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

Thurlow v Lewis [1835] NSWSupC 55

malicious prosecution - police, conduct of - search warrant, malicious obtaining of

Supreme Court of New South Wales

Dowling J., 10 July 1835

Source: Sydney Gazette, 16 July 1835[1 ]

Before Mr. Justice Dowling, and Messrs. J. B. Bettington,

and J. E. Manning, Assessors.

Thurlow v. Lewis - This was an action on the case brought by the plaintiff, Articled Clerk to Mr Charles Henry Chambers, an Attorney of the Supreme Court, against the defendant, Master of the Government brig Governor Phillip, to recover compensation in damages, for the latter having, without any sufficient cause, maliciously obtained a search warrant from Charles Windeyer, Esq., Second Police Magistrate by virtue of which the premises of the plaintiff were entered by police officers, and searched for certain goods alleged to have been stolen from the defendant.  The damages were laid at £250.

Mr. Foster having opened the pleadings, Mr. Wentworth rose to state the case to the Assessors.  The learned gentleman observed that the plaintiff in the case was, from the peculiar circumstances in which he stood, compelled to resort to the present step as the only one he could adopt to vindicate his character from the serious imputation cast on it by the conduct of the defendant.  The plaintiff was, as they had heard, a young gentleman qualifying himself for admission into the honorable and learned profession of the bar, and it was of the very first moment to him, under such circumstances, that his character should be purged of the crime attributed to him by the defendant.  Mr. Wentworth having detailed the history of the transaction, as it for the most part afterwards appeared in evidence, proceeded to call the following witnesses.

Charles Windeyer, Esq. Being sworn, said I am Second Police Magistrate of Sydney; I recollect a person who stated his name to be Lewis, applying to me for some process against the plaintiff; I think this was in the month of April last; there had been a previous application made to me on the same subject, by Mrs. Lewis, in the previous month of February; she stated her house had been robbed, and that her suspicions of the robbery rested on her next door neighbour; she mentioned to me the short period she had been from home prior to the commission of the robbery, and some other facilities, which did not appear to me to be pregnant enough with suspicion against the party, and therefore I refused to grant the warrant; I heard no more of the circumstance until it was reported to me by some of the police that part of the property had been found; the articles alleged to have been stolen, were a watch, spoons, and other articles of plate; they were plated articles which were found in a beaten state, as if the parties had been trying their value; it was after that in the month of April, Mr. Lewis applied to me; I had ten forgotten the circumstance, but he recalled it to my recollection, by going over the same ground as his wife had formerly done; I enquired whether there was any additional ground for suspicion; Mrs. Lewis said there was; it was that a boy or girl in her service had seen a watch hanging up in Mr. Thurlow's house, which corresponded with the description of the watch stolen from her house; upon this additional circumstance being mentioned, I directed Mrs. Lewis to go into the adjoining office, for the purpose of having her affidavit prepared; the affidavit (now produced) was sworn before me by Mrs. Lewis; a search warrant was granted on that affidavit; I afterwards saw Mr. and Mrs. Lewis, but I forget whether it was on this particular matter; I have a doubt upon the subject; I am not clear whether it had reference to that, or to a case of assault; I have an impression that the latter occasion of my seeing the parties did not take the form of a direct application to me for further process against the plaintiff.

Cross examined - I have seen Mr. Lewis four or five times on justice business; on  one of those occasions Mrs. Lewis complained of an assault committed upon her by Mr. Thurlow; I have not a distinct recollection whether that gentleman was bound over to keep the peace, or committed to take his trial; the assault case was the last proceeding between the parties before me; in granting the search warrant, I was also influenced by some information from the Chief Constable, or some other officer of the police; the servant mentioned by Mrs. Lewis, as having seen the watch, was brought before me; he was either examined, or his mistress stated in his presence the substance of what I have before sworn, and he confirmed it; I intended to have taken his affidavit also, but in the hurry of business, it was forgotten; Mr. Lewis knew nothing of the circumstance, he merely brought it to my recollection; he made no application, for I stopped him in his recital, and requested him to send Mrs. Lewis to me; she was I think, in attendance in the office, and he brought her to me.

Mr. Robert Foster being sworn said I am an attorney of the Supreme Court; I was present at Mr. Thurlow's house when a search warrant was executed there in April last; it was in Erskine-street; Mr. Thurlow sent for me to see what took place on that occasion; Captain Lewis, and two constables made that search; it was in the day time, between two and four o'clock in the afternoon; I saw the search made under the direction of Captain Lewis, and saw him direct the attention of the officers to different parts of the house and to different articles in it; the bedroom was most indecently ransacked; the sitting room was also searched; I saw some papers lying about in great confusion, but I did not see them searched; the linen was thrown about; the parties were there about half an hour; nothing was found that was claimed; Captain Lewis desired the constables to examine some empty pickle bottles on the kitchen shelf; he was very particular in the search, but his manner was generally mild; Mr. Unwin's room was not searched; I heard Captain Lewis desired the constables not to open Mr. Unwin's trunk; he said it did not matters; the manner of one of the constables was such as to induce me to report him to Col. Wilson and he was only allowed to remain in the police on condition of his apologising; his misbehaviour occurred in the present of Captain Lewis; there were two constables; the one I reported was named Sheedy, and he appeared to have been drinking; Lawless, the other seemed to be perfectly sober; Sheedy refused to shew me the warrant or to give me his name or number; I was at Mr. Thurlow's house on the might Mrs. Lewis complained of being robbed; it was on the 14th February about 9 o'clock in the evening; I went there about 6 o'clock, and had remained there ever since; Mrs. Lewis ran into Mr. Thurlow's house, exclaiming that she had been robbed, and said what should she do; Mr. Thurlow and I accompanied her into the house and went over it; the bed room window was open; she said a watch had been taken away that was hanging up at the window; she also said she had lost some sovereigns, a silver cup, and some spoons; these she said were taken from different parts of the room; seeing some silk dresses, and other valuable property lying about the place, I suggested to Mrs. Lewis the improbability that any one would select particular articles from the room when they might have made a clean sweep of its contents; she said it was lucky she had placed some other money in the Bank of New South Wales; she stated that she had just gone over the way; another time she said she had been absent 20 minutes; there were houses over the way; I went with her into the yard; I advised her to send for a constable; when one came, he went into Mr. Thurlow's premises, and examined the brick wall between the two houses; the back door of Mrs. Lewis's house was open; the constable went to see if there was the appearance of any one having gone over the back wall from Mr. Thurlow's premises into Mrs. Lewis's; there was a young girl with Mrs. Lewis about 10 or 12 years of age; as I was cross-questioning her about the robbery, her Mistress called her away; the little girl appeared to me to be prevaricating; I was asking her who had been in her mistress's house during that evening, when Mrs. Lewis called her away; Mrs. Lewis said the little girl had gone with her, when she just went over the way; I think I was back and forward at Mrs. Lewis's house on that occasion for about a quarter of an hour; I do not think the constable thought any thing of the search he made at the brick wall; I cannot speak as to the value of the things, which I have stated I saw scattered about in Mrs. Lewis's room.

Cross-examined - I had often-visited at Mr. Thurlow's house, previous to the night of Mrs. Lewiss's [sic] alleged robbery, there was no female in Mr. Thurlow's house at the time I am speaking of; a young female lives with Mr. Thurlow, whose sister I am not aware visits her; I do not know whether her name is Miss James or not; I never asked Mr. Thurlow who she was; I call her Mrs. Thurlow; I did not see any other female there on that night; I did not go into the kitchen; I was only in one room during that night; it was on my recommendation that Mrs. Lewis sent for a constable; the brick wall divides the two yards; it is 9 or 10 feet high; I did not observe any ladder in the yard; I saw Mrs. Lewis's back door open; there was a clothes line in the yard, which appeared to have been newly cut; the bed room window, which is as a second floor to the back part of the house, but is on a level with the ground floor of the front was open; I do not think any one could have got into that window without the assistance of a ladder; I am not aware that there was a ladder in Mr. Thurlow's yard at the time; Mrs. Thurlow is not living there in the capacity of a servant; Mr. Thurlow has had a female servant lately, but I believe he had not at that time; I am certain of it; I recollect Mrs. Thurlow saying that he had got a female servant out of the last ship that arrived with females; I do not recollect a Miss James from Parramatta, being on a visit to her sister, Mrs. Thurlow; the constable was very insolvent to me; he refused to let me see his warrant, or to let me know his name or number; I considered myself as acting professionally; I was not there when the constables first came; I was sent for by Mr. Thurlow; persons labouring under excitement are not always capable of acting for themselves wisely; I consider that was the reason why Mr. Thurlow sent for me; Mr. Unwin was there; he lodges in the house with Mr. Thurlow; Mr. Lewis told the constables not to search his room; the young lady I call Mrs. Thurlow, sleeps in Mr. Thurlow's room; that room was most indecently searched; Mrs. Thurlow was within at the time of the search; I cannot imagine that Mr. Thurlow was suspected for stealing Mr. Lewis's watch; I do not know whether it was the women in the house who were suspected; of course Mrs. Thurlow might bring any thing of any in proper nature into Mr. Thurlow's house without his knowledge; with the assistance of a ladder, a person might easily have got into Mr. Lewis's house from Mr. Thurlow's; we were not jesting with Mrs. Lewis about her loss; we both of us, that is I and Mr. Thurlow, said, after we had left Mrs. Lewis that she had not been robbed at all, but that she must have pledged the articles for grog; she appeared to be perfectly sober; it was what I had heard of her before, that induced me to make that observation; it is very probable that from 6 till 9 o'clock that evening, I might have had something to drink; Mrs. Lewis called away the girl while I was speaking to her, but I do not think she could have heard what I was saying; she was the only servant in Mrs. Lewis's house; I do not know the constable's name who looked at the wall; I went to the Police-office for the purpose of becoming bail for Mr. Thurlow, when he was bound over to keep the peace, but two of his friends were there before me, and rendered it unnecessary; there is a passage out of Mr. Thurlow's back yard into that of a neighbour; there was a small clock in Mr. Thurlow's bed room; I did not see a second young woman there on the night Mrs. Lewis said she was robbed; there might have been fifty there without my knowledge; Mrs. Lewis called for Mrs. Thurlow, who was not within at the time; she came in shortly afterwards; she was in the house when I went into it at 6 o'clock; she left the room as I entered it; I did not see her again until about half an hour after the alleged robbery had taken place; Mrs. Thurlow was not at home when I advised the constable to be sent for; Mrs Thurlow was present when I was questioning the little girl; I was standing in the verandah when I was talking to the little girl; Mrs. Thurlow was with me.

Re-examined - The search was not confined to Mrs. Thurlow's property, if she had any there; Mr. Thurlow's property was also searched, and some papers that he had belonging to his office; this had been done before I arrived; Mr. Lewis was present when the constable was insolent, and did not interfere one way or the other; he did not attempt to induce the constable either to shew his warrant, or to give up his name or number.

Mr. and Mrs. King, and Mr. Jilks, the chief constable, were called to corroborate portions of the above evidence.  The search warrant was also produced, and read in evidence, and the plaintiff's articles of clerkship were likewise put in before the Court.  This closed the plaintiff's case.

The Solicitor-General, on the part of the defendant, contended that his client was entitled to a non-suit, on sundry legal objections which he took to the declaration.  The first objection which the learned gentleman took was, that there was a fatal variance between the name set forth in the information taken before the justice, as well as in the search warrant, and the name which appeared in the declaration, the former being John Thurlow, and the latter William Thurlow.  The second objection was, that the substance of the charge went to allege a felonious receiving of stolen goods, which the evidence did not support, for it did not appear that Mr. Thurlow was at all charged with a knowledge of it; and the third objection was, that the evidence went to shew Mrs. Lewis was the instigating party, and that her husband, who was at sea at the time of the robbery, afterwards merely accompanied her to the magistrate, as a husband might naturally do.

Mr. Justice Dowling intimated, that in point of law, he was of opinion that the second objection was a valid one.  The information and warrant did not go the length of charging the plaintiff with feloniously receiving the defendant's goods, knowing them to have been stolen, which was the very essence of the crime.  Under this view of the case, his Honor held that the evidence did not sustain the warrant in the declaration.

Mr. Wentworth, on the other hand, submitted that there was other information on which the Magistrate acted, than the affidavit offered in evidence.  The mere neglect of the Magistrate in not reducing that evidence to writing, had no right to prejudice the plaintiff's action.

The Solicitor-General having replied, Mr. Justice Dowling said, I entirely agree with your objection, Mr. Plunkett, but I will hear this case to an end.

The Solicitor-General then addressed the Assessors on behalf of the defendant.  The learned gentleman said that they had been told this action was brought for the purpose of vindicating the character of the plaintiff from an unjust accusation; but how did the evidence which had been already adduced, bear out that statement.  It was plain that Mr. Thurlow was never even suspected of the theft - that the whole body of suspicion rested against the concubine of that young gentleman, and against her relatives, who were in the habit of visiting her, and he had evidence to offer which would show beyond all doubt, that they were perfectly of doing that and even worse than that which was laid to their charge.  It was therefore but too evident that the present action was brought in order to vindicate the characters of these parties, and not of that of Mr. Thurlow, whose conduct in doing so, was even more disgraceful than it would have been if the allegation he pretended had been made against him had been clearly established by proof.  The learned gentleman after an eloquent and impassioned address, which we regret out limits will not permit us to take further notice of, put it to the Assessors, that the absence of all vindictive feeling on the part of the defendant, and the existence of a probable cause for what he had done, would, he felt assured, prove his client's best answer to the present charge, and entitle him to a verdict at their hands.

The following witnesses were then called on the part of the defence: -- Michael Sheedy, one of the constables who executed the search warrant; and Bernard Boyle, the constable, who inspected the premises on the night of the robbery, were first examined.  The latter deposed, that on looking at the wall which divided the two yards, and against which he saw a ladder standing in Mr. Thurlow's yard, he perceived a sort of streak on the flagging at the top, which seemed as if it had been effected by the nails in a person's shoe, and he mentioned the circumstance on that same night to Mrs. Lewis.  James Thomson, a lad of about 13, and the son of a soldier in the garrison, proved that he lived for one day in the service of Mr. Thurlow, and that he saw a yellow watch hanging up over the mantle piece in one of the rooms.  He afterwards lived in the service of Mrs. Lewis, and he then mentiond the circumstance to her.  Amelia Pearce, a little girl about seven years old, lived in the service of Mrs. Lewis at the time of the robbery, and remembered the circumstance taking place.  On that day she recollected Miss James, the sister of Mrs. Thurlow, coming into her mistress's house three several times for the purpose of enquiring what time it was, and on one of these occasions, she took Mrs. Lewis's gold watch in her hand, and observed, what a pretty one it was.  The watch was then hanging up at the window, from which it was afterwards stolen.

This closed the defendant's case, and Mr. Wentworth replied to it, in a speech of considerable length and ability; after which his Honor, Mr. Justice Dowling, summed up the evidence in a most elaborate and impartial manner, leaving the case with the Assessors as a mixed question of law and fact.  The learned Judge observed, that if the Assessors were of opinion that the defendant had reasonable ground for suspecting that his goods were upon the premises of the plaintiff, he was then bound to tell them that in point of law, there was probable cause for the proceeding he had adopted, and he would be entitled to a verdict at their hands.  If, on the contrary, they should arrive at the reverse conclusion, they would then have to consider what amount of damages would satisfy the plaintiff for the unjust imputation cast on his character.  The Assessors found a verdict for the plaintiff, with £20 damages.  The objections taken by the defendant's counsel on the law of the case, were reserved for future consideration of the full Court.  The trial, which attracted considerable interest, lasted during the whole of the day.

 

Notes

[1 ] See also Australian, 14 July 1835.

Published by the Division of Law, Macquarie University