back; I am not aware of any affidavits having been sworn, and delivered to Mr. Hely some months before, stating that the plaintiff was a free man; I know that he had been at large some time before he was taken into custody, and I saw his name published in the Gazette, as a runaway; during the time he was advertised, I had frequently seen him in Sydney; some time previously to his becoming free, he was ordered a ticket-of-exemption, which I prepared by direction of the Colonial Secretary; Mr. Hely knew of this; it was previous to the 24th of last September; I believe the ticket-of-exemption was offered to him, in consequence of his having always disputed the time of his trial, as it appeared upon the Indents; he disputed it four years ago, when he received a ticket-of-leave; I then remarked to him, that it was of no consequence, as a ticket-of-leave was as good to him as a certificate of freedom; the ticket-of-leave was afterwards cancelled, for an assault, and the plaintiff sent to a road party, from which he absconded, and, being apprehended, was detained in barracks for some time, he was in barracks when the ticket-of-exemption was offered to him, owing to his continued assertions that he was a free man; I know a prisoner named Phelim Hughes; I know that he was set down in the Indents as a prisoner for life, but that the entry was afterwards altered to seven years, in consequence of a communication from the Home Government, that there had been a mistake; there was sufficient time to have sent home, and to make enquiries as to the actual period of the plaintiff's trial, between the time he first complained of being deprived of his liberty, and the 24th of last September; he admitted to me that he was a prisoner by the Prince Regent (3), but, at the same time, he claimed to be free in September, 1829; I know of no other John Hogan having arrived by the same ship.

Re-examined. - The ticket-of-exemption which I prepared for the plaintiff, by order of the Colonial Secretary, was afterwards cancelled, in consequence of the plaintiff not calling for it; it was after that he was advertised as a runaway.

[Three letters were here handed in and read; one addressed by the Colonial Secretary to Mr. Hely, dated the 19th of August, 1830, directing measures to be taken for the apprehension of the plaintiff, and two other runaway prisoners therein named; a second, dated the 28th of September, in answer to one from Mr. Hely, announcing the Governor's approbation of that gentleman's acts, respecting the plaintiff; and a third, of the same date, addressed to the  Sheriff, directing the plaintiff's discharge from the hulk, on the 1st of the then ensuing November.]

Mr. Nye, recalled by Mr. Moore, said, the Indents I produce are original, and have been in the office of the Colonial Secretary since the arrival of the ship; the Indents of prison ships are brought out by the Surgeons Superintendent, and are by them delivered over to the Colonial Secretary.

Cross-examined  -  I cannot swear that I saw these Indents actually delivered by the Surgeon Superintendent of the Prince Regent to the then Colonial Secretary, but I saw them on the same day in the hands of Major Goulburn, and I had occasion to make out a muster-roll from them; they were never altered in the Colonial Secretary's office, at least since they have been in my custody, now about 18 months; up to that period the Indents were kept by the Colonial Secretary.

By the Court  -  This Indent has been acted upon, by the assignment of the prisoners therein named.

This was the case on the part of the defendants.

Mr. Keith submitted that the Indents were not proved in the manner required by the Act of Parliament, 5th Geo. IV. § 24, which, as proof of the conviction of a prisoner, required the certificate of the clerk, or other officer having the custody of the Records of the Court before which he was tried.  He was aware of an Act of Council, passed on the 5th of July, 1830, by the 4th clause of which, proof such as had been offered to the court, was held to be sufficient; but, he contended, if the court even should be of opinion that an Act of Counsel could contravene the provisions of an Act of the Imperial Parliament, that that Act of Council had reference only to prisoners who were being tried for second offences, and did not apply to a case like the present, where a party claiming to be a free man - although alleged to be a prisoner - was a plaintiff in a civil suit.

His Honor observed, that on a former occasion the case of the King against Baddelly and another,[2 ] for aiding the escape from the colony of a prisoner of the crown - the court had decided, after hearing a very able argument, that the production of the Indents, coupled with proof that they had been acted upon, and the party dealt with as a prisoner of the crown under sentence of transportation, was prima facie evidence that he was a prisoner, until the contrary be shewn.  The learned Judge also adverted to the impossibility of obtaining any better evidence in this colony, but said that he would reserve the point for the consideration of the full court, should it be necessary, at another opportunity.

Mr. Moore addressed a few observations to the jury, contending that he had proved the plaintiff to have been a prisoner of the crown at the time the alleged trespass was committed, on the only evidence which could be produced of that fact, or that Mr. Hely had any authority to recognize.

To rebut the testimony on the part of the defendants, Mr. Keith called

William George Barker - I am clerk to Mr. Douglass, the auctioner, I know the plaintiff; I knew him in Ireland in the year 1823; I saw him on board the Earl St. Vincent; I was a seaman on board that ship; he came on board, with several others, as a prisoner; I cannot say in what month he came on board, but I remember that we received prisoners from the latter end of 1822, till April 1823; it was either in April, or previously to that month, that he came on board; the vessel then lay in the Cove of Cork; a few days after the plaintiff came on board, he was drafted back again, with some others, and sent up to Cork by the steam-boat; I stated these circumstances, on oath, to Mr. Hely, some time ago, and there were also other witnesses then in attendance to prove the same facts; Mr. Hely said to me, ``That will do;" I can't say how-long ago this is, but it is considerably more than six months.

Cross-examined.  -  I cannot say how long the plaintiff remained on board the Earl St. Vincent.

William O'Neil.  -   I am clerk to Mr. Hall, of this town; I know the plaintiff; I knew him in January 1823; in the depot at Cork; prisoners are sent to the depot after trial, never before; it is the general rendezvous for all prisoners who have been tried and sentenced to transportation; when I saw the plaintiff to the deport, he was a prisoner under sentence; I saw him afterwards on board the ship Earl St. Vincent, in the Cove of Cork, as a prisoner; he was taken, with several others, out of the vessel before she sailed, and sent back to Cork; it was not for any offence committed on board that he was sent back; it was understood that he was going to get his liberty; I came to this colony in the Earl St. Vincent, and arrived in September 1823; about four months and a fortnight before that time, I saw the plaintiff on board, at Cork.

Cross-examined.  -  I do not know where the plaintiff was in November 1823.

Michael Keenan said, I knew the plaintiff in the depot at Cork, in November 1822; this was after he was tried; I understood, and heard from himself, that he was tried under the Insurrection Act, and sentenced to seven years; transportation; he remained with me in the depot five months, when I was sent on board the Earl St. Vincent; some weeks after, the plaintiff came on board, and after remaining nine or ten days, he was drafted back to Cork, as was supposed, to get his liberty; I did not see him after till he arrived in this colony; he came, as I understand, by the Prince Regent, and he was assigned to my master, Mr. Wollstonecraft, on his arrival; I have seen him at liberty about the town, in Sydney, previous to the 24th of September last.

The evidence on both sides closed here.

Mr. Keith replied upon the evidence.

The learned Judge charged the Jury, and told them that the evidence tendered on behalf of the defendants, to show that the plaintiff was a prisoner of the crown, under an unsatisfied sentence of transportation, at the time the alleged trespasses took place - namely, the Indents of the ship by which he arrived in the colony - was to be taken as strong prima facie testimony, and that every intendment of law should be made in favour of that document.  Still his Honour was bound to state to them, that that document was not like a Record, binding and conclusive against the party which it was intended to affect.  A Record or a court of justice was a solemn instrument, and could not be impeached by any collateral testimony; but as the instrument before the court was complied from other documents, it was open for a party sought to be affected by it to impeach its accuracy by other evidence.  The question, then, for the jury in this case, was, were they satisfied upon the evidence, that the plaintiff was a free man at the time the alleged trespass took place?  If they were, then, without doubt, he was entitled to a verdict.  But supposing them to arrive at this conclusion, there was still another and most important point for their consideration; namely, Did the defendants - Mr. Hely, in particular - act bona fide?  His Honor apprehended, whatever that gentleman's private opinion might have been, that hehad not authority to question or to decide upon the accuracy of the Indents; and that as an officer of the government, he was bound to act upon them as he received them from the authorities at home.  Therefore, even if the jury should be of opinion, upon the evidence for the plaintiff, that a mistake had taken place, and that he really was a free man at the time of these transactions, still, in estimating the amount of damages, they would award, they ought also to take into consideration the other circumstances to which he had averted - seeing that the defendants were merely acting ministerially, upon an authority, which they had no power to question; - and seeing, also, that the defendant had no very meritorious cause of complaint after the offer of a ticket-of-exemption, which, to him, would, doubtless, have been fully equivalent to a certificate of freedom.

The Jury, after retiring for a short time, found a verdict for the plaintiff, damages £10.



Forbes C.J., Stephen and Dowling JJ, 14 February 1831

Source: Sydney Gazette, 19 February 1831[3 ]

This was an action of trespass on the case, for assault and false imprisonment, tried this term before Mr. Justice Dowling and a Special Jury, and a verdict returned for the plaintiff, damages £10.

Dr. Wardell rose, to move for a new trial in the above cause, on three several grounds; first, that the verdict of the Jury was contrary to evidence; secondly, that inadmissible evidence had been received on the trial, and, thirdly, that the learned Judge before whom the case was tried, had misdirected the Jury.  The learned Counsel said, - I had not the benefit of being present at the trial of this cause; but, as it appears to me, the nature of the case is sufficiently developed in the facts detailed in the evidence which has been just read, to remove any difficulty I should otherwise labour under, for the reason I have just stated.  The first ground on which this application is made to the Court, is that the verdict is contrary to evidence; and, certainly, looking at the evidence which has been read from the Judge's notes, I think it would puzzle any one to discover upon what the verdict of the jury was founded, especially if we take out of the case all that testimony, which I contend was clearly inadmissible; I mean hearsay evidence, and evidence coming out of the plaintiff's own mouth.  There can be no doubt that this very evidence is what weighed with the jury, and impressed their minds that the plaintiff became free in the year 1830, instead of 1831.  But, I would ask, of what does that evidence consist?  Why, either of what the plaintiff stated himself to the witnesses, or of the mere conclusions of the witnesses themselves, from acts not at all bearing on the case.  I would particularly advert to one piece of evidence, which, I contend, was wholly inadmissible; I allude to that which went to dispute the authenticity of the Indent of the ship, on proof that, on a former occasion, an error had occurred in the Indents of another ship, wherein a man was set down as a prisoner for life, instead of for seven years.  Now, surely, it is not because an error originated at one time, that that fact is to be received as evidence of the correctness of a similar instrument.  Surely it cannot be held that evidence like that can be received to impeach the accuracy of the ship's Indents, in which the name of the plaintiff appears.  Why it is as much as to say, because a man indicted for stealing a horse is proved to have stolen a horse upon some former occasion, therefore he stole the horse for which he was indicted.  The cases, I maintain, are similar in every point of view.  Because an error occurred in an Indent at one time, therefore an error occurred in another Indent, and at another time!  And yet, no doubt can exist that this description of evidence must have produced a moral effect on the minds of the jury, and, coupled with the other inadmissible testimony to which I have alluded, induced them to come to the conclusion they arrived at.

Mr. Justice Stephen.  -  Can you show me any Act of Parliament, Dr. Wardell, rendering the production of an Indent tantamount to direct evidence of a fact?

Dr. Wardell:  -  That question, your Honor, brings me to another part of the case.  If I answer in the negative, what would be the result of a decision of this Court holding that the Indents are not sufficient evidence of a man being a prisoner of the Crown?  What remedy would the government have if any prisoner, the moment after his arrival in the colony, claimed his liberty, and not receiving it, brought an action in this Court?  He would say, ``Prove me to be a prisoner."  The Indents are produced, but the Court holds that there is no Act of Parliament making them evidence of the party being a prisoner.  But in a case involving penal consequences to an individual the Indents have been held to be prima facie evidence of his being a prisoner; and surely I may go the length of stating that such a case has been raised here.  Now a prima facie case is not to be got rid of by loose presumptions; and I ask what other evidence have we here, than the very vaguest of presumption?  One witness states, ``Iunderstood, and heard from himself, that he was tried under the Insurrection Act, in Nov. 1822."  Why, certainly, if that be believed by a jury to be true, it would go a long way in establishing the plaintiff's case; for they would doubtless reason from coincidences, and ask themselves ``if the plaintiff was tried in Nov. 1822, how he came to be sentenced in Nov. 1823?"  But what is this, in fact, but mere heresay, and the statement of the man himself, to help out a lame case?  Take that evidence away, and what remains but the mere circumstance of his having been on board the Earl St. Vincent, which he afterwards left, and went ashore, as was understood by the witnesses, to get his liberty.  Now, what is more common than when doubts arise respecting the propriety of a conviction on one, perhaps, of several charges, to pardon the offender for the first offence, and try him on a minor charge?  What reason could there be for removing the plaintiff from the ship he he was first seen on board of, except to grant him some remission of sentence, either partial or otherwise.  It is not only not pretended that the vessel was overcrowded, and that he was removed on that account, but it is in evidence that the general understanding was, that he went ashore to get his liberty.  There could, in fact, have been no other reason for removing him, except, indeed, it might have been supposed that he could divulge something, and that his evidence would be of service.  But there is no pretension that this was the case.  There could, therefore, be but one object in taking him from the ship - either to grant him a pardon, or to try him for some minor offence, and if guilty, to sentence him for it.  Are the Indents, then, to be in the place of a record, or are they not?  If they are, then they cannot be contradicted: if they are not, still there must be a case raised against them; and what is the case here?  Here is an Indent containing the name, description, place of trial, and sentence of this man - which has been acted upon in the colony - and what is there to impeach it?  Why, that he was seen on board the Earl St. Vincent, and taken out of her about four months and a fortnight before the arrival of that vessel in New South Wales!  It was certainly pressed upon the jury, that Mr. Hely felt some doubt, with respect to the time of the plaintiff's sentence; but what does that amount to?  Surely it is no more than asking the opinion of any man here, ``What do you think?  Was I free in 1829 or 1830?"  I contend that none of this evidence ought to have been received; but, at all events, if received, that it ought not to raise a case on which a jury ought to act.  Any on might make up such a case.  We, therefore, gee into this dilemma: either the Indents are the best proof of a person being a prisoner, or they are wortht [sic] nothing at all.  Then, if the Court take the Indents to be proof to the extent of the Act of Council.

Mr. Justice Stephen  -  That the Act could not have the effect of altering an Act of Parliament.

Dr. Wardell  -  Why, it has that effect; because in England, the Record only could be received as proof of conviction.  Besides, it has been held in this Court, that the Indents shall be proof of a party being a prisoner, in all cases, in the same way as this Act provides that it shall be received in one particular case; that is, it shall be received as evidence in place of that otherwise only legal evidence, the Record of conviction.

The Chief Justice  -  Suppose there were a general application made by the whole of the prisoners arriving in some ship, for their discharge by writ of Habeas Corpus, would not the Indents be a sufficient return?

Dr. Wardell  -  Your Honor, I am at a loss to discover the distinction between such a case and this.  This plaintiff had art enough to take advantage of some circumstances: and because he was proved to have been on board a vessel at a certain period, and denies that he was ever convicted afterwards, the Indents are to be invalidated.  Why, if proof like that is to get rid of a strong prima facie case, there is nothing whatever to prevent a whole batch of prisoners taking advantage of some circumstances or other, getting a few of their fellow-prisoners to come forward and swear they saw them in gaol, under sentence, prior to the date of the Indents, and claim their freedom.  I, therefore, confidently submit, that this case has been decided contrary to evidence.  Here is a public officer, acting up to the  letter of the document received from the Authorities at home - acting, I contend, as he only had power to act - held liable for consequences which the complaining party himself originated.  Surely he who has merely performed his duty, can not be held to have acted illegally, and what more has Mr. Hely done here?  -  or, if he had not so acted, would he not have rendered himself liable to penal consequences?  Would it not, in fact, have been an infringement of the law, had he allowed this man, who had been placed under his charge by the Home Government, to go at large, on loose proofs like these?  Here is an individual complaining of wrongs, and seeking redress against a public officer who has merely done his duty, he himself being the very party who gave rise to the casualties, and originated the consequences of which he complains.  Therefore, I contend that this verdict is not only contrary to the spirit of ever law, that a man should be punished for merely discharging a ministerial duty, and who is placed in a dilemma which originated in the acts of the party who comes forward to complain.  I submit, therefore, on the grounds set forth in the notice, and which I have already stated, that a new trial ought to be granted in this case.

Mr. Keith, in reply, contended that as the evidence was not objected to at the time of trial, he was not bound to go into that point.  If ever a case was satisfactorily proved, it was the case of the present plaintiff.  It was also tried by a Special Jury; and heaven knows that juries in this colony are special enough.  Most of that jury were men in some way or other connected with the government, and whose interest it was, not to find a verdict for the plaintiff, if they were not satisfied, upon the clearest evidence, that he had completely substantiated his case.  They, however, did come to a conclusion that his statement was correct, and that he was free twelve months before, upon evidence which he (Mr. Keith) denied to be mere heresay evidence, and which was, in fact, evidence over which the plaintiff could not possibly have had any control.  In the Indents it was stated that he was tried for insurrection; and upon the evidence of the witnesses, it was clear, that he was in gaol, under conviction for insurrection in the year 1822.  That was a most material fact, and no doubt did weigh with the jury, who could not be satisfied that he was taken from on board the Earl St. Vincent, set at liberty, and that he committed a precisely similar offence to that of which he had been previously convicted, was tried, found guilty, and sentenced to transportation, all within the short space of four months and a fortnight, up to which time he was traced by the witnesses.  The learned Counsel therefore contended that the plaintiff's case had been clearly made out, and that a new trial ought not to be granted.  Besides, there was another reason why the verdict could not be disturbed.  According to the practice of the Court of King's Bench at home, and which practice, except so far as it was altered by the Rules of Court here, also prevailed in this Colony, no new trial could be granted where the verdict was under £20.

Mr. Justice Dowling, - That rule applies only to money actions.

After a few more observations from Mr. Keith, the learned Judge delivered their opinions to the following effect:-

Mr. Justice Stephen. - I have paid the utmost attention to this case, as it is one in which the liberty of the subject is essentially involved, and as it materially affects the system of government under which so large a portion of the population is held in subjection.  It is, therefore, a case of great magnitude, and I have given the most minute attention to the arguments on both sides.  There can be no doubt that a person, once a prisoner, and who has expiated his offence by the endurance of the sentence allotted to him by the laws of his country, has an equal right with any other British subject, to come into this Court, and claim redress for any violation of his liberty.  This position is indisputable: the question, then, here is, has there been that violation of his liberty of which the plaintiff complains?  It appears by the Indents of the ship by which the plaintiff arrived in the colony, that in November, 1823, he was convicted of insurrection, and sentenced to transportation for seven years; and that he was put on board the vessel which conveyed him to this country, under one sentence only, namely that passed in Nov. 1823.  If that indent be correct, and that the sentence really was passed in Nov. 1823, then the plaintiff would not be a free man until Nov. 1830; if, on the contrary, a mistake occurred, and that he was sentenced in 1822, then he would have been free in 1829, and entitled to sue in this Court.  By the law of England, as proof of conviction, the certificate of the clerk of the Court before which an offender may be tried, is required, and is now held to be of equal validity with the original record.  The Colonial Act refered to in the course of the argument to-day, I apprehend, had other objects in view, and was not intended to make an alteration in the English law, which requires certain things to be done, as tantamount to the production of a Record.  In this Court, the Indent has been allowed as prima facie testimony, to put the party on the negative.  But, it has been admitted by Dr. Wardell, in the course of his argument, that such evidence is not conclusive of itself; while the case of the plaintiff is that the Indent is not true.  To establish that fact, evidence has been received, which, perhaps, would not strictly amount to a contradiction of the authenticity of the Indents, or show that there really was an error in them.  But does it not on that very account, appear necessary that something tantamount to the certificate of the Clerk of the Court, required by the English law, should be produced, and that the Indent should not be suffered to supply all other proof?  True, the local Act says they shall be received in evidence, and on that Act not on the Act of Parliament, the chief argument has been raised.  But I wish to know, in what way the authenticity of the Indents could be positively disproved, except by the presumption arising out of a variety of facts? - and I, therefore, see no reason why such presumption should not be admitted.  Here there appears to have been presumptive evidence that a mistake occurred.  The plaintiff was seen, according to the testimony of several witnesses, in gaol, in the early part of 1822, and subsequently on board the ship Earl St. Vincent, under sentence for insurrection.  He was taken out of that vessel, and sent ashore, and four months and a fortnight after, we find him on board another ship, under sentence for an offence precisely of the same description, which, according to the evidence and to the Indents, must have been committed in that interval.  Could he have committed insurrection in gaol?  Or supposing him to have been discharged from the Earl St. Vincent, it should have been shown that a subsequent offence had been committed, and not assumed.  But here, we find him on board, another ship, for precisely the same crime.  Does not this state of things, prove the injurious effects of considering the Indents as evidence of the fact?  The evidence, therefore, in my opinion, was very properly admitted by the Judge who tried the cause.  This action was brought against Mr. Hely, the Superintendent of convicts, and another, acting under his orders.  As far as he is concerned, two witnesses were called as to what took place before him, and who state that the plaintiff always claimed his freedom from Nov. 1829.  What does he do?  The plaintiff held a ticket-of-leave, which appears to have been cancelled for assaulting a soldier; but is he otherwise punished?  No; he is suffered to be at large; not treated as a criminal, and still claiming his freedom.  Mr. Hely says, ``No you shall not have that, but you shall have what will do equally well for you," and offers him a ticket-of-exemption, which he refused - and very properly refused, when he considered himself entitled to the rights of a free subject.  I say he very properly refused to allow himself to be treated as a slave, or to accept that as a boon, to which he considered himself entitled as a right.  He refuses the ticket-of-exemption and then only is it, that the defendant has him apprehended as a runaway, and claps him on board the hulk, in irons.  Do not these facts afford the strongest of all presumption, that the defendant, Hely, believed the plaintiff to be a free man at the time he claimed his freedom.  Is it because the defendant is a public officer, that he is to be supported in whatever he does, right or wrong?  I trust not.  I would not live under any government that would support any man, whoever he might be, in a breach of the laws.  I trust that in this Court the laws will always be impartially and uprightly administered to the poor as well as the rich; and that no man, whatever his rank may be, whatever office he may hold, shall be held irresponsible for the invasion of the rights or, liberty of the subject.  Upon the  whole of this case, I am of opinion that the evidence has been properly admitted.  That evidence has been submitted to the consideration of a respectable jury, who have formed their conclusive from it, and I see no grounds for disturbing their verdict.

The Chief Justice - I exceedingly regret at any time, to be obliged to differ from either of my learned colleagues on the Bench, and I regret it the more in a case like this, which involves a question of such vital interest, not only to the government of the colony, and to the free inhabitants, but to the prison population itself.  I must observe, that I do not view this proceeding as a question of damages; and I am, therefore, under the necessity of going at some length into the nature of the case.  From the facts I collect that the plaintiff came to the colony, as a transport, on board the ship Prince Regent, under sentence for seven years.  With the prisoners was also transmitted a corresponding Indent - a paper containing an account of the names of the parties, their offences, when and where tried, and other particulars - which, on the arrival of the vessel, was deposited in the usual office, and there kept until it was exhibited in evidence before this Court.  From this document, it appeared that the plaintiff was convicted under the Insurrection Act, and sentenced to transportation for seven years, on the 8th of November, 1823; so that, according to this statement, the sentence would not have expired until the 8th of Novomber, 1830.  In the intermediate time, several occurrences took place in the colony which it is not now necessary to notice; but, on the 8th of September, 1830, the plaintiff was taken up as a runaway, and the Superintendent of Convicts having satisfied himself that he was illegally at large, caused him to be sent on board the Phoenix hulk, and there detained until the 8th of November following, the day on which his sentence, according to the Indents, expired.  This case came on to be tried, and the facts I have stated were proved in evidence.  The learned Judge put it to the jury to say, whether the Indent established such aprima facie case as would satisfy them that the plaintiff was sentenced at the time therein set forth, that is, in November 1823; but as it was not an original instrument, that it was competent to them to take into consideration the evidence for the plaintiff, - namely, that of one witness, who deposed that he saw the plaintiff, in January 1823, and that he then stated himself to be convicted the year before, and that of another witness stating that he was on board the Earl St. Vincent, in April or May of the same year - and say whether they were of opinion that the plaintiff was convicted in the year 1822, or in 1823.  With respect to the first point, namely, the evidence of the Indents, it is one of the deepest moment to the whole colony; not less to the government and the settlers, than to the convicts themselves.  The question is not less than whether the Indents of a prison ship - the great calendar under which the whole convict population is held by the government, and by virtue of which a property in the services of their servants is vested in the settlers throughout the colony - whether such an instrument as this is capable of being overturned by testimony like that adduced on the trial of this case, and which appears to have swayed the minds of the jury?  I repeat that this is a most momentous question; for if it be held that a document of this description is capable of being so impeached, I see nothing to prevent any prisoner from alleging himself to be a free man the very instant he comes on shore, and overturning the only instrument upon which the whole penal system of the colony, can be supported.  Now, it has been hitherto the invariable practice of this Court, to consider the Indent, not only as prima facie evidence of the person therein described being a prisoner under sentence, but as the strongest secondary evidence, and requiring proof far stronger than that laid before the Court, in this case, to overcome.  In England, `tis true, nothing but the Record, or an attested copy of it, will be received as proof of conviction.  But why is this rule adopted?  For public convenience, which requires those formalities to prevent fraud, and deception.  But here, if nothing but the Record of conviction were held to be proof of the fact, not one case of conviction could be sustained against a prisoner in the colony.  I, therefore say, as far as my experience of the usages of this Court has gone, it has been its invariable practice to consider the Indent as proof, and the best proof of the conviction of the person described therein, and sufficient to protect parties acting under it.  It is in fact, the best of evidence, which the nature of case will admti [sic].  The rule adopted by the Court, in this respect is not only convenient and necessary for the Superintendent of Convicts and others having the control of the prisoner population, but to the prisoners themselves, who are equally interested that an instrument like that should not be suffered to be impeached by parol testimony, except of the strongest possible description; and though I admit the general principle of the right of a jury to decide upon the credit of testimony submitted to them, still the Court has also a right to interpose where a verdict appears to have been founded on testimony not legally sufficient to sustain it.  And in this case, what have we but the mere verbal testimony of persons, acquired while they were in a state of legal competency, with respect to what took place in Ireland, in opposition to an instrument like an Indent.  But there is also another strong circumstance in this case.  It is that one of the defendants is a person bound to have the custody of the prisoners in this Colony, and the other, a party acting in his office under a delegated authority.  The defendant, Mr. Hely, is Superintendent of convicts, and also a Justice of the Peace.  Now, I hold in my hand a local Act, No 12, passed in the eleventh of the late King, with respect to the scope and object of which, I apprehend, some misapprehension exists in the mind of the learned Counsel for the plaintiff.  The English Act was intended to facilitate the proof of conviction in a particular case only; --- that is where the commission of a second offence entailed an increase of punishment.  That this was also part of the object of the local Act is undeniable.  But it was principally to furnish proof, in cases of conviction beyond the seas; and to enable the Court to deal with persons who came out as prisoners, and it goes on to provide that the production of the Indent, on the trial of any such offender, shall be deemed sufficient proof for the purposes of the law.  There can be no question, if the defendant, as a Magistrate, had sat down to enquire whether the plaintiff was a runaway prisoner, that he must have been justified under this Act, whether the fact were so or not.  Here then is an Act in affirmance of what this Court had held before, that the Indent shall be taken as strong prima facie evidence of the fact it is intended to prove.  I say, therefore supposing the case had come before the Magistrates sitting, as such and the Indent had produced, that they would have been justified in acting upon it under this law.  How, then, does the defendant stand differently situated?  He is Superintendent of Convicts; and, by the transportation Acts, all Superintendents are Magistrates, so that the particular situation in which he is placed makes the application of the local law as strong to him.  How could he dispute the authority of the Indents?  He had no power to do so.  In every point of view, I think that the testimony of the two witnesses for the plaintiff, on the trial of this cause, was not sufficient evidence in law, to shake the authenticity of the Indents, against which no fraud was alleged or proved, and on the faith of which the plaintiff afterwards obtained his certificate of freedom.  I am of opinion, therefore, that a new trial ought to be granted.

Mr. Justice Dowling. - I had no previous knowledge of the merits of the case, or the point intended to be raised, until it was brought before me at the trial; and from the manner in which business is generally conducted at a trial, not in full Bench, many points arise of considerable importance, which a judge is called upon on the sudden to determine, without the opportunity of previous consideration.  In this case I intimated my opinion strongly (subject to correction by the whole Court, for I reserved the point), that the Indent, not having the solemnity and validity of a record, it was open to be impeached in its accuracy by other evidence, not matter of record.  This certainly is a vital question, as it respects the state of the prison population of this country, and I certainly should wish it to undergo the fullest and most solemn consideration.  But assuming that I was right in holding that the Indent was open to impeachment by viva voceevidence (of which I have now grave doubts), I think, upon further consideration, that I ought to have told the Jury that the plaintiff having been sent on shore again from the Earl St. Vincent, in the month of May or June 1823, according to the evidence, and no further account given of him until we find him mentioned in the Indent in November 1823; the Jury were bound to act upon the Indent as conclusive evidence, in this colony (in the absence of evidence to controvert it), of the time of conviction, place of trial, and sentence.  I therefore think, that there ought to be a new trial, in order that the case may undergo the most advised consideration. - Motion refused.



Forbes C.J., 24 March 1831

Source: Australian, 1 April 1831

THURSDAY 24th. --- Hogan v. Hely (Superintendent of Convicts.)  This was an action of trespass for imprisoning the plaintiff, on the presumption that he was a prisoner illegally at large, under the indent of his transportation; whereas it clearly appeared by the oral evidence of various witnesses, that the plaintiff was a prisoner on board the Earl St. Vincent, in Cork Harbour, in the latter end of 1822 and beginning of 1823, whence he was drafted away with several others, and subsequently shipped on board the Prince Regent prison-ship in 1824, there being no evidence to shew that the plaintiff was convicted in the mean time of a second offence, but that he was only convicted in 1822, under the Irish Insurrection Act, and sentenced to seven years transportation; but the indent stated the conviction to have been found in 1824.  This was a second trial, upon similar grounds, a verdict for the plaintiff having been found on the first trial.

The Chief Justice advised the Jury to the effect, that as defendant had not appeared to have acted with malice in the case, but justified in going upon the indent, which the Court held to beprima facie evidence of conviction in all cases, therefore if the plaintiff were aggrieved, his remedy lay as against whoever wilfully may have made the mistake, and not against the defendant, who so acting without malice, was acting irresponsibly.  On this the Jury found for the defendant.



Forbes C.J., Stephen and Dowling JJ, 30 March 1831

Source: Australian, 8 April 1831

WEDNESDAY 30th. -- In Banco, Mr. Wentworth moved the Court this day for a new trial, in Hogan v. Hely, decided for the defendant on Thursday last, contending with much force and acumen, that the action having been simply for a trespass no express malice was necessary to be implied or proved as in a trespass ``on the case;" that the plaintiff had adduced the best oral testimony to falsify the indent in his case; that indents have no legal existence; and that either the learned Judge misdirected the Jury, or that the Jury misconceived his direction.

Dr. Wardell contended on the other hand for the validity of the indent, and entire impeccability of the defendant, who was in duty bound to square his conduct by the evidence of the indent, and was not bound to entertain any oral testimony in correction of it.

The Judges laid their heads together for some time, when the Chief Justice said that as the matter involved some very important considerations, the Court would take time to consider and pronounce their decision on a future day.



Forbes C.J., Stephen and Dowling JJ, 31 March 1831

Source: Sydney Gazette, 5 April 1831[4 ]

This was an action of trespass, vi et armis, tried before the Chief Justice and a Special Jury, in which a verdict was found for the defendants.  A new trial was yesterday moved for by Mr. Wentworth, for the plaintiff, on the two several grounds of the verdict being contrary to evidence, and that the learned Judge had misdirected the Jury, in point of law, on the trial of the cause.  After hearing the arguments of Counsel, the Court stated, as the case was one of considerable public importance, it would take time to consider of its judgment.  Immediately after their Honors had taken their seats upon the Bench this morning.

Mr. Justice Stephen said, that the Court had carefully considered the arguments addressed to it in support of the motion for a new trial, and that his learned brethren were of opinion, for the reasons they would state, that the application ought not to be grated.  He (Mr. Justice Stephen), however, although he must be bound by the ruling of the majority of the Court, with respect to the only evidence which could be allowed to invalidate the Indents, was of opinion that a new trial ought to be granted.  Upon the law of the case, arising out of the instrument called an Indent, and its liability to be impeached by oral testimony, it was not then necessary for him to express any opinion; inasmuch as, his leaned colleagues having come to the conclusion that such evidence could not be received for that purpose, if the cause went to a new trial, he must be bound by their decision.  But, as the case was one of considerable importance, in every point of view, he though that a new trial - perhaps a trial at bar - ought to be had, in order that the facts of the case might undergo the fullest, and most deliberate investigation.

Mr. Justice Dowling delivered his judgment to the following effect:- I am of opinion that there ought not to be a new trial in this case.  This was an action of trespass for assaulting and falsely imprisoning the plaintiff.  At the trial before His Honor the Chief Justice,  the defendants had a verdict.

The case, as I collected it from His Honor's notes, was this: - The plaintiff had been a convict felon, and was transported to this country in the Prince Regent in 1823.  By the instrument called the Indent, which accompanied the felons in that vessel, it appeared that the plaintiff had been tried and convicted of insurrection in October 1823, at Tipperary, and had been sentenced to seven years transportation, and consequently, according to that instrument, the plaintiff could not have become free until the latter end of October, 1830.  On the 24th September, 1830, the plaintiff being found at large in Sydney, without any lawful authority, he was taken up by the orders of the defendant Mr. Hely, as the Principal Superintendent of Convicts in this country, and sent on board the Phoenix prison hulk in Port Jackson, and there detained as a runaway convict until the 1st day of November, 1830, when he was liberated.  For this imprisonment the action was brought, on the ground that, although by the Indent it did appear that the plaintiff's term of transportation would not expire until October, 1830, yet in truth and in fact he had been tried and sentenced some time in 1822, and had become free in 1829. At the trial the defendants relied upon the Indent of the Prince Regent as conclusive evidence of the time when the plaintiff was tried in Ireland, and of the period when his term of transportation would expire.  In reply, the plaintiff proposed to produce evidence to impeach the validity of the Indent, and to shew that there had been a mistake in it as to the time of the plaintiff's trial and conviction in Ireland.  It was objected that the Indent, being the official instrument or warrant transmitted with the prisoners by the Prince Regent, and being the only muniment or record in this country of the plaintiff's being a transported felon, its validity could not be contested in this country.  The learned Judge was of opinion that the Indent had not the same validity and conclusiveness as the record of a Court of Justice, but that prima facie, it must be taken as a valid instrument, binding and conclusive in this country as to its contents, unless it were impeached by evidence of greater or at least equal validity; and in order to let in evidence of that description, he allowed the plaintiff to go on with his proofs without limiting or tying him down to any particular species of evidence.  Two heads of proof were then produced; first, the parol evidence of persons who saw the plaintiff as a prisoner on board the Earl St. Vincent conviot ship at Cork in the early part of 1822, as a sentenced felon for seven years, and that he was afterwards brought to this country in the Prince Regent; and secondly, to shew the probability of there having been a mistake in the Indent in question, inasmuch as in other instances mistakes had been discovered in this country, and rectified in similar instruments.  No official or other written evidence of any description was offered or produced to shew that there had been an error committed by the person who framed and signed the Indent in questiion, but its impeachment rested upon the recollection of the witnesses who saw the plaintiff a prisoner on board a convict ship in Ireland, under sentence of transportation in 1822.  There was other evidence of the like description on the part of the defendants, tending to shew, out of the plaintiff's own mouth, that he had been liberated from the Earl St. Vincent, set at large, and had afterwards committed a fresh offenee, had been again convicted in October, 1823, and for which offence he was transported in the Prince Regent; but to this evidence I do not think it necessary, more particularly to allude, the verdict.  The learned Judge, in summing up the case, adverted to the Rule which had been laid down by the Judges, when this case was previously under consideration; - namely, that the Indent might be impeached by evidence of equal validity, but that parol evidence was not sufficient per se to destroy its effect, and that the multiplication of parol evidence in the absence of a certificate copy of the record of the plaintiff's conviction, or some other written document of the like character or import could not be allowed to control the operation of so formal an instrument as an Indent signed by an accredited public executive officer, and transmitted in the usual course of official business, and which unless impeached by evidence of like force and effect, must be treated as binding and obligatory upon those to whom it was transmitted.  Having called the attention of the Jury to the species of evidence produced by the plaintiff, and telling them that it fell short of the proof necessary to impeach the Indent, that instrument must be regarded as a regular and perfect authority for keeping the plaintiff in a state of bondage for the term of seven years, ending in October, 1830; and in that view it was a sufficient protection to the defendant, Mr. Hely, for the alleged act of false imprisonment.  The Jury, under this direction, found the verdict for the defendant.

A motion has since been made for a new trial, by a gentleman who was not originally of counsel in the cause, principally on the ground of alleged misdirection on the part of the learned Judge, in broadly holding that the Principal Superintendent of Convicts, in the country, was an irresponsible officer.  As the learned Judge who tried the cause has repudiated this account of the way in which it is alleged he had left the case to the Jury, I must regard that ground of the motion as wholly untenable.  The Judge who tries the cause I take to be the most competent person to determine in what way a case has been left by him to a Jury, and that those who are called upon to review his decision must be bound by his report of the cause.  But even if, in this case, the other Judges did not feel themselves bound in duty as well as in courtesy, to give credence to what has been reported by their learned coadjutor, as to the manner in which the cause was tired, I think we ought at least to bear in mind that the learned gentleman who has impeached the summing up, confesses that he was not originally in the case; that he came into Court at the tail of trial, and just as the learned Judge had concluded a long and laborious summing up.  I have carefully attended to the learned Judge's report of the case, and, I am of opinion, that it was properly left to the Jury.  Evidence had been received on both sides, which appears to have been left by the Judge to the Jury, with such observations as appeared to him to be proper to make as to its legal effect and application with reference to the main point in the cause, namely, the validity of the Indent.  He alluded to the ruling of the Court on the previous occasion; and he told them, that in his judgment, the evidence did not come up in point of quantity or quality to the stantdard by which the validity of the Indent was to be tried.  The Indent, therefore, continuing to retain its original prima facie character for validity and authenticity, was a protection to those who were officially called upon to act upon it; and the Jury, under that direction, found their verdict for the defendant.  It does not appear, as has been insisted, that the evidence was withdrawn from the consideration of the Jury.  On the contrary, the whole of it was recapitulated, subject to such observations as to its legal effect, as the Judge was bound to make.  The plaintiff first launched his case by proving the alleged trespass.  In reply, the defendants relied on the Indent as a genuine and authentic instrument, and proved that the plaintiff was one of the prisoners therein named.  The Indent was then impeached by evidence on the part of the plaintiff.  All these successive stages of proof were proper for the consideration of the Jury.  The Judge left them accordingly, with his own directions in point of law, as to its operation; and if he had not done so, it is not improbable that a motion would have been made for a new trial for the omission.

Complaint has been made of something like a want of candour on the part of the Court, in not ruling at once on the former occasion that the Indent could not be upset by parol evidence.  Now, if it had been announced that it was the intention of the plaintff's [sic] counsel to confine himself solely to the production of partial evidence, probably the Court would have decided the point one way or the other; but in the absence of any notification of this kind the Court did not feel itself at liberty to anticipate what might or might not be the course which the plaintiff's counsel would choose to take on a fresh trial.  On the second trial, just disposed of, it was competent for the plaintiff to have produced other evidence of a higher nature than that which had been produced upon the first trial, and the Court could not act upon a supposition that the plaintiff would confine himself to the same character of evidence.  No other description of evidence having been produced at the second trial, the question now is, whether the Indent in question could have been impeached merely by parol testimony.  Upon mature consideration of the question I am of opinion that it could not.

For my own part I disdain all idea of legislating upon any subject brought under the consideration of the Court, and I trust that this Court will never so far forget its province as to take upon itself the powers and functions of the Legislaturs [sic].  Our proceedings are governed either by known written laws, by well settled and adjudged cases, or by usages long sanctioned by the common sense of mankind.  The canons of evidence are the rules of common sense and reason, and are ordained not by any written law, but by the experience of the necessity for their adoption, in the practical administration of justice.

I agree that in this case the Indent produced cannot be treated as an instrument of equal validity with the record of the plaintiff's conviction, but at the same time I apprehend it must, until impeached by evidence of equal validity at the least, be treated as a legal authority for the executive department of this colony to treat every man therein named as a convict felon, for and during the term therein respectively mentioned for his transportation.  I regard it in substance and legal effect as a warrant of execution, conclusive upon the officer who is to act upon it, until it is shown by some other evidence of equal validity, that there is no legal foundation for the matters therein certified, and that until its validity is destroyed by written evidence to control its operation, it is a protection to the officer acting under it.

This part of the world has now been dedicated to the transportation and detention of convict felons for upwards of forty years.  During all that time it is known as matter of history that the only official documents transmitted by the Executive Government of the colony, designating the names, times of trial, and sentences of prisoners therein named, are these instruments called Indents.  They have always been received as genuine official instruments, assented to by the prisoners themselves, and acted upon by the authorities of this Government. So far therefore as usage can sanction the validity of this species of instrument, it has always been regarded as an authentic, genuine, and binding record of the matters therein contained.  Can we now for the first time since the settlement of the colony, break down the only barrier for the protection of public officers in the treatment of persons as felon convicts, transported to this colony under the sanction of so official and public a document; and this too by the loose testimony of non-official persons, speaking from memory.  I apprehend we cannot, and ought not.  These Indents are the best evidence of the state and condition of the persons therein mentioned.  It is upon these alone that the successive Governors of this colony have always acted, and I apprehend that nothing but the original record of conviction, or a certified copy of it, or of some official communication from the Executive Government at home, would deprive the officer acting under it of the protection it affords him in the discharge of his official duty.  If parol evidence alone were admitted to impeach it, it would open a wide door to fraud and perjury, and expose every officer who had any thing to do with a prisoner brought to this country, beginning with the master of the ship, the surgeon superintendent, the officer of the guard, every executive officer, magistrate, and constable here, contributing to his detention as a convict, to an action for false imprisonment.

This certainly is an instrument sui generis, but it must be dealt with as it has been treated by usage, and be upheld not only by the analogies of the law, but from the necessity that exists of regarding it in this distant country, as a formal; valid, binding, and subsisting legal warrant for carrying into execution the judgments and sentences of the law pronounced in the mother country under and by virtue of the Transportation Acts.

There was one head of evidence admitted on the trial, which I take to have been inadmissible, namely, instances of mistakes made in other Indents.  Such evidence could only have the effect of creating an undue prejudice against the validity of the Indent in question, and ought not to have been admitted; because for aught that appeared to the contrary, the Executive Government was in possession of competent proof and information authorising it to correct such mistakes.  This case ought to have been tried by its own peculiar merits, and not fettered by allusions to other cases.

I do not think it necessary to advert to the local ordinance alluded to in argument.  We must look to the question here raised upon general principles, and I am of opinion that for the prisoner's own protection, as well as the officer's acting under them, that the transportation Indents are to be regarded in this country, to all intents and purposes, in like manner as all warrants of execution, legal on the face of them, and founded in lawful jurisdiction, and affording full protection to all officers duly acting under them.

Even assuming that it could be proved to demonstration by the highest possible evidence, that the Indent was erroneous in the particular mentioned, I [line ommitted] detain and treat a man as a prisoner when he knew he was not, would be liable to an action on the case.  This is not the ground of action here.  This is an action of trespass, and the Indent being prima facie of  binding validity, and founded in legal authority, it is a complete protection to the officer acting under it.  The more I have considered this matter, the more I am satisfied of the soundness of the decision with which the Court is called upon to pronounce; and for my own part, though I do not regret the investigation the question has undergone, yet I think, upon more mature reflection, the presiding Judge, on the first trial, ought at once to have ruled that the Indent was a conclusive protection to the defendants acting bona fide under it, and that they could not be answerable for any mistake (if any were really committed in its original concocting); but the point coming suddenly upon the Court at nisi prius, and it being pressed with great earnestness, he thought it his duty to reserve the question for consideration.  I have not thought it necessary to go more elaborately into the reasoning from which my opinion is deduced.  His Honor the Chief Justice has, I find, gone most fully into the subject.  I have had the advantage privately of hearing the masterly and able exposition which he is now about to deliver; in which, I have only to say, I fully concur.  For the reasons I have already stated, I am of opinion, that the verdict ought not to be disturbed.

The Chief Justice. - This was an action of trespass and false imprisonment.  The declaration set forth that the defendants assaulted the plaintiff, and imprisoned him on board the Phoenixhulk, in irons, for the period of six weeks.  The defendants pleaded the general issue under the statutes.

At the trial before the Chief Justice, on the 24th instant, it appeared, from the evidence on the part of the plaintiff, that the defendant Lackay apprehended the plaintiff in the month of September, 1830, as a runaway convict, notified to be such by public advertisement, in the usual way, and conducted him before the defendant, Mr. Hely, the Superintendent of Convicts in the service of the Government, by whose order he was conveyed on board the Phoenixhulk, as was alleged by the witnesses, in the usual way of dealing with prisoners of the crown.  About these facts there was no dispute; and as this was an action of trespass, and the law presumes every man's person to be sacred until the contrary be shewn, it was cast upon the defendants to shew under what authority they apprehended and imprisoned the plaintiff.  Accordingly the defendants gave in evidence, under the general issue, that they were, the one (Mr. Hely), a Justice of the Peace, both by commission and in virtue of his office as Superintendent of Convicts, and the other (Lackay), a constable attached to the office of the Superintendent, and acting ministerially under his orders; that the plaintiff had arrived in this colony in the year 1824, in the Prince Regent, convict ship, and was mustered among the prisoners transported from Ireland; that there was the usual Indent, or written document, accompanying the prisoners, containing the several names of the prisoners, the time and place of their trials, and the terms of their transportation; that among the names was that of ``John Hogan, tried at Tipperary in November, 1823, for insurrection, and transported for seven years;" that the plaintiff admitted that he had come by the Prince Regent, was mustered among the other prisoners, was subsequently dealt with like transported persons, and, among other acts of admitted subjection, had applied for and obtained a ticket-of-leave.  It is not necessary to recapitulate the whole of the evidence; I shall confine myself to so much as may be necessary to raise the dry points of law, which have been submitted to the Court, as grounds for granting a new trial.  To meet the evidence of justification adduced by the defendants, the plaintiff called several witnesses to prove that he was in fact tried in September, 1822, and not in November, 1823, and was sentenced to seven years transportation; which sentence had expired in the year 1829, some months before he was apprehended as a felon transport; and that consequently he was a free subject, at the time he was summarily taken up and committed to the hulk as a runaway prisoner of the crown.  And in corroboration of the testimony which went to impeach the correctness of the Indent, transmitted by the Prince Regent, as to the true time of the conviction by the plaintiff, witnesses were examined who stated that in one or two instances they had known the Indents transmitted from Ireland to be in error, and to have been corrected by correspondence between the local and the home Governments.

In putting the case to the Jury, the Chief Justice stated, in substance, that it had been held by the Judges of the Supreme Court, in granting a new trial in this case, that the Indent transmitted with prisoners, accompanied by proof of identity, established a prima facie case of the sentence in such Indent contained; and that such Indent could not be impeached by oral proofs only, drawn from the memories of witnesses to invalidate it; that the evidence produced on this second trial was merely oral, and, in his opinion, was not sufficient to impeach the Indent, if the Jury should be satisfied that the Indent before the Court was the Indent which had been transmitted by thePrince Regent, and under which the plaintiff had been, and had suffered himself to be, dealt with as a felon transport from Ireland to this colony; and that if there were a mistake in such Indent, as to the true time of transportation of any individual, the defendants could not be held liable for such mistake, but would be protected while acting under it within the scope of their authority.  The Jury found a verdict for the defendants.  Two grounds have been laid for granting a new trial - the first, is for misdirection of the Judge; and the second, for the verdict being contrary to evidence.

In support of these grounds for a new trial, it has been urged, that the plaintiff has some cause to complain that the Court, in granting a new trial, on a former occasion, did not lay down the law, in respect of the legal force of an Indent, with that precision which might have prevented the plaintiff from putting himself to the expense of a new trial; and that the Judge who tried the case the last time, was inconsistent with himself, in first permitting oral testimony to be offered to impeach the validity of the Indent, and afterwards ruling that it could not go the Jury for such purpose; and, as I understood the learned Counsel for the plaintiff yesterday, that the Judge should, to preserve consistency, have nonsuited the plaintiff.  With respect to the law of evidence not being laid down with sufficient exactness, to prevent further litigation, if we have erred, our error has been one of which we must share the responsibility with the Judges at Westminster, who are tender of laying down rules of any sort beyond the immediate exigencies of the particular case which call them forth, and we perhaps may stand excused for not laying down principles too broadly upon a point of evidence which involved the rights of freedom, and which was then, for the first time, raised for the determination of the Court.  My apprehension of the ruling of the Court was, that the testimony of witnesses speaking merely from recollection, was not sufficient in itself to impeach the Indent; I did not apprehend the Court to have gone the length of rejecting such evidence altogether.  The plaintiff might, in addition to such evidence, have produced a certificate of conviction, in the form pointed out by the transportation acts, or he might have produced a copy of the record of his conviction, referring it to the time he insisted on, and then the oral testimony of his witnesses would have gone to the point of his identity.  To have rejected this evidence, in limine, would, I apprehend, without any further ground, have been sufficient for granting a new trial.  As to nonsuiting the plaintiff, that would have been, I conceive, improper.  The plaintiff had made out a strong prima facie case, and had put the defendant upon his proof of justification; and the credit due to such proof was clearly a question for the Jury.  The fact of the Indent offered in evidence being the Indent which arrived by the Prince Regent; of the plaintiff's coming as a transported felon in that ship; in short, of his identity, and liability, to be dealt with as a prisoner, under such Indent, were all matters of evidence, which, however clear and indisputable they might be, were still matters of evidence for the Jury, and not of law for the Judge.  The Judge ruled, that if the Jury found such facts, that then the law was with the defendants; but the facts, as facts, were left entirely to the Jury.  I pass on to the substantial points for our present consideration, which are, whether, what is termed an Indent, can be invalidated by oral testimony, such as was adduced at the last trial of this case; and if it cannot be so invalidated, whether it was a sufficient justification of the defendants' acting under it, in the manner they had proved at the trial.  It is contended that this instrument is unknown to the laws of England, and is one upon which the books on evidence are quite silent - that it has no authority, except a vague usage in this colony, supported by a loose practice in the Courts - and, that the legislature of the colony has impliedly negatived such authority, by enacting, that under certain circumstances, and in certain cases only, it should be made to supply the place of a record of conviction.  This, in substance, is the amount of the objections raised against giving to the Indent the authority which it has received hitherto, both in this colony and in this Court.  With respect to the silence of the books, I apprehend that is easily accounted for, in the nature of the instrument.  An Indent is addressed by the Executive Government of some part of the United Kingdom, to the Government in some penal settlement.  It is in the nature of a warrant for receiving and detaining a number of persons transported out of the United Kingdom.  Such an instrument is not likely to come into consideration in the Courts at home, and therefore the silence of adjudicated cases, or of text books, furnishes no fair argument against its validity in the penal settlement to which it is sent. - The transportation laws are judicially known to the Court; they form an important part of the penal code of the kingdom.  The same Acts of Parliament which inflict transportation as a punishment for crime, expressly point out New South Wales as the settlement to which offenders may be transported.  The Act in force, when the plaintiff was transported, was the 24th Geo. III. cap. 56.  Neither that Act, nor the present Transportation Act, 5th Geo. IV. cap. 84, particularises the manner in which a prisoner, under sentence of transportation, shall be transmitted to the place of his exile.  It is left to the Government to apply suitable means in carrying the law into effect.  It is a well known principle of the law, in giving effect to mandatory statutes, that wherever a power is given, every thing necessary to the making of it effectual is given by implication.  Quando lex aliquid mandatur, mandatur et emne, per quod devenitur ad illad.  How could the Government carry the judgment of the law into effect, in transporting prisoners, but by transmitting, together with the offenders themselves, some authentic document, identifying their persons, and defining the extent of their punishment?  It will be perceived, by referring to the Transportation Acts, that Parliament has, with great precision, defined and directed all the necessary steps to be taken up to the time of embarking the convicts for the new world, and there it has stopped; purposely leaving all ulterior steps to the Executive to pursue, as a new and unforeseen state of things might require, to give effect to the law.  It devolves, as a constitutional duty, upon the Government, to execute the laws in a proper manner; and the Government, in the performance of this constitutional obligation, as well as in the fulfilment of that particular principle in the law, which supplies, by intendment, every thing necessary to the due execution of a statute, created and put in motion the specific instrument called an Indent,which may be described as a general warrant, directed by the Government at home to the Government of the penal colony, containing the names, the crimes; and the sentences, of the whole body of prisoners, transported in one ship; together with such outward descriptions of their persons as might be necessary to identify them.  I am not aware, even if I were at liberty to offer any opinion upon the form of such an instrument, that any one could be better adapted to the purpose for which it was intended.  It is, I think, better than copies of records would be; they would not identify the person; and they would moreover be as liable to clerical mistakes, and to greater liability to loss or accident, on account of their necessary number.  The Indent professes, upon the face of it, to be made up from the records of Courts, and it is signed by the regular officer, appointed by the Government for such purpose.  An Indent, or something equivalent to an Indent, then, arises out of the very nature of things, and forms a necessary consequence of the provisions of the law which authorises transportation, of the sentence of the Court which adjudges it, and of the duty of the Government which enforces it.  From the earliest records of the Court of this colony, from the reports of history, and from the experience of all persons who have been before this Court, the Indents are the only documents which have every been transmitted from the United Kingdom, as warrants to the local Government for receiving and detaining the thousands of prisoners who have been, during a period of forty years, transported to these shores.  I apprehend that the Indent, as the act of the Executive, necessarily growing out of the commands of the Legislature, would, on that account, be considered as a competent warrant of the law.  But there is a local usage also, arising out of local circumstances, which adds strength to its authority, and gives it the force of an admitted legal instrument.  And here, it may be proper to notice an error which has occurred in supposing that the authority of the Indent is entirely founded on a rule of evidence laid down by this Court.  The Court found the Indent as an instrument of admitted force, before it entered upon its functions.  It was acted upon by the general consent of the colony.  Every society must possess within itself the elements of municipal legislation.  Local customs arise out of new relations of men towards each other, and when they are generally adopted, and once recognised, they acquire the binding obligation of law.  When the Supreme Court was first opened, it found the Indent already recognised as the criminal register of the colony for transported offenders; as the only warrant upon which the Government held the prisoner in subjection; as the only proof upon which the prisoner could claim his freedom at the expiration of his sentence.  Upon what basis, but that of local usage, does this Court admit the evidence of persons who would be rejected as witnesses at Westminster?  Upon the basis of a local custom, growing out of the necessity of the case; and I have occasion to believe that local customs in the Colonies have been ruled in the Lords of the Council, not to be subject to the strict question of time.  Upon these united bases, the power of the Executive to carry the mandate of the law into effect, by suitable means, and the general consent and custom of the Colony to consider the indent in the light of an authentic instrument, sufficient for the purposes which it professes, I think the Court is fully borne out in the power of the Executive to carry the law of transportation into effect, by suitable means, and the general consent and custom of the colony in regarding the Indent in the light of an established instrument, sufficient for the purposes which it professes, I consider that the Court was fully borne out in holding the Indent to be unimpeachable by oral proofs, drawn from the recollections of witnesses in this colony.  But there is another reason of much force also, which has been urged by the Counsel for the defendants, I mean the argument ab inconvenienti.  To bring this argument at once to a practical test, let us suppose that the prisoners in the convict barracks (who are deeply interested, and have a right to enquire how far they are liable to be dealt with at all under a mere Indent) were to apply, in the person of one of their fellow prisoners, for a writ of Habeas Corpus.  By a fundamental maxim of the law every man is presumed to be free until it can be shewn that his liberty is liable to be restrained, and that the party restraining him has a legal authority for so doing.  Assuming such a writ of Habeas Corpus to issue, the return which must be made would be, that the prisoner was a transported felon, and was detained under the authority of the law, and the Indent would be the only warrant which could be returned.  Supposing such return made, what would be the legal effect of it?  I listened with much attention to the arguments of the Counsel for the plaintiff, to catch if I could, the distinct view in which he regarded the Indent, and the value which he attached to it.  If I correctly apprehended his argument, it did not go absolutely to consider the Indent as a mere nullity, but something which might be impeached, and rendered a nullity, and holding, in the mean time, a questionable and precarious validity.  But this way of regarding it is so purely gratuitous in itself, and so entirely unsupported by any analogy drawn from the law in other cases, that I am of opinion, if this be the only point of view in which an Indent can be regarded, it is an instrument of no legal validity; and that it would furnish no sufficient return to a writ of Habeas Corpus, nor any justification for detaining any one prisoner a moment, although he might have arrived within the colony but yesterday under sentence of transportation for life.  It is either a lawful warrant, or it is not a lawful warrant; it is either clothed with the authority and immunity of a warrant, or it has no authority or immunity whatever.  I know of no middle position which it can hold.  Such a position is unknown to the law.  There was another argument addressed to the Court, upon which much stress was laid, and which is certainly entitled to consideration.  The local Ordinance, 11 Geo. IV. No. 12, Sect. 7. has been referred to, in which it is enacted, that the production of the Indent, or a copy of so much as may be required, shall be sufficient evidence at the trial of any offender under that ordinance, of the previous conviction of the offender in such Indent mentioned; and it is contended, that this enactment of the local legislature, is equivalent to a legislative declaration that such was not the law before.  ``If it were," it is asked, ``Why pass this law?"  I do not consider this reasoning to be conclusive.  The Supreme Court had decided upon many occasions before the Ordinance was passed, that the production of the Indent, together with proof of the party's identity; and of his submitting to be dealt with as the person in such Indent mentioned, was the best evidence which the nature of the case would admit, of such party being a felon under sentence of transportation for the time in the Indent mentioned.  It had so decided upon the strength of its judicial knowledge, that Acts of Parliament had sanctioned transportation to New South Wales, that the Courts in the parent country had adjudged it; that it had been left to the Executive Government to carry it into effect; and that the form and manner adopted by the Government, was an Indent.  It did not require the sanction of the local Legislature to give a legal effect to this instrument, so far as it was necessary to its iperfecting [sic] the sentence of the law, and performing the function for which it was intended.  It derived that sanction from the transportation Acts, and the common consequences of law, applicable to them as well as to all other mandatory Acts of Parliament.  I am not quite sure, however, but that the local Legislature, in creating new offences and new punishments, acted desirably in pointing out and legalizing the proof of a previous conviction abroad, upon which they intended to found cumulative punishments, independently of the English statutes, and entirely local in their nature.  It will be observed, that the proofs pointed out in that Act, are expressly limited to ``the purposes of the Act," and do not touch the general question of evidence.  Besides it is a well established distinction, that some statutes are affirmative of the common law, as it stood before, and introduce no new provisions.  The transportation Acts furnish instances of separate subsisting provisions similar in their nature, upon the same subject; and one instance of this kind occurs in respect of what shall be deemed sufficient evidence of previous conviction (5 Geo. IV. cap. 84. 7 and 8 Geo. IV. cap. 29).  But it is not necessary to go further into this point; there is nothing in the local Ordinance which expressly negatives the general rule of evidence, as it had been settled by the Supreme Court, under established usage before the Ordinance was passed; and I rather regard it as in affirmance of, and in keeping with the rule previously adopted by this Court.

There is a second general ground of objection to the direction of the Judge at the trial, which is, that the Judge told the Jury that the defendant was an irresponsible officer or agent, and as such he was entitled to their verdict.  I can only say, that if I so ruled, at the trial, I must have been asleep, for I have no such ruling on my notes, which are very particular, and were made at the moment; and not only have I no such note, but I have no recollection of it; and it is opposed to the whole course of my judicial opinions, since I have sat upon this bench, and to the very particular opinion which I had occasion to express of the acts of this same defendant, in a very recent case which was tried in this same term.  To protect my opinions from further misapprehension, I have put upon paper what I now hold to be the law upon the point, and what I trust, upon candid consideration, will be found to be in strict keeping with what I had before expressed from the Bench, in granting a new trial; and at the trial which afterwards took place before me at nisi prius, I hold, first, that the sam[e] of the plaintiff's evidence, produced at the second trial, was of the same nature merely as that which had been produced at the former trial, multiplied only by the number of witnesses, and that it did not satisfy the ruling of the Court, as to being the best evidence which ought to be produced, and that the defendant was entitled to a verdict on that ground.  I hold also, that an Indent is in the nature of a warrant; and if it be good upon the face of it, although there might be a latent mistake in it, as to time or other particular, it is not the less a protection to the officer acting in obedience to it, and within the sphere of his authority.  It is this latter point which probably gave rise to the misapprehension, as to the terms of my ruling at the trial.  It will, however, be seen in the hasty printed report of what fell from the bench in granting a new trial, that I then expressed an opinion that the Superintendent of Convicts could not dispute the correctness of the Indent; that it was his warrant, or it was nothing to him.  I expressed the same opinion at the trial; because part of the plaintiff's evidence went to shew that the plaintiff had offered to produce evidence of his being free, and that the defendant, Hely, had declined to receive it.  I am of the same opinion now, and I feel it to have been confirmed and strengthened by the discussion which the subject has undergone, and the opportunity afforded me for a more matured consideration.  The question appears to be r[e]solved into a series of propositions depending upon each other.  Has Parliament sanctioned transportation from Ireland to this Colony?  Are the Courts there authorised to order offenders to be so transported?  Has the Government of Ireland the power to carry such orders into effect?  And has that Government, in the absence of any specific direction of the Act of Parliament, enforced such order in the usual manner?  Is the Government of this Colony authorised and bound to receive persons so transported?  Was the Indent, in this particular case, transmitted by the Government of Ireland to the local Government?  Is it the Indent under which the plaintiff was transported to this Colony, and is he the identical person named in the Indent?  If these several questions be answered in the affirmative, then I apprehend that the Indent becomes, of necessity, clothed with the distinctive marks and qualities of a warrant, issued by competent authority to competent authority, until it is impeached and invalidated; and while it is in force, it affords all those protections to persons acting under, and in conformity with it, which the law in principle attaches to the acts of all the accredited officers, acting within the pale of their authority.  It is a plain first principle of the common law, founded in common justice, that wherever the law imposes a duty, it affords protection.  Whenever an officer is called upon, in the course of this duty, to perform some act, and holds a warrant for such act, from a competent authority, and legal upon the face of it, such warrant will afford him protection from the consequences of any latent mistakes.  If I am correct in this general principle, and that I am so will be seen, upon a careful examination of those ancient and immemorial doctrines of the law, upon which protection and indemnity have always been afforded to executive officers, acting in obedience to their precepts, and within the pale of their authority, I cannot feel the force of any difference between recent offices and such as are of older establishment; between a Superintendent of Convicts, and a Sheriff or his officers.  If the principle be sound in itself, why should it not apply to an Indent, issuing under the force of the law, and from a competent power?  The silence of cases proves nothing; they are not silent upon the principle, which is affirmed and illustrated by many instances; and the reason why the particular instance of an Indent is not among them, is because such an instrument is strictly local, and confined in its functions to the penal Colony.  If then the process of a Court, regular in its form, be a protection to the officer, a multo multo fortiori, should a regular Indent, which is the only warrant for the safe custody of the whole prison population of the Colony, be a protection to all those officers who are called upon, and whose duty it is to act under, and in obedience to, such Indent.  The only question then becomes, whether the defendants are within the protection of the Indent?  This point was not much pressed at the trial.  It was proved that the defendant, Mr. Hely, was the Superintendent of Convicts, an officer especially recognized by the Transportation Acts, and that he had the general custody of unassigned prisoners; that he had reclaimed the services of the plaintiff, as a runaway, and required him to return to the Prisoners' Barracks; but that he had refused to do, alleging, as an excuse, that he was a free man.  These were facts proper for the consideration of the Jury, and they were left to them to say, whether the defendants were acting in execution of their duty at the time they apprehended and imprisoned the plaintiff, and whether they had dealt with him in the usual way of dealing with absconding prisoners.  The Jury, by their verdict, have concluded these facts of the case, and I am of opinion, upon the several grounds of law, which have been urged in support of the motion for a new trial, that a new trial ought not to be granted. - Motion refused.



[1 ] See also Hogan v. Brown, 1830; and seeAustralian, 4 and 12 February 1831.

Eventually, Governor Bourke admitted that there had been an error in Hogan's case.  The governor wrote to Viscount Goderich on 25 January 1833 (Historical Records of Australia, Series 1, Vol. 17, p. 21) saying that Hogan had been sentenced in Ireland to seven years' transportation under the Insurrection Act.  The sentence commence on 18 September 1822.  Hogan's claim to be free in 1829 should have been accepted, but he was sentenced by a magistrate to punishment and also confined on the orders of the Principal Superintendent of Convicts until 1830.  He sued both the Superintendent and the magistrate but gained nothing from the actions.  These actions, said the governor, were instigated by an attorney, and now the attorney was behind a claim for enormous costs.  Governor Bourke thought that he should have acted more respectfully, by not suing and not resisting authority: ``a less obnoxious demeanor would have obtained from him all due consideration".  Now he deserved some small compensation for the government's error, and £50 was sufficient.

[2 ] R. v. Badderly and Howard1828.

[3 ] For comments, see Australian, 19 February 1831.

[4 ] Justice Dowling recorded the principle in this day's hearing as follows (Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 48): "The indent under which convicts are transported to this country is in the nature of a warrant of Execution and is prima facie conclusive evidence of the term of a prisoners sentence of Transportation and cannot be impeached by parol evidence."

Published by the Division of Law, Macquarie University