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

Roache v Jones [1836] NSWSupC 19

assault, definition of - absconding debtor - ship, capture of

Supreme Court of New South Wales

Dowling J., 15 March 1836

Source: Australian, 18 March 1836[ 1]

Tuesday, March 15, before Mr. Justice Dowling and a special jury.

Roache v. Jones. - On this case being called, only seven jurors answered to their summons, whereupon Mr. Kerr as counsel for the plaintiff, prayed a tales which was granted, and the trial proceeded.

Mr. Kerr stated to the jury, that it was an action brought by his client for assault and battery, the damages were laid at £200.

Thomas Jeffry examined. - I am landing waiter at the custom house I was on board the Revenue Cutter Prince George, in December last, in pursuit of a man named Thorpe, charged with forgery; a whole boat was observed outside the heads, and a gun was fired from the cutter to bring her too, I cannot say if the gun was loaded, it was fired a head, as is customary, to bring vessels too - the cutter is well known in the harbour to the boat men, I saw the defendant after or on the 10th of December, he came to me on the Kings Wharf, he was in a violent passion, and addressing me, enquired what right the puppy Roache had to fire at him, to which I replied, that he did not fire at him, only for the purpose of bringing the boat too, he then said, that when he met Roache, he would give him a damned good kicking and pull his nose.

Cross-examined by Mr. Forster - I believe that Jones had a constable and a warrant to arrest Thorpe.  I understood the pilot boat was going out for the purpose of putting Thorpe on board, I never spoke about a ball being extracted from the gun, I was once present when Mr. Roache and a witness named Jones had some conversation, but no promises were held at the time to Jones, during my presence -- I think he once went in my boat on board the cutter, to see Captain Roche he having expressed a desire of having some conversation with him - I don't remember having asked him to meet me in the Demesne, Roache and me have often spoke about this business, I knew Captain Gatenby of the ship Norfolk, he sailed for England about three months back - An affidavit of Captain Gatenby's was here put in and read, which stated, that on passing through George-street, on the day in question, he heard the defendant use very provoking and threatening language towards the plaintiff.

Jacob Jones examined - I am a groom out of employ, I saw plaintiff and defendant at the bottom of Church Hill, about three months back, when Mr. Roche said to me, you see that man, he has spit in my face.  I did not see him do so, they had some aggravating words between them, Captain Roche told both me and a boy that was standing bye, that he would give us 5s., if we would go for a constable, upon which Mr. Jones said, you had better give me 5s. and I will go for a constable - after my return, Mr. Jones said, if there was any thing further about it, I need not appear, if not subpoened, I did not see Mr. Jones spit in Captain Roche's face; I saw Captain Roche wipe his face with his handkerchief, I never told any one to my knowledge, that I saw him do so - in answer to a question from Mr. Kerr, as whether he had not told him so, the witness said he never saw him before in his life.

Mr. Foster submitted that there was no case to go to the jury.

Mr. Justice Dowling thought it would be the most satisfactory course to send it to them, and he would point out what constituted an assault.

Mr. Foster in addressing the jury, observed, that Mr. Jeffry did not come before them, as an unbiassed [sic] witness, a fact which clearly appeared from the manner in which he gave his testimony, he Mr. F. contended that no assault had been proved, and that the whole proceedings emanated in jealousy, for it was clear that Jones arrested Thorpe, and that Jeffry was a complete partizan on the occasion, the learned counsel regretted that such an insignificant case had not been disposed of at the Police Office, which would have saved the attendance of the jury, and he again submitted that there was no case made out to go before them.

Mr. Justice Dowling in summing up; read to the jury from the books what constituted an assault, language to any extent was not productive of assault, if a man put his clenched fist towards the face of another that would not constitute an assault, if a man placed his hand on the handle of his sword and threatened to do another an injury, yet so long as the threat was not carried into execution, it was no assault - in this case no assault had been proved, without indeed they were satisfied that defendant spat in plaintiff's face, and of which there was no direct evidence perhaps it was the shuffling of the witness Jacob Jones, a groom, as he stated himself to be out of place.  That subjected the plaintiff to the expense of a civil action.  The jury retired for a considerable time and on coming into court, the foreman said they could not agree, and the judge having a second time read and explained for them the law on assault, they again retired, and on coming into court delivered a verdict for the plaintiff, by inference, damages £200. - it is supposed that a new trial will be the result.

 

Notes

[1 ] See also Sydney Gazette, 19 March 1836.  For the trial of Thorpe, see R. v. Thorp, 1836, and for the capture of another ship, see The Schooner Darling, 1829.

Published by the Division of Law, Macquarie University