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

Ex parte Ingless, in re Wilson, 1837

magistrate, action against, Bushranging Act, vagrancy, self-incrimination, Grand Jury, criminal procedure, res judicata

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 14 October 1837

Source: Sydney Herald, 16 October 1837[1 ]

Exparte  Ingless. - In this case a rule nisi had been obtained, calling on H. C. Wilson, Esq., a stipendiary Magistrate, to shew cause why a criminal information should not be filed against him for assault.  The Attorney-General appeared to shew cause against the rule; he said that this rule had been obtained on the joint affidavit of William Ingless, and Hannah his wife and of Jane Merchant.  Although Colonel Wilson was fully aware of the circumstances disclosed in the affidavits, and had received notice to attend when the rule was obtained he did not appear to oppose it, because he considered that the Court was bound to take judicial notice of the powers vested in the Magistrates by the Bushranging Act, and the Vagrant Act, and also that this is a penal colony where persons are bound to give an account of themselves.

The Acting Chief Justice. - We are also bound, Mr. Attorney, to take judicial notice that this is a free Colony for the settlement of His Majesty's subjects.

The Attorney-General continued - The affidavit of Ingless and his wife states, that on the afternoon of Saturday, September 30th, about three o'clock, they were proceeding towards the house of Captain Richards, at Millers' Point, when they were passed by a person whom they have since understood to be Colonel Wilson; that upon William Ingless going into Captain Richards' house he left his wife in the public road, when Colonel Wilson came up to her and asked her who that man was, and on her telling him that he had better ask him, he said he would find out, and desired a constable to put her in the watch-house if she would not tell who she was; that she told the constable she was the wife of Ingless, a tailor, when Colonel Wilson said that she was an impostor, upon which the constable laid hold of her to convey her to the watch-house; that her agitation was so great that she fainted away, and on her coming to, she found the Colonel and several constables standing over her, the Colonel ridiculing her saying it was very pretty; that her husband coming up at the time and saying she was his wife, she was allowed to go away; that she is in an advanced state of pregnancy, and is still suffering under the effects of the violence offered to her.  Even if this affidavit was true, the learned gentleman contended that it was not a case in which the Court was called on to grant an information, for it was laid down in several cases, that the Court should never grant an information against a Magistrate for any thing done in his judicial capacity, unless he has acted with malice, cruelty, oppression, or corruption.  If an assault had really been committed, the parties had their remedy by action or by indictment, without the interference of the Court at all.  But before going into the case, he would call on Ingless to give up all claim to a civil action.  This was clearly laid down in the case of Rex v. Fielding, 2nd Burrows' Report, where Lord Mansfield said, that before a party was called on to disclose his defence by affidavit, it was only fair that the plaintiff should be called on to elect whether he would proceed by civil action, or criminal information.  The attorney who fished out the case would find ----

Mr. Justice Burton said, I feel it due to Mr. Lindo to state that it comes to my knowledge that he did not fish out the case, and that his conduct throughout the whole affair has been highly creditable to him.  The parties came to me to complain, and I recommended them to go to Mr. Lindo.

The Attorney General continued.  - The attorney, when the case was to him, would have exercised better judgment, and not have laid himself open to the imputation of sharp practice, if he had not brought the case before the Court at all.

Mr. Foster said, that if there was any blame in the case it was due to him, for when the facts were submitted to him, he advised, after consulting several other barristers, that the Court should be applied to.

The Attorney-General did not care who recommended that the course should be adopted; the proper and ordinary course would have been to have gone before a Magistrate and laid an information, and it was not to be presumed that the Magistrates would not do their duty because the First Police Magistrate was complained of; if they were forgetful of their duty, the party complaining could then come before the Supreme Court, and the Magistrates would be reminded what their duty really was, but he would again call on the applicant to elect whether he would proceed by civil action or criminal information.

After Mr. Foster had said a few words in reply to this claim, the Acting Chief Justice said that it is a well-known rule in British Law, that no person is bound to say anything that will criminate himself, and as whatever Colonel Wilson said in reply to the criminal information could be used against him, as evidence in a civil case the applicant before they proceeded any further must relinquish any claim to a civil action.

Mr. Foster said that he had merely opposed the election on principle, but he would at once state that a civil action was never contemplated.

The Attorney General said that he thought it right to say a few words on the character in which he then appeared, as it might appear anomalous for him to appear there to oppose the granting an information, which if granted would be in his own name.  The Attorney General always had been in practice the law adviser, and standing Counsel of the Magistrates, and whenever proceedings are taken against Magistrates for anything done in their Magisterial capacity, if the Government defends them, the Attorney General is ordered to defend.

The Acting Chief Justice. - We look on you now, Sir, as a private advocate.

The learned gentleman then at great length argued on the impropriety of Ingless' not having in the first place applied to the Magistrates, when the Acting Chief Justice said he thought that a much more judicious course had been adopted, as even the most honorable, upright and independent men must have felt a degree of embarrassment when called on to try their fellow Magistrate; and he thought it would have been more unseemly to have seen a Magistrate committed for an assault and held to bail at the Police Office, than for an information to be filed against him by leave of the Court.

In the Court of King's Bench, the learned gentleman continued, criminal information were never granted against Magistrates, unless they had acted corruptly - [the Acting Chief Justice remarked that was when they were acting judicially] - and he was sure the Court would not here.  By the Sydney Police Act, the Magistrates of Sydney are authorised to apprehend suspected persons, and how are they to ascertain who persons are unless they enquire of them?  By the Vagrant Act, and the bushranging Act, the Magistrates are empowered to apprehend parties, and in what way can thy tell who are or who are not suspected runaways and vagrants?  The affidavit of Colonel Wilson would at once shew that he was acting properly.  The affidavit stated that Colonel Wilson was going towards the watch-house from his own residence, when he saw a man with a bundle, followed by a woman, going towards his own house; that thinking it might be a man from Mr. Pendray, the tailor, with a new coat, he, after walking to a spot from whence he had a view of the constables on duty, returned, when he could not see the man, but the woman was leaning against a fence; he asked her who the man was, and she said ``go and ask him," and used a great deal of what is called bounce in Sydney slang; that he told her he intended to ask him, and would send a constable to her who would not let her go unless she could give an account of herself, and he then proceeded towards his house, still thinking that the man had gone there with his coat; that when he had proceeded a few yards he heard a noise, and thinking the woman was assaulting the constable, he directed Constable Brown who was on duty at his house to proceed to his assistance, and, upon returning himself, found that she had thrown herself on the ground; that she then said she was the wife of a tailor named Ingless, upon which deponent said that she was an impudent impostor, as he knew the wife of Ingless the tailor, and she was not the woman; that she then said her husband was in at Captain Richard's house, and upon sending there her husband came.  The affidavit of Constable Michael Ryan corroborated Colonel Wilson, adding, that the complainant pretended to faint.  The fainting and the pregnancy the learned gentleman contended had nothing to do with the matter, but were merely put in as a claptrap to enlist the sympathy of the Court and byestanders, but he had affidavits to prove that she never exhibited any weakness, and only pretended to faint.  The affidavits he had read he contended were quite sufficient to justify Colonel Wilson.  Here was a woman standing in the street, (Mr. Justice Burton - with a man with a bundle.  The Acting Chief Justice - who had the temerity to be almost within the verge of the Chief Magistrates' house.) in a place that only led to two houses; the man that was with her suddenly got out of sight, and under these circumstances Col. Wilson was fully justified in the enquiry who she was.

The Acting Chief Justice - You have not ventured to swear that you acted under either the Bushranging or Vagrant Act.  Was it not the impertinence of this woman when asked who she was that put the magistrate in motion.

Mr. Justice Burton - I cannot admit that even in Sydney a Magistrate has a right to go  up to a person and ask who are you? and send her to the watchhouse if she will not answer.  The Vagrant Act, which appears to have been drawn up with great care, give authority to the Magistrate to apprehend any person who is idle or disorderly, or who is exposing his person, and under many other circumstances, but then you must shew that the party who is apprehended comes under one of the description mentioned in the Act.  The Bushranging Act says that any Magistrate, constable, or free person having reasonable ground of suspicion, that any person is a transported felon illegally at large he may apprehend him, but then you must shew that you have reasonable grounds of suspicion, and not apprehend a quiet respectable looking female in the street in the middle of the day, because she will not answer what she may conceive to be an impertinent question.

The Attorney-General then read the affidavits of Mrs. Jobson, who saw the defendant on the ground, and swore that she did not appear to be distressed, and she did not think she was pregnant.  The affidavit of Martha Fitzgerald stated that she did not see any violence, and she thought Mrs. Ingless was drunk.  The learned gentleman here argued at great length, to shew that the proper course for Mrs. Ingless would have been to have applied to the Magistrates, or to himself, as public prosecutor.  The Acting Chief Justice said he would ask the Attorney-General whether he really thought that Mrs. Ingless should have applied to the Bench, where the Second and Third Police Magistrates were sitting, with a complaint against the First Police Magistrate, or to the Attorney-General, who is the standing counsel of the Magistrates?

The Attorney-General said that he would fearlessly state that if Mrs. Inlgess had made her complaint before the Magistrates, the public prosecutor would file an information against him the same as if the party had not been a Magistrate; Magistrates had been tried in the Supreme Court on informations filed by the public prosecutor, and however much he might be taunted by individuals, or abused by the press, if a charge is made against a Magistrate by a credible individual, he hoped the public prosecutor would always have the courage to put him on his trial.  (This is a very brief outline of the learned gentleman's address, which lasted nearly three hours.)

Mr. Windeyer followed on the same side, confining himself principally to arguments, to shew that under the practice adopted by the Court of King's Bench, no criminal information could be filed against a Magistrate, unless there was corruption in his proceedings.

Mr. Foster replied briefly, contending that the information was not filed against Colonel Wilson as a Magistrate, but as a private individual, for it would be monstrous to suppose that he had authority to act as he had done.

As the question is very important, the Court took time to consider the application.

 

Dowling A.C.J., and Burton and Kinchela JJ, 21 October 1837

Source: Sydney Herald, 26 October 1837[2 ]

 

Saturday. - Before the three Judges, in banco.

Exparte Inglis - His Honor the Acting Chief Justice said this was an application for a criminal information against the First Police Magistrate of Sydney for an alleged assault upon Hannah the wife of William Inglis, on the 30th September last.  The application was constituted in virtue of the provisions contained in the 5th section of the Statute 9 Geo. IV, cap. 83, which authorises any person, by leave of this Court, to exhibit a criminal information against any other person in the name of the Attorney General, for any crime or misdemeanor, not punishable with death, alleged to have been committed.  It is not to be denied that it was open to the party complaining in this instance to have made complaint to the Bench of Justices in Sydney, or to any Justice of the Peace for the Colony, so as to have set the matter complained of in a course of judicial enquiry; but having reference to the fact that the gentleman against whom the application is made, is the First Police Magistrate of the Territory, it may have been thought the less embarrassing course to resort to the powers of the Statute in-question, under which the Judges of this Court have a jurisdiction, in some degree analagous [sic] to that of a Grand Jury.  In doing so, however, we cannot countenance the supposition that the party complaining would not have had the most impartial justice administered by the ordinary tribunals of the land.  But whatever may have been the motives, however, of the parties in presenting the case for the consideration of this Court, the right to do so is unquestionable; and we were constrained to entertain it on that ground.  Had there been a Grand Jury in the Colony, we should at once have remitted the party to that ordinary and well-known tribunal, existing in the mother country, to seek justice; and it is only in the absence of such an institution that we have felt ourselves bound to entertain this proceeding.  This application is made against a Justice of the Peace for an act done under colour of his office.  Every intendment is made by law in favour of Magistrates; and for the wisest constitutional purposes protection is thrown around them - to secure an independent and unlettered execution of their office for the public welfare.  Whilst the law is thus tenacious of the sacredness of the office of a Magistrate, it is no less jealous of any abuse of the trust committed to its ministers.  For any breach of law, through ignorance or mistake, they are liable to an action for damages as a civil remedy; and for any corrupt or unworthy abuse of their powers, they are liable criminally.  Whatever alleged cause of complaint the present applicant may have had, he has elected to abandon his civil remedy, and has chosen to abide by this proceeding by criminal information.  It is incumbent on us, therefore, to see whether he has laid before the Court any ground which, by the general rule of law, a Magistrate is liable criminally for acts done under colour of his office; for if he has not, this gentleman is entitled to all the protection which the law affords.  By the general rules of law, a Justice of the Peace is not liable to a criminal information unless it is imputed to him, that he has been guilty of any malicious, oppressive, cruel, or corrupt conduct in his office.  In the present instance it is not charged upon the Magistrate in question, that he was influenced by any of these motives, and as we are not at liberty to infer criminality, we have no hesitation in saying that this rule must be discharged.  It remains, however, to be considered, whether we ought to discharge this rule on the terms usually adjudged in cases where an application of this kind is satisfactorily answered.  Conceding that on the occasion in question, the Justice was acting as a Magistrate in virtue of his ambulatory functions as head of the Police of Sydney; it is not foreign from this point to enquire, whether he was fairly acting within the scope of the extensive powers committed to him by law.  I trust there never will be found any disposition in this Court, to restrain the just and wholesome authority vested by law in the Magistracy of this Territory.  The peculiarly anomalous state of society in this part of the King's dominions has rendered it expedient on the part of the legislature, to vest Magistrates with powers unknown in any other part of the British dominions.  No doubt the Magistrates have very anxious, and in some instances delicate functions, requiring great discrimination and sound discretion, to perform.  Although ostensibly, this may be characterised as a penal settlement, it has for some years past been assuming the auspicious position of a free Colony of Great Britain, peopled by a vast body of native and emigrant inhabitants, naturally jealous of any infraction of personal rights of free British subjects.  A code of laws applicable to one class of the inhabitants of the Colony however numerous, requires great circumspection, when sought to be applied to another.  Several mistakes may be committed, and sometimes they will be inevitable, and when this happens, it must depend upon the circumstances of each case, whether the mistake is accidental or culpable.  The Bushranging and Vagrant acts of the Colony arm the Magistracy with very extensive powers, but those provisions are so well defined as not to lead to much abuse, when wisely and judiciously administered.  The former authorises any person employed in the Police, or any free person whatever, ``having reasonable cause to suspect any person to be a transported felon or offender unlawfully at large, immediately to apprehend such suspected person, and him to take before the nearest Justice," &c.  A remark which naturally presents itself here is, that persons of the male sex are more particularly alluded to; the word him is peremptorily used.  The latter defines who shall be deemed vagrants, such as person having no visible means of support, common prostitutes, habitual drunkards, and common beggars.  Such persons may be convicted by a single Justice on his own view.  If it had been averred in the present instance that the wife of the applicant, from her conduct and demeanour, could reasonably induce the Magistrate to believe or suspect that she fell under any of the predicaments pointed out by the local ordinance, we should have felt ourselves bound to discharge this rule with costs.  No such exculpatory matter however has been suggested in shewing cause.  Taking the affidavits on the one side and on the other, it appears in substance that about two o'clock in the afternoon on the 30th September last, Inglis and his wife, both free emigrants, had occasion to go to the house of a Captain Richards, at Millers' point, in which vicinity the Magistrate also resides, and whilst the husband went into the Captain's house with a bundle he left his wife waiting in the street till his return.  The Magistrate passing by at the time became impressed with supposition that Inglis, the husband, was carrying a new coat for himself (the Magistrate), from Pendray the tailor, and that the man must necessarily be an assigned convict servant, stopped and asked the woman who she was, without telling her who he was.  The woman gave some short answer, which seemed to give the Magistrate offence, whereupon he told her who he was, and threatened to send for a constable; she then became alarmed and told him that she was the wife of Inglis the tailer, who, it appeared by her affidavit, had just gone into Captain Richard's house.  The Magistrate believing her to be an impostor only because he happened to know two worthless persons of the same name who had given him a great deal of trouble in his official capacity, ordered a constable to go and ascertain who she was, and if she had no certificate or reference to give to put her in the watch-house.  The woman, being laid hold of by constables, resisted, and begged not to be sent to the watch-house, telling the constables who she was and where her husband was; she was either thrown on the ground or threw herself down, and being far advanced in pregnancy, fainted from the excitement, as she swore, although this latter fact is denied.  At this juncture the husband came out of Captain Richard's house, and having satisfied the Magistrate of his mistake, Inglis and his wife were allowed to go about their business.  Now, although it cannot be predicated, that in this matter the Magistrate acted from an unworthy motive, yet it is difficult to come to the conclusion, that he fairly acted within the scope of his authority, or had any reasonable ground for suspecting that this female, of prepossessing appearance, standing quietly in the street, came under any of the classes of persons contemplated by the Bushranging or Vagrant Act.  It is this view of the case which induces us to think that whilst we are of opinion that the rule for the criminal information should be discharged, yet that it ought to be discharged on payment of the costs of the application.

The Attorney-General said that he did not think there was any precedent for a Magistrate being compelled to pay costs when an information was dismissed.  There was matter stated in the judgment which was not authorised by the depositions.

The Acting Chief Justice said that he would not allow the Attorney General to state that.

The Attorney General said that it was not stated in the depositions that the applicant was a young woman of prepossessing appearance; that contained an insinuation which was easily seen through, and he could not allow it to go to the public uncontradicted.

The Acting Chief Justice said that the applicant was pointed out in Court, and she certainly was a young woman of prepossessing appearance.

Mr. Justice Burton said that the Court decided on making the Magistrate pay the costs, because they considered that though he had not acted corruptly, he had acted illegally, it was a suggestion of his Brother Kinchella.  The woman came for redress and did not obtain it, and it would be a hard thing to make her pay costs.

The Acting Chief Justice said that in case of the King v. Macarthur, the Court ordered the defendant to pay costs, although they dismissed the application for an information.

The Attorney General said he was not aware of this case, or he should not have made the remark he did; there was no case in the English books.

 

Dowling A.C.J., and Burton and Kinchela JJ, 26 October 1837

Source: Sydney Herald, 2 November 1837

Thursday. - In Banco - Before the three Judges.

On their Honors taking their seat, Mr. Windeyer said, that he had been instructed in the absence of the Attorney-General to move their Honors to suspend a rule of Court of the time of James I, by which any barrister is liable to be attached who moves in any matter in which the Court has given judgment.  As there are many cases in the books to shew that the Court had not authority to compel Colonel Wilson to pay the costs of the application for the criminal information when the Court had dismissed the rule, it was on that point it was wished to address the Court, but it was requisite that the rule should be suspended.  The question could be raised in another way, for Colonel Wilson had declared that he would not pay the costs, and the matter would then come before the Court on attachment, but it was thought more respectful to come before the Court at this time.

Mr. Justice Burton said that Colonel Wilson would of course follow the advice of his legal advisers, but he did not think it was modest to tell the Court that a party intended to disobey their order, and then call on the Court to suspend one of their rules, because he intended to disobey.

The Acting Chief Justice said that the matter must take the due course of law; the rule could not be suspended.

 

Dowling A.C.J., and Burton and Kinchela JJ, 30 October 1837

Source: Sydney Herald, 2 November 1837[3 ]

The Attorney-General said that in a case which had been disposed of, he had a motion to make to the Court, if their Honors would allow him and Mr. Windeyer to be heard.  Part of the order of the Court was made in a manner that he felt confident it would not have been made, if Counsel had been heard on the point.  He alluded to the case of Col. Wilson, who had been ordered to pay the costs of Ingliss's application for a criminal information and it was on this point he wished to address the Court.

Mr. Justice Burton would suggest to the Attorney General to ask himself whether he was quite satisfied with the course he was pursuing; he had been heard when the question was before the Court, as fully as he pleased; and if he did not address himself to the question of costs, the Court could not help it; he had never heard of such a thing, as a case being opened merely for costs.  He hoped the Attorney General had not forgotten the rule of Court respecting barristers moving in a decided case, and he must say that after the Court had made an order, he did not think it was respectful in an advocate to resist the order.

The Attorney-General said, that if their Honors would hear him, he had no doubt he should be able to convince them, that they had not jurisdiction.  Perhaps, when the question again came before them they would grant a rule nisi, instead of an attachment; and then the matter could be argued.

Mr. Foster said that he had never heard of such a request as the Attorney General's, and he was confident their Honors could not think of opening the case again.

The Acting Chief Justice said that if the Court had given an erroneous judgment, there was a way to set it right; but they could not hear an advocate on the point.

Mr. Justice Burton said that if Col. Wilson should be so advised, he must go the King in Council, he felt no doubt as to the order of the Court being quite right both in law and equity.

Notes

[1 ]See also Australian, 17 October 1837; Sydney Gazette, 17 October 1837.

 For commentary, see Sydney Gazette, 17 October 1837 (twice), 19 and 24 October, 4 November 1837.  For editorials on convict jurors, see Sydney Gazette, 28 February 1837; Sydney Gazette, 9 March 1837; Sydney Herald, 27 April 1837; Sydney Herald, 20 July 1837.

[ 2] See also Sydney Gazette, 24 October 1837; Australian, 24 October 1837.

[3 ] See also Sydney Gazette, 2 November 1837.

Published by the Division of Law, Macquarie University