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

Donnison v. Faunce [1837] NSWSupC 72

Brisbane Water, stealing, cattle, Kinchela, gives evidence, perjury, magistrates, action against - magistrates, action by - trespass, malicious prosecution, false imprisonment

Supreme Court of New South Wales

Dowling A.C.J., 16 and 17 October 1837

Source: Sydney Gazette, 19 October 1837[ 1]

Before the Acting Chief Justice, and the following Special Jury, - Messrs. T. Gore (foreman), J. Blackman, H. Hume, John Lord, E. Haslingden, C. Fairs, Henry Fisher, J. Verge, E. Holt, J. Tooth, J. Giles, and J. L. Scarvill, Esquires.

Donnison v. Faunce. - Mr. Donnison, who conducted his own case, said that this was an action of trespass, brought by himself against Captain Faunce; in entering into the details of his case he should have to address them at considerable length, but he would make his remarks as short as possible:  He had been illegally apprehended by the defendant, taken from the Bench where he was administering justice, imprisoned, ironed, dragged to Sydney Gaol, and before the Supreme Court without any shadow of cause; and in that way might any of the jurors be served, were it not that they could afterwards come before a jury for redress.  It might appear incomprehensible how the defendant could have acted so, but, before he concluded, he should be able to show the jury that he had been acted on by improper influence that he had been influenced from the lowest quarters, as well as the highest. Captain Faunce arrived at Brisbane Water, as Police Magistrate, in October, 1836, superseding Mr. Warner.  Between Mr. W. and himself (Mr. D.) there had been several differences, particularly one, which he must enter into in detail: In consequence of some communication with the Governor, Mr. Warner had received instructions to appoint two assessors to assist him in the assignment of convicts. Mr. Warner named a man who had been constable, and the poundkeeper; and, on his (Mr. D.) asking him how it happened, he said he could not tell, it must be some mistake: he never dreamed that Mr. Warner was acting treacherously towards him.  About this time Mr. Moore wrote a letter of complaint to the Governor, on this subject, which excited Mr. W.'s ire.  In December, 1835, Moore was apprehended with two men, one an assigned servant to himself, and the other to Mr. D. When Moore got to the Court, he found the depositions already cut and dried; and Mr. Warner wished him (Mr. D.) not to sit on the Bench, as he understood he was a partner, or in some way connected with Mr. Moore; and upon his declaring that he was not, Mr. Warner still wished him to leave the Bench: and Mr. Cape, the prosecutor of Mr. Moore, entered a protest on the proceedings against his sitting on the Bench, and he (Mr. D.) entered a protest against the committal of Mr. Moore.  Perhaps he had acted irregularly in so doing: he ought to have committed Mr. Cape on the spot for contempt of Court.  He wished the case to be sent to the Sydney Bench to be disposed of; after some discussion, this was agreed to, and Mr. Moore was locked up; but at his suggestion, was afterwards admitted to bail, and came to Sydney.  When the proceedings were closed, he wrote to the Governor a full statement of the circumstances of the case.  In the following month he wrote a second letter; and, in March, a third to none of which did he receive any answer.  Determined not to be foiled, he wrote to to [sic] the Private Secretary, and called with the letter himself Mr. Holden said that the case was disposed of and the men discharged; and that the Governor was very busy, and could not see him.  After some delay, however, he was admitted to the Governor, and requested his Excellency to investigate the case, which he declined doing; upon which he tendered his resignation of the Magistracy, which his Excellency refused to take, and consented to investigate part of the matter but with that part he would not trouble the Court. He was subsequently referred to the AttorneyGeneral, but previously to that he had written a letter to the Colonial Secretary, an expart of which he would he would read, to show that he had always courted enquiry.  He was then informed that the Governor considered it was a private letter; upon which he wrote to the Private Secretary that it was a public and not a private charge; so that it was evident he always courted investigation.  He then officially laid a statement of the circumstances before the Attorney General, calling that officer's attention to his (Mr. D.) letter to the Colonial Secretary, but to that communication he received no answer.  In August, the charge still lying over Mr. Moore's head, Mr. M. applied to the Governor, when his Excellency was pleased to say --

An objection was here taken to what the Governor said to Mr. Moree being taken as evidence against Captain Faunce, which the Judge held to be good.

Mr. D. continued. -- In October, 1836, Captain Faunce having arrived at Brisbane Water, Mr. Moore was apprehended on another charge of cattle-stealing.  On the 1st of November he (Mr. D.) went to the Court-house, not to act as a Magistrate, but as a witness, and was sitting near the door, when Captain Faunce ordered him out, and would not let him stop, for fear he should hear what was going on.  During this examination Mr. Bean was a witness, and said he would not believe Captain Cape on his oath, and that he was a notorious cattle stealer; on this, Cape made a complaint against Bean for perjury, and the defendant issued a summons for Mr. Bean to attend the Bench on that charge.  On the 14th November he (Mr. D.) went to the Court-house, and found Cape giving evidence against Bean; he did not intend to sit as a magistrate, but he told Captain Faunce that the evidence of Cape had been refused on a former occasion at that Bench, and that as it was only oath to oath he did not think it was a case in which the defendant could commit.  Cape then went to the door of the Court, and returned, pulling in a man named Meadows, saying ``This man has lost a cow, and I accuse Henry Donnison and Willoughby Bean of stealing it.  Notwithstanding many witnesses had been subpoenaed to attend in the perjury case, not one was heard but Cape.  Why was that?  Was it not evident that the witnesses had been summoned for perjury in order that the charge of cattle stealing might be kept close, and the parties taken by surprise.  By the depositions, which the defendant would of course lay before the jury, it would be perceived that Meadows was not a man to be believed; and, at the trial in the Supreme Court, his Honor who was then on the Bench said that, the case rested on the unsupported evidence of Meadows.  In the course of the examination he drew the attention of Captain Faunce to the circular that was sent to the Magistrates when Peel's Acts were adopted, the first clause of which relates to the credibility of witnesses; when Captain Faunce said I must act according to my instructions.  After that he (Mr. D.) said no more; if the Captain had received instructions, it was no use talking to the Magistrate.  When Captain Faunce asked him what he had to say why he should not be committed, he said the case was entirely frivolous; and, after some discussion, he was allowed to go at large on parole in company with Mr. Bean.  It had been said that this showed leniency, but it cut two ways: if the defendant really thought them guilty, it was highly culpable, but he believed that the defendant thought them innocent and never wanted to commit them, he was waiting for further instructions.  During the examination Cape stood behind Meadows prompting him, and when he pointed this out to Captain Faunce, Cape was desired to go out; soon afterwards, hearing Cape's voice, he found that he was standing listening at the door, and it was not until he pointed it out to Captain Faunce a second time that Cape was removed away from the Court.  Thus the defendant, who had at once ordered him out of Court in Moore's case did not remove Cape from the Court until he had been driven from place to place.  He then came up to Sydney, and knowing that there was only one Magistrate in the district, who could not admit them to bail in case of committal, he, in company with Mr. Bean, called at the AttorneyGeneral's office, but that gentleman being out of town, they saw Mr. Fisher, who pledged himself that they should be put to no inconvenience on that account.  On his return to Brisbane Water he called on the defendant, who told him that the AttorneyGeneral had written to him to say that Meadows must bring a civil action in the Court of Requests, and that the case must lie over till then.  He told Captain Faunce that he considered it was most monstrous, that a charge of this kind should be allowed to hang over his head until Meadows thought fit to sue Mr. Bean in the Court of Requests, especially as he had then allowed the case to stand over for three years.  Soon after this Mr. Bean returned from Sydney and said that the AttorneyGeneral had dropped the proceedings; they went to Captain Faunce and told him so, when he said that there must be some mistake, but he would let them know as soon as any communication arrived from the Attorney General.  He did let them know with a vengeance; for the first intimation he got of any communication having been received was by a man clapping a pistol to his breast and telling him that he had a warrant against him for cattle stealing; the man would not let him see the warrant, but merely said he apprehended him for cattle stealing.  Being early in the morning he asked him if he would let him have some breakfast, to which, after some demur, he acceded, and they proceeded to the house together, the man making a most formidable display of his pistol; when they got to the house Mrs. Donnison unfortunately came into the verandah, and received a shock from it which she has not yet recovered.  After they had had some breakfast they proceeded to the Courthouse, where Captain Faunce put into his hands a letter from the AttorneyGeneral.  By this letter the jury would perceive that additional information had been given to the AttorneyGeneral - what that information was he could not conceive; but there was one very startling fact, the AttorneyGeneral, as Grand Jury, says if you are committed I will put you on your trial.  What would be said in England if the Middlesex Grand Jury was to say to the Bowstreet Magistrates, if you will commit a prisoner we will find a true bill against him?

Mr. Bean was then called in and asked if he had written to the Crown Solicitor, and upon his answering in the negative, the defendant said it would have been better for Donnison if he had not. It had been said that the defendant was not bound to hear witnesses to clear the character of the prisoners; he certainly was not bound to hear witnesses pro and con unless the case required it, but a Magistrate is obliged to hear all evidence that bears on a case, and there were witnesses in attendance who would have proved that Bean sold him the cow, but the defendant would not hear them, he said, "in my ministerial discretion I decline to hear them, you are committed."  Among many other charges that were preferred against him was a charge of magisterial delinquency: this charge, he had no doubt his honor would tell the jury, was one which the defendant had no power to enquire into; the Supreme Court is the only place where that could be tried.  It was on the 4th January that he was committed on the charge of Meadow's cow, and on the 5th he was charged with stealing a cow in company with Mr. Moore; the principal evidence against them was that of a servant to Mr. Moore, who ought to have been termed King's evidence, as he had formerly been committed on the charge.  The two men who had been committed with Mr. Moore on a former occasion were treated very differently, while Moore's man was allowed every indulgence, his (Mr. D.'s) man was put into a cell and kept there for ten weeks, being told the time to speak the truth, - but the man knew nothing, and he would not invent a story: it was a dreadful trial for a man in his class of life, but he withstood it. Mr. Moore's man, from some mistake in his drilling, instead of swearing that the cow belonged to Mr. Cape, swore that it belonged to his master, and on that evidence they were committed for trial, and an information filed against them.  From the 5th to the 10th January, he was kept in confinement, without any evidence being taken against him,  in fact the man that was to have given evidence had been sent to conduct a lady to Brisbane Water.  On the 10th he was charged with assisting Mr. Moore to steal six head of cattle, the property of one Bramble, merely because, as he was riding through the bush, he helped Mr. Moore to drive in a cow that Bramble claimed.  Another charge was conspiracy to injure Bramble's character by conspiring with Mr. Bean to accuse him of arson.  The district of [sic] was a kind of debateable land,  it was neither in the districts of Brisbane Water, Maitland, nor Newcastle: hence arose those gangs of cattle stealers and grogsellers, and his efforts to them, which brought upon them the charges that were afterwards exhibited.  When Bramble was before the Bench he crossexamined him, when Bramble said, 'I say, Donnison, did I ever steal anything from you," and on his calling upon Capt. Faunce for protection from insolence, the defendant said, "I do not see how I can stop him: you are only a common criminal," but, upon his asking him as a favor not to allow him to be insulted, he told Bramble not to answer so.  This lesson was not lost, for the next day the Clerk of the Bench was passing the lockup, and, on his asking him when a mail would be made up for Sydney, he replied, "don't speak to me, you common criminal."  When Bramble was asked why he had let the charge lie over for a long time, he said he had been bound to the peace, which, he thought, prevented him from laying the charge, and it would not have been brought then, if he had not thought that he (Mr. D.) had acted treacherously towards him, with regard to some cattle; when Bramble was asked why he made the charge of perjury, the defendant answered "I put that in," and it would be found, on reference to the depositions, that the defendant had also inserted the charge of subornation of perjury.  Mr. Warner was then examined and after that he (Mr. D.) was committed.  The unfortunate man Smith, who had been so long in the cells, was then brought forward and committed for trial, but the law officers had not yet dared to bring him to trial.  A professional gentleman, Mr. Plaistowe, at this time came over, and had it not been for him it would have been difficult, in that isolated place, to have procured witnesses, for persons were actually driven away from the neighbourhood of the lockup.  After the first committal they applied for bail, which was refused them, as the defendant said he had been instructed by the AttorneyGeneral not to take bail, and asked if he (Mr. D.) would not send for his friend Warner.  Mr. Warner came down two or three days afterwards, and Mr. Bean demanded bail, but it was refused him.  On the 14th he (Mr. D.,) very much wished to go home, and applied to the defendant, who said that he was very sorry to be obliged to send a constable with him, to which he replied he could not think of going without.  He got ready to go home, and told the constable he was ready, when he said he believed there were further orders; and Captain Faunce told him none of the constables would take him, as they were afraid he might be rescued.  About halfanhour after this, the lockupkeeper came in and said he was very sorry but he must iron them; the Chief Constable was called and asked if he had seen any attempts at escape, or had any warrant; he said no, the Captain's order was enough for him, and they were all three ironed.  This was most degrading; there was no attempt at escape, no violence, it was clear tyranny.  The irons were not removed until the next day at the instance of Mr. Plaistowe.  Look at all the charges, what were they? -- there was being accessary to Mr. Bean, accessary to Mr. Moore, subornation of perjury, but no overt act of his own.  He felt confident that he was the person aimed at all along, and it was a subject of great grief to him that he had caused so much annoyance to his friends, as he had.  When people are confined, there is such a formality as a warrant, and when they got a lawyer they applied to see the warrants; they got copies of warrants for their apprehension, but no warrants for their detention and commital [sic] until some time afterwards; and he had no hesitation in saying that they were fabricated, and the Clerk of the Court would not venture to swear that they were made when they ought to have been; so that their confinement was as illegal as it was oppressive.  While they were laying in the lockup a heavy squall came on, and they were suddenly ordered to proceed to Sydney; the vessel by which they were to proceed was lying across the water to the Southward, a distance of nearly five miles, and it would have been impossible for them to have pulled to her; small vessel of fourteen tons, heavily laden, and with no accommodation but her deck, and could not have gone to sea, and they protested against going, and under the protest they were allowed to remain.  The vessel laid there for five days, and at the end of that time they were sent on board and came to Sydney.  A day or two after their arrival they were admitted to bail by a Judge, and returned to Brisbane Water.  Their Solicitor, Mr. Pogson, having died, their papers were placed in the hands of Mr. Unwin, and the first question he asked was what is your defence? - to which he replied none, but that he bought of Mr. Bean.  Mr. Unwin then took down a list of the charges that had been preferred against him; three cases of cattle stealing, perjury, subornation of perjury, conspiracy, and Magisterial delinquency.  This list was taken to the Attorney General, who struck his pen through all but the charges of cattle stealing, but refused to say which case he would try first, or that if one failed he would drop the others, so that he (Mr. D.) was put to the expense of preparing briefs for his counsel in each of the cases; it was true only one was tried, for the other two cases were so slight that even the ingenuity of a lawyer could not frame an indictment on them.  On the day of his trial what was his surprise to find that he was indicted for stealing, and Mr. Bean for comforting him, in stealing Meadow's cows; and he had been told, by those who knew, that it was impossible Bean could be convicted under that form of indictment.  It might be asked why there should be such a wish to screen Bean; there is such a thing as an old friend, and it would be very inconvenient to meet an old friend and say I have just hanged or transported your son, and it is said that the Governor and Mr. Bean's father are on terms of friendship.  Between the first and second examination two papers were given in by Mr. Bean to Captain Faunce; the first was a sale from Manning to Bean of some cattle, and the second a muster in which Meadow's cow was mentioned.  At the trial Captain Faunce was examined, but these papers were not forthcoming.  No defence was made; the case was left to the Jury, and without retiring from the box they returned a verdict of Not Guilty.  The defendant was not a young man, he could not have erred through ignorance; he had been Captain and Adjutant in the 4th Regiment many years; and the Jury would recollect that in 1836 the Magistracy was purged of all improper characters who had been kept in the Commission, merely until more eligible persons arrived; Capt. Faunce was one of those eligibles, and had been appointed to the Police Magistracy at Brisbane Water, and no one could suspect the illustrious individual at the head of the Government of this colony, of appointing an ignorant and improper person to such an important situation.  The fact was, that Captain Faunce had been acted on by improper influence; he had been acted on by the family of the Capes, to whom he (Mr. D.) was an enemy; he had been acted on by the clerk of the court, and he was an enemy to him.  He had been acted on by all the rougues [sic] and vagabonds in the district, and he was an enemy to them; and he was afraid the defendant had been influenced in much higher quarters.  Notwithstanding all that had been said and proved respecting Captain Faunce, he still remains at Brisbane Water in spite of public opinion, so that it is evident there was some strong influence acting here in his favor.  The actions that had been brought before this Court had been met with technical objections; but this, he hoped, would be met fairly and openly on the merits; it was necessary for the defendant, it was necessary for all implicated, it was necessary in order that the public might be satisfied, that the stream of justice is unpolluted, that it should be so.  He thought he had showed enough to make out a strong case for the interference of the Jury and he would only detain them a few moments on the subject of damages.  If such a case had happened in England, the damages would not have been put down lower than £5,000.  In fact, no man could compensate him for what he had suffered through the defendant, and he would ask the Jury whether they would submit to the ironing alone for any sum.  There was no way in which he could recover compensation but through an action; if there had been a tribunal at which the matter could have been investigated, he would have gone to it.  What property the defendant was possessed of he was not aware, nor who would pay the costs and damages: it had been said that the Secretary of State had been appealed to, to pay them, or they might be paid by those who gave the defendant instructions.

Mr. R. J. Want and Mr. Richardson, clerk to Messrs. Unwin and Want proved that the usual notices of action required by the Statute to be given to a Magistrate, were given on the 13th March, and Mr. Elyard a clerk in the Supreme Court office, that the action was not commenced until the 17th April.

Mr. Willoughby Bean called and examined by Mr. Donnison I am a settler at Brisbane Water. On the 1st of November I gave evidence against Mr. Moore; I was summoned to attend the police office on a charge of perjury preferred by Mr. Richard Cape; I attended on the 14th November; Cape was the only person examined; Meadows, King, and Hogan were at the door to be examined, but were not.  During my examination you remarked that Cape's evidence had been refused on former occasion.  When Cape found that Captain Faunce was undecided whether he would commit me for the perjury, he went out of Court and returned pulling Meadows into the Court saying, this man has lost a cow and I accuse these two men, meaning you and me of stealing it; you were on the bench at the time, but not acting as a Magistrate.  Captain Faunce, on your remonstrance ordered Cape and Meadows out of Court until the perjury case was disposed of; as soon as the defendant had resolved to send the case to the Attorney-General he ordered a constable to bring in Cape and Meadows and proceeded to investigate the charge of stealing Meadow's cow; you said a good deal on the subject of the credibility of the witnesses, especially Cape, Meadows, and Hillier, when the defendant said such evidence was received in the Supreme Court and he must abide by his instructions; you asked him if by instructions he meant the circular that was sent to the Magistrates when Peel's Acts were adopted, he said no; you recommended Capt. Faunce to send the proceedings to the AttorneyGeneral and he said he would, and we were allowed to go at large on our parole; about a week after this I came to Sydney and called on Mr. Fisher the Crown Solicitor; on the 20d November he told me that the AttorneyGeneral intended to take no further proceedings and I might return to the district and make myself perfectly easy; I returned to Brisbane Water and on December 26th told Captain Faunce in your presence what the Crown Solicitor had said; he said that he had received a communication from the AttorneyGeneral and he believed that the proceedings were not to be dropped and he would let us know when he received any further information; he said that he had then received a letter from the AttorneyGeneral that the proceedings were to be suspended until Meadows could bring an action in the Court of Requests; you expressed your doubts and said there must be some mistake; from what Mr. Fisher said I considered the matter entirely at an end and took no trouble in procuring the evidence I had gone to Sydney to prepare; you had no means of proving your innocence but through me from whom you purchased the cow; I got the cow from Mr. Manning in a settlement of accounts; I told Mr. Fisher that I intended to prosecute Capt. Faunce and he said "if you do we must defend him;" (Mr. Donnison remarked that it was to this indiscreet threat they owed all the subsequent proceedings.)  On January 2nd I was apprehended by two armed constables; I received no previous notice from Captain Faunce that he had had communication with the AttorneyGeneral; when I got to the lockup you were there in custody; Captain Faunce examined me very minutely about my conversation with Mr. Fisher; he asked me if I had written to him, I said I had not and he said it would have been better for you if you had not; we were examined on the 2nd and 3rd and committed on the 4th January; Cape, Bourke, Thomson and Scott the clerk were examined; when we were committed we applied for bail; Capt. Faunce said he could not bail us being a single Magistrate; we both related our conversations with Mr. Fisher relative to bail and he said he had received instructions from the AttorneyGeneral not to take bail; after the 4th January I was not examined; you were examined on the 5th and afterwards on the 10th; on the 14th January you sent a message to Captain Faunce requesting to be allowed to go home, which I understood was acceded to; I saw a constable prepare to go with you; I afterwards heard Captain Faunce say that the constables would not take you home for fear you should be rescued; about half an hour after that the lockup keeper, Gorman, said we were to be ironed on one leg by order of Captain Faunce; one iron was put on your leg; you asked the Chief Constable if we had been riotous or attempted to escape, he said no; you asked him if he had any warrant, he said the Captain's orders were enough for him; we could have escaped both before and after the irons were put on if we had wished; we were often walking in the garden before the constables were up in the morning; we were in irons from about two o'clock on the 14th until ten o'clock on the 15th; they were taken off on the interference of Mr. Plastowe who came to me as a friend; I do not think Captain Faunce saw us while we were in irons; the lockup was a most filthy hole swarming with bugs; during the hot winds it was like an oven; the room was about three yards square; we had our own beds on the floor.

Crossexamined.  Captain Faunce had nothing to do with the smallness of the lockup; it was built before he went to Brisbane Water; the timber was not unsound; on the 3d and 4th January, we were allowed to remain in the policeoffice; it was a much better place than the lockup; Mr. R. Cape is the son of old Mr. Cape, a schoolmaster in Sydney, and brother to Mr. Cape of the college; when Mr. Donnison had told Captain Faunce that Cape's evidence had been refused, he should have received it with caution; Meadows came free to the colony; he has never been charged in any court with any offence; when he was overseer to Mr. Richards, he built a vessel there without his master's leave; I once gave Meadows a good character, but that was before I found this out; Captain Faunce said he would send the papers in the perjury case to the Attorney General; I did not hear Captain Faunce say the case must be dismissed, as I had some foundation for what I had said; Captain Faunce did not object to Mr. Donnison going home until he said the constables would not take him; I never heard that the cutter Laura belonged to Mr. Donnison; I was present when Scott was examined; Mr. Donnison put a great many questions to him to make him explain the charges he had made; Capt. Faunce said he thought some of it ought not to go down, but Mr. Donnison said that as the charges had gone down it was only fair the explanation should go down to; Donnison told Captain Faunce that he had got the cow from me, but I do not know whether he mentioned the date; I left Mr. Manning's employ in 1834, and was succeeded by Mr. Richard Cape, who, I believe, acknowledged Meadows claim to the cow, but he never gave her up; the cow became mine with some others on a settlement of accounts with Mr. Manning; the cow was running on Mr. Donnison's farm, and he complained to me that she was troublesome, and I told him he might have her for £1, the sum that he had given me for some cattle of Mr. Dangar's; I was getting on my horse at the time, and told Mr. Donnison to pay the money to Mr. Watson, and get the cow; Mr. Watson was at the policeoffice to give evidence of this, but Captain Faunce would not examine him; I told Captain Faunce no document passed between us at the sale of the cow; it did not surprise me when Captain Faunce said he should apply to the Attorney General to know whether we were to be admitted to bail, as the impression on my mind was that he often consulted him; when Mr. Warner came, he agreed with Captain Faunce that it was not a case for bail; while confined in the lockup we were generally allowed to see our friends.

Reexamined. I explained to Captain Faunce that after I had given Meadows that character I had detected him stealing from his master; it was necessary for our health that we should be allowed to walk about sometimes; when Mr. Warner summoned me about Meadows' cow, I considered it was a case for a civil court; several witnesses were in attendance to give evidence on our behalf, but Captain Faunce refused to hear them.

It being near six o'clock, the court was adjourned for the night.

 

TUESDAY, OCTOBER 17.

Mr. Justice Kinchela. - In 1836 I was Attorney General; some letters from the Colonial Secretary were referred to; they were about a quarrel between you and Mr. Warner and Mr. Cape; there was nothing about a charge of felony.  It was the practice of my office to return all original documents when an opinion was transmitted to the Government.  I have no recollection of any depositions being laid before me.

Crossexamined. - There was a deal of squabbling between the Magistrates at Brisbane Water; they were always quarrelling about something; Mr. Moore and Mr. Cape were in some way concerned in it.  Upon referring to the letter book of the office, I find that the documents transmitted to me by the Colonial Secretary were original documents, and I returned them in January, 1836.  It was a dispute between Mr. Warner and Mr. Donnison about the committal of Mr. Moore, when Mr. Cape and Mr. Warner objected to Mr. Donnison sitting on the Bench; (letter from Dr. Kinchela to the Colonial Secretary read). I cannot say whether it was before me in any other charge; it was my opinion that, if Mr. Warner thought there was a charge against Moore, he should have committed him himself; I thought there was an irregularity on both sides.

Reexamined - I got several letters respecting the quarrels of the magistrates at Brisbane Water.  There was nothing to prevent Mr. Warner committing himself; I exercised a discretion when a committal was sent to me whether I would commit I never wrote to a magistrate to say that if he committed I would put a person on his trial.

By the AttorneyGeneral  If the depositions came before me through the regular course instead of through the Colonial Secretary, I would most likely have placed him on his trial.

By Mr. Donnison - The magistrates should exercise a discretion as to the credibility of the witnesses, but it is a dangerous thing for magistrates to discharge, because they do not think a witness worthy of credit; that is a matter should be left to another tribunal.

James Drew. - I was formerly chief constable at Brisbane Water; I resigned in July last because constable Carpenter, after the last trial, said it was Drew done the Captain; nothing was said to me by Captain Faunce about the loss occasioned by my evidence; I recollect Mr. Donnison being in custody at the lockup at Brisbane Water in January last; he was in custody from the 2nd to the 23rd January; I saw Mr. Donnison with an iron on his leg on the 14th and 15th; Captain Faunce said to me these people, meaning Messrs. Moore, Donnison, and Bean, must be put in irons; Captain Faunce was in front of the policeoffice; the lockupkeeper put the irons on; several reports had been made to Captain Faunce that the prisoners were not safe; the foundation of the lockup was entirely rotten; when they were brought out to be ironed Mr. Donnison said I had better go to the captain a second time, I said it was the captain's orders and I must obey them; I had rather a doubt that Mr. Donnison would escape; I went to Tuggerah Beach and saw Mr. Donnison's cobler [sic], and told him his master had been taken on a warant [sic]; he said he was very sorry, he was a good master and he would go through fire and water for him; this was on the 2nd, and the irons were not put on until the 14th; it was the 14th I told Captain Faunce what the cobler [sic] had said; Mr. Donnison was under examination in November; he was allowed to go on parole; the lockup has not been repaired yet; in August last there were six or seven prisoners in the lockup, three of them for cattle stealing; no prisoners have been ironed; one of the prisoners was sentenced to an ironed gang by Mr. Donnison and Captain Faunce; he got away from the constable; he was taken and sentenced a second time; he was confined in the lockup and did not get out.

Crossexamined. - Mr. Donnison had got leave from Captain Faunce to go home, and the constable I warned said it would not be safe; I told Captain Faunce I did not think it safe to let Donnison go home; among other things I told him what the shoemaker had said; I cannot swear that Captain Faunce said if that be so these people must be ironed; I swear that what Captain Faunce said I took as an order to put the irons on; I always considered it an order; constable Carpenter wanted me to say I took it on myself, he passed many questions, he did not say it; as soon as Captain Faunce went away I ordered the irons to be put on; this was three or four hours after the conversation; the next morning Captain Faunce told me that I had been very sharp, and he did not intend it as an order, Mr. Donnison never said a word to me about these trials; I went to Brisbane Water and tried to recall my resignation; Mr. Donnison said I was a very foolish man to throw such a salary away, and interested himself for me; I know George Roberts, he was in my employ in February last; I do not recollect hearing Roberts say, about a week before the trial, I wonder how the swells will get on this day week; nor did I say that I hoped they would get lagged, or I should be dismissed for ironing them; there might have been a talk on the subject, but I never made use of the words; I never said if I had had the captain's order I should be all right; I do not recollect what was said; one man had been ironed in the lockup before; I believe I asked Roberts to bring me some previsions [sic] down from Sydney; I might have said if Bean, Moore, and Donnison were acquitted he need not bring them, as I should not stop at Brisbane Water, I did not say to Roberts certainly I had no order.

Reexamined - I took the irons off by order of Captain Faunce; I had seen Mr. Plaistowe before that; Mr. Plaistowe was with Captain Faunce before me the following morning; there was no other magistrate in the district but Mr. Donnison when I applied to be reinstated.

Mr. G. K. Holden - In May, 1836, I was private secretary to the Governor.

(As Capt. Faunce was not present at the conversation between Mr. Holden and the plaintiff, His Honor decided that it could not be taken as evidence against the defendant.)

Mr. H. G. Watson - I am a settler residing at Brisbane Water; I know these two papers; this is a note of sale of cattle from Mr. Manning to Mr. Bean; on the 4th January, 1836, I was at the Court House at Brisbane Water, when this paper was given to Mr. Faunce by Mr. Bean, with a request that it might be sent to Sydney; that is a muster of cattle, and was also given to Capt. Faunce; I next saw the papers a few days after the criminal trial, when Capt. Faunce handed them to Mr. Bean; I was aware of Mr. Bean having sold Mr. Donnison a cow in April, 1834; Mr. Bean wrote me word he had sold it; I do not know where the letter is, or whether I destroyed it; I attended the Court House to give evidence in January, 1837; I was not examined; I understood no evidence would be received; I heard Mr. Donnison ask Captain Faunce if he thought it was a bailable offence; Captain Faunce said he did, and Mr. Donnison requested Capt. Faunce to write a certificate to that effect, and append it to the depositions; Bramble was examined for an hour, while Mr. Donnison was closely locked up.

Crossexamined - I do not know that those documents were in Court at the trial; I was not examined on the trial of Messrs. Donnison and Bean; I heard that Mr. Warner did not consider it a bailable offence, and Captain Faunce could not bail singly.

Mr. John Plaistowe, attorney - On the 12th January I arrived at Brisbane Water; I went there in consequence of a letter to my brother, detailing the circumstances, to see if I could be of any service to my brother's friend; I carried a message from Mr. Donnison to Captain Faunce, requesting that he might be allowed to go home to see his family; and arrange his papers, before he went to Sydney; Capt. Faunce said that he might go, and appeared to regret that he must send him in charge of a constable; it was on the 14th he was to go; on the evening of the 14th a message came to me, and on the following morning I went to the lockup; Mr. Donnison had an iron on one leg, the rest of the iron was brought up the side, and tied with a handkerchief; I went to Captain Faunce, and asked him the reason they had been ironed; he said his reason was, that a constable of his had heard one of Mr. Donnison's men say he would go through fire and water, and that, in a conversation he had had with him respecting going home, Mr. Donnison said, "If my men were to rise and take me away from your constable, what could he do?" - after some conversation Capt. Faunce consented to order the irons to be struck off; I told Captain Faunce I did not care whether the irons were taken off, and if he would not grant it as a matter of right I should prepare affidavits and bring them to Sydney, lay them before a Judge, and get an order to have the irons taken off and the prisoners forwarded to Sydney; Capt. Faunce gave me a written order to the chief constable to take off the irons; I said that if anything happened to the vessel, and they should be drowned with the irons on, in my opinion it would be murder in him; Captain Faunce said, "If I cannot send them in irons, I can or will march them in handcuffs;" Capt. Faunce appeared to wish to impress on my mind that the irons had been put on for safety.

Crossexamined - I argued with Captain Faunce as to his power to put irons on. I will not undertake to say whether he said, I can, or I will send them up in irons.

Mr. James Raymond, clerk in the office of the Colonial Secretary - I have no recommendation to the Secretary of State to pay the damages in this action for Captain Faunce; I have a letter from Captain Faunce to the Colonial Secretary.  [Letter produced and objected to by the AttorneyGeneral, on account of the Governor's minute being on the back of it.]  Mr. Foster rose to address the Court on the point, when the AttorneyGeneral objected to his being heard, Mr. Donnison conducting his own case; the learned gentleman cited Mocatta v. Brown, a case tried in 1835, when Mr. Baron A1derson declined to hear counsel under similar circumstances.  Mr. Windeyer followed on the same side.

His Honor at once decided that a person conducting his own case should be assisted by counsel in points of law.  The learned Judge, who read the letter, said it was of no importance; the Governor's minute declined having anything to do with the matter.  The letter was then withdrawn.

The different documents put in were read and the plaintiff closed his case.

The AttorneyGeneral, followed by Mr. Windeyer, took a technical objection, which was overruled by His Honor.

The Attorney General then addressed the Jury at considerable length, contending that so far from the defendant not having had had reasonable or probable cause for what he had done, there was a strong prima facia case against plaintiff, and that where a Magistrate had reasonable suspicion of the innocence of a prisoner, he was bound by the Act of Council, 7th Geo.IV. to commit, but as this part of the case was entirely withdrawn from the consideration of the Jury, we shall not follow the arguments of the learned gentleman on the point.  With regard to the ironing, the learned gentleman said it was certainly the weak part of their case  no person being present at the conversation between Drew and Faunce  but since the last trial they had a piece of evidence throw an entirely different light on the subject.  A man named Roberts had a conversation with Drew, soon after the occurrence took place, in which Drew said that he hoped the swells would get lagged, or he should get dismissed for ironing of them without the Captain's order; Roberts thought nothing of the conversation at the time, but after the last trials observing in the newspapers what Drew had sworn, and being convinced that in swearing he was ordered by Captain Faunce, he had sworn falsely, he mentioned the matter to Captain Faunce, and would be put into the box.  In considering the evidence on this point the Jury must be satisfied that the irons were put on by Captain Faunce's order, and that it was unnecessary to put them on.  If Captain Faunce had meant to have had the prisoners ironed, would he not have have [sic] seen it done; or if Drew had considered what Captain Faunce said as an order, would he have allowed several hours to elapse without putting the irons on, after he had been told to do so.  The Jury must look at the entire of Faunce's conduct, and say whether they thought it probable that the defendant could put irons on for the mere purpose of degrading him, looking at the isolated fact could they believe it.  He would agree with the plaintiff that any man who could behave in so corrupt, so cruel, so oppressive, and he would add so brutal a manner, would deserve to be cast in the highest damages.  The Jury could not for a moment suppose that Captain Faunce, an officer, a gentleman, a man of education, could act so: what motive could he have had.  Although the law recognised no distinction between parties under a criminal charge, he had allowed the plaintiff and other prisoners to go on parole from November 24th to January 2nd; and why should he have done so if he had not had a wish to do everything he could to accommodate the prisoners.  He considered that he was fully borne out in saying there was no evidence to show that the defendant had any illfeeling in the matter; on the contrary he was sure that there was no man in the community that felt more delight at their being able to clear themselves satisfactorily.  Even if the Jury, after hearing Roberts' evidence, should consider that the defendant did give the orders to have the irons put on, they must look at the motive; and if there was no reasonable cause for his doing so if the heart was right if there was no malicious nor corrupt feeling, they would not give vindictive damages.  The learned gentleman concluded by remarking on the inability of Captain Faunce to pay heavy damages in consequence of the heavy expense he had been put to in former cases.

The following witnesses were called for the defence:-

Mr. G. Scott, clerk to the Bench at Brisbane Water - I have repeatedly examined these depositions; they are signed by the magistrate, Captain Faunce, and the parties respectively; the depositions are in Captain Faunce's handwriting.  This is a warrant signed on the 4th of January, for the committal of Henry Donnison and Willoughby Bean, on a charge of cattle stealing; it was signed by Captain Faunce the day it bears date.

Crossexamined - There were several other depositions taken against Mr. Donnison; there were three charges of cattle stealing against Mr. Donnison, on all of which he was committed.  There was a charge of perjury and subornation of perjury on which Mr. Donnison was committed. I am not aware that Captain Faunce said he must warn Mr. Donnison that he was to be examined on a charge of magisterial delinquency; Mr. Donnison made use of the term; Captain Faunce did not.  I made this deposition in a case of cattle stealing; I was called to prove whether Mr. Donnison had brought the illwill of the inhabitants by the execution of his duty as a magistrate, and I said he had not.  The matters in this deposition were extracted from me by Mr. Donnison. I said there was a bias against Mr. Donnison because he was not just in his dealings; this was on a charge of cattle stealing; I deny that I ever said I had a charge to make against Mr. Donnison so horrible that in mercy to himself and pity to his family, I must beg him not to press it, Captain Faunce called on me to give evidence.  This warrant was signed on the 4th of January. After Mr. Plaistowe came down copies of the warrants were demanded; I gave copies of all the warrants that were in the office.  I first gave a copy of the apprehending warrant on the same day that copies were demanded.  I think the copies of the warrants of committal were given the same day; I cannot say whether the copy of the warrants of committal was given until the following morning, I think I gave the whole of the copies on the same day.  I did not show the original warrant Mr. Plaistowe.  During the examination I did not go out of the office to talk to the witness.

Reexamined - All that is put down in my deposition was written at the request of Mr. Donnison; Captain Faunce objected to it as irrelevant; I am quite sure the warrant was signed on the 4th January; it was a part of Mr. Donnison's defence that the whole charge was got up as a conspiracy, in consequence of his having endeavoured to put down grog sellers and cattle stealers.

George Roberts - I am a free stockkeeper to Captain Faunce; I was employed by Drew in February last; I recollect Mr. Moore, Mr. Donnison, and Mr. Bean coming up to be tried; I was subpoenaed in the case of Mr. Moore and Mr. Donnison for the Crown; on the evening of the Monday before trial I said to Drew I wonder how the swells will get on this night week; he says I hope they'll get lagged, or I'll get myself into trouble for ironing of them without the Captain's order; I asked him how he could get into trouble for ironing them; I suppose you had the Captain's order; he said no, if I had had the Captain's order I should have been all right; he wrote a letter and gave it to me to take to Sydney, requesting me if the party got turned up to deliver it to Mr. Kellett, and bring down provisions; if they got convicted I was to take down the rations; if they were acquitted I was to take the letter back; he gave me three sugar bags to bring rations in; I did not take back any provisions, as he said he did not expect to stop in the district if they were turned up; I never mentioned this conversation until I saw in the papers what Drew swore in the other trials; I told Captain Faunce when he came down to Brisbane Water.

Crossexamined - I went into Captain Faunce's service in May last; I cannot say whether it was in the Monitor or Australian I saw it; I have no particular paper; I mentioned it to Captain when he returned to Brisbane Water; I know nothing of Drew's evidence but from the papers; I read it in a public house; Drew employed me in his garden for eleven days; I do not know of any general wish that the swells should be lagged; I gave evidence in the case respecting Mr. Moore; I have seen Drew since the trial; I did not tell him he had sworn falsely.

Reexamined - I did not see Mr. Donnison's evidence in the paper; I was particularly struck with Drew's evidence.

Mrs. Sarah Stowell - I keep a board and lodging house in Pittstreet; I remember George Roberts lodging at my house three or four months ago; he came up on Captain Faunce's trial; George Roberts left three large coarse bags in my house; there was a letter there, addressed to somebody, which I burnt; Roberts afterwards sent me a letter by Little Bill, desiring me to send the bags by the boat.

Crossexamined - I burnt the letter because I thought it was of no importance; it was burnt before he sent for the bags; when Roberts was in Sydney last time, he asked me what had become of the letter, and I told him I had burnt it, he said he was very sorry.

The depositions taken before the Magistrates at Brisbane Water, and the other documents put in by the defendant, were read by the officer.

Mr. Francis Fisher, Crown Solicitor - I hold in my hand a memorandum signed by Mr. Manning and a cattle muster; they were forwarded to Sydney by Captain Faunce with other papers; they were in my possession at the time of the trial.

Crossexamined - It was not produced at the trial; I heard Captain Faunce asked about a bill of sale, he said he did not know; at that time I had this in my hand but I do not consider this a bill of sale; had I understood these papers were wanted I should have handed them in: I think I shewed it to the prisoner's Counsel and asked if that was wanted; This document was before me when I drew the information; most undoubtedly Captain Faunce did not understand this was a bill of sale as he said he knew nothing about a bill of sale.

Mr. Donnison commenced his reply by observing that he thought he was justified in saying that the case he had opened had been fully borne out, and he was happy to say that it had been tried in different spirit to the former cases; there had been no abuse - no overbearing.  On looking at the depositions the Jury would at once see not only that there was no case of cattle stealing, but that the principal part of the charges had been shirked.  Depositions in a variety of charges had been taken, but only the depositions in the cattle stealing cases had been laid before the Jury.  Why was that; what had become of the charges of perjury, subornation of perjury, conspiracy and magisterial delinquency; was he not perfectly justified in saying that the defendant was ashamed of the depositions and had given them the go by.  After Mr. Donnison had commented on the depositions he said that he was confident the Jury by their verdict would teach magistrates who acted on instructions, when a person is brought before them on a criminal charge, to confine themselves to the enquiry of guilty or not guilty and not enquire how the prisoner stands at head quarters.  He thought sufficient had been laid before the Jury to shew them that Captain Faunce had been influenced from a high quarter and even in the manner in which he was defended there was additional proof; he was defended by the Crown Law Officers; how was this, for he felt confident that the Attorney-General could not say that he did not consider the conduct of the defendant illegal.  With regard to damages; it had been said that Captain Faunce was able to pay heavy damages, but he did not think the damages would fall on the defendant, his friends and instructors would pay them; but if he had to pay them there was an old adage "that those who cannot pay in purse must pay in person."  Captain Faunce had done him a deep a serious injury and he called on the Jury for compensation.

His Honor said that the evidence furnished a good legal defence to the charge of having imprisoned the plaintiff without reasonable cause, and therefore the jury must dismiss that part of the case from their consideration, for by the 7th Geo. IV., it is enacted that where any person is brought before a magistrate on a charge of felony, the magistrate is to exercise his discretion; the jury were not called on to say whether he exercised a sound discretion - it was enough that he did exercise a discretion.  If a magistrate acted corruptly, he was liable to a criminal prosecution, but where he merely makes a mistake in the exercise of his discretion, his conduct is not questionable.  There was no doubt the defendant had committed a great mistake, but he was not punishable by an action.  The important fact that came for the consideration of the jury, was the ironing the defendant without reasonable or probable cause.  They must enquire whether Captain Faunce ordered the irons to be put on; and secondly, whether he was justified in so doing; and he would at once tell them that a magistrate or gaoler has no right to put a prisoner for trial in irons unless he has fair and reasonable grounds for presuming that he meant to escape.  On this point he would refresh their memories by reading the evidence.  (His Honor here read the evidence of Messrs. Plaistowe, Drew, and Roberts.)  There certainly had been no evidence that the plaintiff contemplated an escape; on the contrary, he had plenty of opportunities if he wished to do so.  The jury retired at ten o'clock, and after an absence of half an hour, returned a verdict for the plaintiff, damages £350.  The Judge refused to certify for Counsel.

The plaintiff conducted his own case, but was assisted by Messrs. Kerr, a'Beckett, and Foster. Counsel for the defendant Mr. Attorney General and Mr. Windeyer.

Notes

[1 ] See also Sydney Herald, 23 October 1837; Dowling, roceedings of the Supreme Court, Vol. 142, State Records of New South Wales, 2/3327, p. 108, and see Vol. 143, 2/3328, p. 17.

See also Bean v. Faunce, 1837; Moore v. Faunce, 1837; R. v. Donnison, 1837; Faunce v Cavenagh, 1838; Donnison v. Fisher, 1838; Moore v. Faunce, 1838. For commentary on these cases, see Bean v. Faunce, 1837.  For commentary on Donnison v. Faunce, see Sydney Gazette, 17 October 1837 (twice), 19 and 21 October 1837; Sydney Herald, 23 October 1837.  The Sydney Gazette's editorial on 21 October 1837 commented adversely on the bad temper of Dowling A.C.J.  See also Sydney Herald, 31 August 1837, for its attack on Governor Bourke and Forbes C.J.

For earlier proceedings in Donnison v. Faunce, see Sydney Herald, 5 June 1837; Australian, 1 June 1837; Sydney Gazette, 3 June 1837.  For the argument concerning costs, see Sydney Herald, 26 October 1837; Sydney Gazette, 24 October 1837.

The documents in this related series of cases have been reproduced by the Gosford District Local History Study Group, under the title of The Brisbane Water Case 1837-8; Historical Records of the Central Coast of New South Wales (1989).  In his foreword, Frank Brennan provides the background to these passionate disputes.  He notes that in 1836 Governor Bourke had refused to reappoint James Mudie (of Castle Forbes, Hunter River) to the magistracy, following complaints about the harshness of Mudie's treatment of convicts.  (See Mudie v. Howe, 1836.)  In that year, Bourke also appointed Captain Faunce to the magistracy in the nearby district of Brisbane Water (which includes today's Gosford and the Central Coast).  Bourke was dissatisfied with the conduct of the local magistrates, Donnison, Bean and Moore.  Donnison wrote his own account of these events, which is included in this volume, together with some of the trial documents and a petition.

Published by the Division of Law, Macquarie University