Skip to Content

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

Goodwin v. Wilson [1834] NSWSupC 43

magistrates, action against - summary offences - police, powers of

Supreme Court of New South Wales

Dowling J., 26 March 1834

Source: Australian, 4 April 1834

Wednesday. - Before Mr. Justice Dowling, and a Special Jury.

Goodwin v. Wilson. - This was an action brought to recover damages for a violent assault committed by the defendant, the first Police Magistrate, upon the plaintiff.

It will be remembered that this case occupied the attention of the public some months since on the occasion of an enquiry before the Sydney Bench, when the whole evidence given at the trial on Wednesday was published at length, and the case fully commented upon.  The circumstances therefore do not require repetition, the witnesses for the plaintiff having deposed to the same effect as they did at the Police Office, and with which our readers are familiar.

The Solicitor General submitted to His Honor that the defendant was entitled to a nonsuit, as it appeared by the evidence adduced that the action was not commenced within the time limited by the 74th section of the Sydney Police Act, viz. two months.  It was proved that the occurrence, which was the cause of action, took place on the 19th of October, and the writ was not sued out until the 22d of January, a period of more than three months.  He therefore confidently contended that there must be a nonsuit, as it was fully proved that Colonel Wilson was acting in execution of his duty under that Act, nay in pursuance of the oath prescribed in the 2d section of that Act, which bound him to execute all the powers and duties of a Justice of the Peace, under and by virtue of that Act, which oath is still further enforced by the 3d section, ``that it shall be the duty of the said Justice to inpress [sic] all tumults, riots, affrays, or breaches of the peace, all public nuisances, vagrancies, and offences, against the law, and to uphold all regulations, &c. for that management and discipline of convicts."  It was fully proved by the plaintiff's witnesses, even the assigned servant of Goodwin himself, that he was walking the horse up and down the public street, that he was airing him for fifteen minutes before Colonel Wilson came up and made him his prisoner.  This was clearly in breach of the 15th section of the Police Act, which enacts that ``if any person or persons shall in any street or public way within the town of Sydney, ride any horse, mare, or gelding, for the purpose of airing, exercising, trying, or shewing, &c." any person so offending, upon conviction before any Justice of the Peace, or upon view of any such Justice, shall forfeit and pay a sum not exceeding 40s, nor less than £5.  Colonel Wilson, therefore, on his view, was justified under the 72d section in taking this man into custody, he being a prisoner; and it would be a breach of his oath and his duty if he did not do so.  And when Goodwin came up to interpose in preventing him from doing his duty, Goodwin acted in direct violation of the 8th section of the Police Act, which enacts ``that no person shall assault or resist any person belonging to the said Police force, in the execution of his duty," &c.  He is on those grounds clearly entitled to the protection of the Act, and consequently plaintiff should be nonsuited.

His Honor said he would reserve the point for the consideration of the Judges in banco, but would not stop the case now.

The Solicitor General then addressed the Jury, and left the case in their hands.

His Honor Mr. Justice Dowling summed up the case at some length, stating the effect of the evidence, and giving his own impressions upon portions of it, in all of which it appeared that he had imbibed an unfavorable view of defendant's conduct in the affair, out of which the action arose.  His Honor laid down two points of law for the guidance of the Jury; first, that the clause in the Police Act against exercising and airing horses in the streets, was not intended to prevent grooms, &c. from so doing, unless done actually for the purpose of selling their horses; and secondly that the first Police Magistrate did not come within the meaning of the word ``police force" used in the Act, and consequently was not armed with the authority, nor shielded by the protection given to those to whom they did refer.  His Honor also left it as a matter of fact to the Jury, whether the defendant conceived he was acting in the execution of his duty at the time of the assault.

The Jury found a verdict for plaintiff, damages 40s. and added to their finding that they were of opinion that the defendant was intending to act in the execution of his duty.

Counsel for plaintiff, Wentworth and Keith; for defendant, the Solicitor General,

 

Dowling J., 26 March 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, vol. 94, 2/3277, attached to p. 99[ 1]

 

This was an action of assault & false imprisonment against a magistrate.

The alleged assault was committed on the 19th Oct. 1833.  The notice of action was dated on 13th Nov. 1833.  Served on 2d December 1833 & the summons taken out on the 22nd January following.

The deft, who relied on the local ordinance 4. W. 4. No. 7. went for a nonsuit on the ground that the action was brought too late - two months having elapsed from the time of the fact committed and the suing out the summons.

By the 74 Sec. of the local ordinance[2 ] any action brought against a party for anything done in pursuance of that ordinance must be brought within 2 calendar months from the time the act complained of was committed.

I refused to nonsuit until the Jury should determine whether the act complained of was done in pursuance of the ordinance, or done wholly and of the JPs jurisdiction, & without the colour of office, & that whichever way it was determined, I should then give no opinion but save the point.

Case. - By s.15. of the local ordinance any person found airing or exercising horses in the public streets of Sydney is liable to a certain pecuniary penalty, & may be convicted either in the view of a justice or before any other justice.

By s.8. of same ordinance any person obstructing the police in the due execution of the authority given by the ordinance, is liable to another pecuniary penalty.

On the 19th Oct. an assigned servant of the Plf was airing a horse of his in Prince's Street.  The deft passing by having ascertained the fact, & that the rider was an assigned servant, -- attempted to seize him.  The Plf came up to ascertain what was the matter & sd. that if his servant had offended in any way he should go to the Police office, but he must insist that his the Plf's horse should not go.  The Deft became angry & being on horseback attempted to ride over the Plf.  A struggle ensued.  The deft dismounted; & seizing the boy with one hand & the Plf with another dragged them both along the street 20 or 30 yards, when the Plf get loose & returned home.  The servant was taken to the watchouse [sic] & afterwards discharged.

I left it to the Jury to say upon the evidence whether the Deft at the time he attempted to ride down the Plf. & seized him in the manner proved, was acting within the scope of his authority, or under colour of his office.  I pointed out the provisions of the 8th, 15th & 74th Sections of the ordinance.  I told them that if the Plf was considered as assisting the Deft in the due execution of his office in preventing the Deft from seizing his servant (being a prisoner of the Crown) for a violation of the 16th Section, still the deft could not be justified in assaulting Plf, & seizing him in the manner proved - there being another mode of proceeding against him for the alleged destruction.  If they thought he was wholly acting without any authority, & without colour as a justice, then he was not entitled to the protection of the ordinance which required the action be brot. within two months; but otherwise if acting bonâ fide as a justice, though mistaken in his authority, then he would be entitled to the protection contended for.

The Jury found for the Plf damages 40/-. but added

``We are of opinion that he intended to act under the Police Act; but exceeded his authority."

I saved the point as to qu whether the action was brought in sufficient time & gave the Deft leave to move to enter a nonsuit.

 

In banco, 12 April 1834

Source: Sydney Gazette, 12 April 1834

 

Goodwin v. Wilson, J. P. - This action it may be remembered was tried at the late sittings in term, before Mr. Justice Dowling, and a Special Jury, and was for an assault and illegal imprisonment. - Verdict for plaintiff - Damages 40s.

The Solicitor General moved that the verdict be set aside, on the ground that the action was not brought within the time limited by the local ordinance, and also that a written notice of action was not served upon the defendant until more than one month had elapsed after the cause of action had arisen, which was the prescribed period in the same enactment.  The learned gentleman likewise contended that the defendant had intended to act in virtue of his office, although he had exceeded his jurisdiction, and he was therefore entitled to the protective clause of the Act in that case made and provided.  In support of his arguments, the Solicitor General quoted at considerable length from the several legal authorities.

Mr. Wentworth rose to object to the motion.  With regard to the first objection raised, that was a misconception of the Solicitor General, who would find, when the learned Judge's notes came to be referred to, it was on the 13th, and not the 30th November, as stated by him, that notice of action had been given.  But this was a case in which it was superfluous to give notice at all, as the defendant had clearly acted where he had no jurisdiction whatever.  If he had jurisdiction at all, he should have exercised it over the plaintiff, or his servant, and not over the horse, over which he could have no controul.  In support of this view of the case, the learned gentleman cited from 6 Barnwell and Creswell, p. 361, where in an action brought against two parish officers of Stroud, seizing a dromedary out of a stable, which had been exhibited for gain in the streets, and was declared a nuisance, it was held they had exceeded their authority.  The construction which the Solicitor General had placed on that clause of the Police Act, under which he sought to justify the defendant, was most absurd; for it could not have been contemplated by the Act to prevent any individual from exercising himself, or his horse in peaceable manner in the streets; but was expressly intended to restrain furious driving in populous towns, and consequently to prevent the lives of His Majesty's subjects from being in danger.

The Solicitor General in reply, contended, that the Court could not enquire whether the act was a hardship or not.  The Act clearly contained the prohibition, which was a necessary one, as no person could otherwise walk up and down the streets in safety.

 

Dowling and Burton JJ, 19 April 1834

Source: Australian, 21 April 1834[3 ]

 

Goodwin v. Wilson.  - Mr. Justice Burton delivered the judgment of the Court in this case.  His Honor, after stating the facts proved in evidence, (which are too well known to need repetition) proceeded to state the opinion of the Court, that there was no cause shewn to disturb the verdict. - It was not contended that the conduct of the defendant was justifiable in law, but it was urged that as he was acting under the Police Act, he was entitled to the protection of that Act, and to the notice of action which had not been given in the present case.  Authority was cited to shew that if a Magistrate having good reason to suppose he had jurisdiction, though in point of fact he had none, committed an illegal act, he was entitled to notice of action.  But the present case was quite distinct, the Magistrate had no jurisdiction, and if he had, he did not act in the way which the law pointed out.  There could be no question that the riding the horse up and down the street was illegal under the Police Act, and the boy on his back was accordingly guilty of an offence for which he was punishable.  But when Goodwin interfered or came up, the defendant was not justified either by the Act or by the Common Law in attempting to seize and arrest him.  The defendant did not come within the meaning of the words ``police force" in the Act - the Governor was authorised to appoint Magistrates for the town, those Magistrates were authorised to appoint a ``police force," constables &c.  It was quite evident that the Magistrate himself could not be part of that ``police force" himself, but even if he were, the mode of his acting was not justified by the Act.  The Jury had certainly found that defendant considered he was acting under the Police Act --that probably had a material influence in their estimate of damages, -- but it did not prevent the Court from forming their opinion with reference to the law of the case. - They had done so, and thought the verdict should not be disturbed.

 

Forbes C.J., 19 April 1834

Source: Dowling, Proceedings of the Supreme Court, vol. 95, State Records of New South Wales, 2/3278

 

[p. 61] Minutes of the Chief Justice's opinions in the following cases:- ...[4 ]

 

[p. 62] Forbes  C J.  The single question is whether the Deft is within the protection of the 72d clause of the local act of the Gov & Council 4. Wm 4 No. 7 the police act for Sydney.  That is, the action not having been commenced within two months from the Act done is not barred by that ordinance that the Magistrate acted illegally is hardly to be disputed.  Assuming that he was acting as one of the Police, especially charged with having the act carried into operation [p. 63], and for such purpose I think he was so acting,[ 5] yet he travelled quite beyond his jurisdiction, both in the subject matter, and in the manner of executing his authority.  The offence was the boy's, who rode the horse for the purpose of  airing.  Quoad this offence the Magistrate had jurisdiction, & might under a view have fined, or perhaps have directed the offender to be detained but it does not appear that the plf came in any manner within the provisions of the act, unless it be affirmed that he resisted the Magistrate in making inquiry respecting the offence of the boy, which is not supported by any evidence.  The Magistrate rode at the plf & seized him by the collar without a legal cause for so doing, & was therefore a trespasser.  Still, however, the question remains whether he believed himself to be acting, ``in pursuance of the local ordinance."  The best way of considering this [p. 64]question is, is by applying the test laid down by Lord Kenyon in these words ``it has often been held, that a constable acting colore officii, is not protected by the statute, where this act is of such a nature that the office gives him no authority to do it, in then doing that act he is not to be considered as an officer; - but where a man doing an act within the limit of his authority, exercises that authority improperly, or abuses the discretion placed  in him to such cases the statute extends.[6 ] I see this case referred to in 9 Earl.  The case of Beeching and Sides[ 7] does not impugn their distinction.  In that case the arrest of the plf would have been right, if there had been no claim of property.  The act done would have been lawful of the facts supported it.  But the acts of Col. Wilson were altogether unlawful, and not justifiable under any fair view of the [p. 65] case, whatever he may have believed.  Why endeavour to ride down the plf?  Why seize him at all?  He had no jurisdiction what over him.  There is not any evidence of his rescuing the boy, or resisting the Magistrate, in any inquiry he might think fit to make about the purpose of his riding the horse.  There was no authority to seize the horse, and instead of riding at the plf, the deft should have prosecuted his inquiries in a proper measure, and not have committed a breach of the peace himself.

It is objectionable in many points of view, for a Magistrate to becomes the executioner of his own process.  He makes himself a party, in a cause over which the other party has a right to claim his cool and deliberate adjudication.  Disposed as I should feel to strain the construction of the local act, to protect a Magistrate [p. 66] acting bona fide, & dispassionately, however mistakenly, yet I could not go along with a magistrate stepping down from their judicial seal, & with the constable staff in his hand, passing over beyond the bounds which would be allowed to that ministerial officer.  He must take all the consequences upon himself.  I was not for disturbing the verdict.  The opinion of the jury, if the question of fact were left to them, whether the magistrate supposed he was acting in pursuance of his duty, should have ended in an acquittal.  But I do not think it was a question of fact for them nakedly to determine whether the particular facts of the case were a were not such, as being liable to different [p. 67] constructions, & to being viewed under different aspects, were received in one or the other light by the deft so as to raise a presumption that he had or had not reasonable ground for believing himself to be acting in pursuance of his office, were questions for the jury under the direction of the judge.  But the facts do not admit of being viewed in any way that would warrant the defts seizing the plf in the manner he did.  In the language of Lord Kenyon, "the act was of such a nature, that his office gave him no authority to do it", & therefore the jury could not legally presume, what could not legally be the fact.

Rule discharged.

 

Notes

[1 ] The trial notes are at pp 99-127 of Dowling, Proceedings of the Supreme Court, State Records of New South Wales, vol. 94, 2/3277.  The notes reproduced here are attached to p. 99.

[2 ] Marginal note in manuscript:  Police Act.

[3 ] See also Sydney Gazette, 22 April 1834.

[4 ] These notes were apparently prepared by Forbes C.J., but not delivered.

[5 ]  Marginal note in manuscript: 2 Hawk P.C. v. 2. 3d Id. 174.  Dalb. C.

[6 ]  Marginal note in manuscript: Allcock v. Andrews 2 Ess. 341.

[7 ]  Marginal note in manuscript: 9 B & C 808-9.

Published by the Division of Law, Macquarie University