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

McLaughlin v. Parrott [1834] NSWSupC 98

malicious prosecution - false imprisonment

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 20 September 1834

Source: Sydney Gazette, 25 September 1834[1 ]

McLaughlin v. Parrott. - Mr. Justice Dowling read his notes of this case, which was an action instituted to recover compensation in damages for a malicious prosecution for felony, and unjust imprisonment.  The defendant suspecting that a bullock of his, was in the plaintiff's herd, gave information upon oath to that effect, before James Glennie, Esq. J. P. who granted a search warrant thereupon.  The defendant accompanied the constable who was charged with the execution of this warrant, and previous to their carrying the search into effect, they placed the plaintiff in handcuffs for about three hours, at the expiration of which time, the defendant having found out that the suspected animal was not his property, released the plaintiff from custody, and departed, expressing sorrow for what had happened.  Upon the trial, the defendant's counsel urged the court to grant a non-suit, on the ground that the information said to have been made before the magistrate when the warrant was granted, was not produced in evidence, but the learned Judge would not stop the case in that stage from going to the jury, but would reserve the point for after consideration should it be necessary.  The Jury found a verdict for the plaintiff, with £40 damages.  Mr. Norton was now heard upon the point saved, and he cited a case from the 2d Starkie, in which the production of the information, and not the warrant alone in a case of malicious prosecution, was held to be necessary.  Mr. Foster, on the other side contended, that although such an argument would have held good if the defendant had merely given the information, without pursuing the case any farther; yet, there was an after averment in the declaration, which had been proved in evidence, that the defendant had accompanied the constable, and actually assisted in placing the plaintiff in handcuffs, previous to making the search, expressly contrary to the terms of the warrant itself.

The Court was of opinion that the warrant was not sufficiently explanatory, to fix upon the defendant, the making of a charge of felony against the plaintiff, and that therefore, the production in evidence of the information upon which that warrant was granted, was absolutely necessary.  From the vague nature of the warrant, the Court was in doubt whether there had been a charge of felony preferred against the plaintiff, or not.  Leave to enter a nonsuit was therefore granted.

 

Notes

[1 ] See also Sydney Herald, 25 September 1834; Australian, 23 September 1834.  On 26 September 1834, the Australian stated that the Herald's report of the case was quite wrong: the Herald claimed that the court had decided not to interfere with the verdict, whereas it did do so.  The Australian criticised the court's supposed misuse of nonsuit.

For notes of the original trial, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 190.  At p. 199, Dowling J. recorded the commencement of his summing up as follows: ``There must be either express or implied malice.  Malice may be implied, if there is no reasonable or probable cause - & it lies upon the deft to shew such circumstances as wd. shew a reasonable or probable cause."

Published by the Division of Law, Macquarie University