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

R. v. Davis [1838] NSWSupC 50

assault, consent - convict discipline, legal limits on - Patricks Plains - school teacher, assault by

Supreme Court of New South Wales

Dowling C.J., 10 May 1838

Source: Sydney Herald, 14 May, 1838[ 1]

John Davis was indicted for assaulting James Mc.Alister, at St. Patrick's Plains, on the 10th of January.

The Attorney-General opened the case.  The defendant was formerly superintendent to Dr. Bowman.  Some time in January Mc.Alister, who was one of Dr. B's assigned servants, having committed some offences, the defendant caused him to be tied to a tree all night, and in the morning ordered one of the assigned servants to give him twenty-five lashes with an strap, and not being satisfied with the manner in which they were inflicted, gave him twenty-five himself.  The Jury might feel surprised that a case of common assault was brought before the Supreme Court, but the defendant had been tried on two other charges of the same nature before the Court of Quarter Sessions, when the Chairman held that as the person assaulted had consented the defendant was relieved.  With great respect for the learned Chairman who had not time then to look into the books on the point he entirely differed from him, for as the parties consented under fear of being punished, the consent was of no avail.  The learned gentleman here quoted the cases of the King v. Nichols,[ 2] in which the defendant, a schoolmaster, was indicted for an indecent assault on a big girl, where the twelve judges held that the authority of the defendant as schoolmaster awed the girl and she could not consent; and the case of Rex v. Rosinski, a medical man, where the judges were of opinion that the defendant, exercised authority as a medical man to extort consent.  The learned gentleman said, that he had caused the defendant to be brought forward on two grounds; because he considered public justice demanded it, and in order that the law on the point might be clearly laid down by the highest authority in the Colony, that superintendents and overseers may know how far their power does extend.

Mc.Alister was then placed in the witness box, when Mr. Foster said, that the defendant after hearing the law of the case so clearly stated by the Attorney General, was satisfied that he had exceeded his authority and acted wrongfully, he therefore wished to withdraw his plea of not guilty, and plea guilty, which was acceded to.

Mr. Davis was then indicted for assaulting Bryan Maloney, and pleaded guilty.  He then entered into his own recognizance of £100 to appear to receive the judgment of the Court on Saturday.

 

Dowling C.J., 12 May 1838

Source: Sydney Herald, 17 May, 1838[ 3]

 

Saturday - Before the Chief Justice.

The Attorney General prayed the judgment of the Court of John Davis who had pleaded guilty to two charges of assault.

Mr. Davis in mitigation, handed in an affidavit which stated that he was overseer to Dr. Bowman to whom Maloney and M'Alister were assigned servants; that Maloney took sheep to a run that had been frequented by scabby sheep, although he was requested not to do so, and upon being detected asked deponent not to take him to Court, which would stop his liberty, but to punish him himself which he did.  That M'Alister took sheep where there was no feed, and in like manner requested him not to take him to Court, which would stop his liberty, and that after he had punished both of them they thanked him and made no complaint for two months; the affidavit concluded by averring that deponent was ignorant that he had committed any breach of the law, but thought that he was doing justice both to his employer and the men.

The Attorney General in aggravation, said he would ask his Honor to compare the defendant's affidavit with the depositions taken before the magistrates; the facts contained in which were opened to the Jury before the defendant pleaded guilty.  M'Alister swore that he had committed no offence, that the defendant tied his arms together, and tied him to a tree from eight or nine o'clock at night until the next morning, when he caused one of the assigned servants to inflict twenty-five lashes, and then gave him twenty-five lashes with a stirrup leather; a weapon with which even the magistrates could not order a man to be flogged; the lash commonly used may cause more pain at the time, but is not so likely to inflict internal injury.  The defendant had already been acquitted on two charges of a similar nature, so that there is no telling how long the practice may have been going on.  The defendant in his affidavit says, that he was not aware that he was doing wrong, if so, all he could say was, that he was a very ignorant man, and not fit to be an overseer, who is answerable not only to his master but the public, if he break the law.  If persons in the interior take the law into their own hands, there is no wonder that men are driven to bushranging.  It is necessary that the laws respecting the Convict population be strictly enforced, and no doubt the Magistrates will do so.  The defendant only lived thirteen or fourteen miles from the Bench at Patrick's Plains, and therefore had not the excuse for taking the law into his own hands, which persons living a hundred miles off might have.  But even if the defendant was ignorant of the law, if he had not been cruel, he would not have condescended to be flogger himself, a situation which no free man in the colony will take.  In placing him in the hands of the Court, he (the Attorney-General) had done his duty to the public, as he considered it was a case that ought to come before the Court as a caution to other overseers.  The learned gentleman said it was only right to state that Dr. Bowman had dismissed Mr. Davis from his situation.

The Chief Justice said that the defendant appeared upon the floor of the Court, having been convicted on his own confession on two charges of assault.  If the facts stated in the affidavit put in in mitigation were true, they ought to have been proved at the trial.  From the depositions, it appeared that Maloney was assigned to Mr. Bowman, an extensive sheep proprietor at Hunter's River, and having done something wrong, he was bound for the purpose of being taken before the Magistrates to be tried; on the way to the Bench, the defendant gave him the alternative of either going before the Magistrates, or allowing him to flog him, to which latter proposition he reluctantly consented; the defendant then took upon himself the office of scourger, and gave him fifty lashes.  In the manner in which they were tied to the tree, there are circumstances which savour of cruelty; one of them was tied all night, and another suffered severely in his wrists, and both the persons assaulted declare it was against their will.  They have said it was against their will, but even if they consented, in point of law it made no difference, as Convict servants are not free agents, and cannot consent under such circumstances.  The Judges cannot suffer the Queen's justice to be compromised in this manner; as well might it be said that a person could give his consent to be murdered.  It had been suggested that these cases were not solitary, in fact it had grown almost into a practice, if so, it was a practice that was not only highly unlawful, but subversive of all the principles of justice.  In fact, the defendant had set the law at defiance, not only acting as an arbitrary judge in his own cause, but also as executioner, in carrying his own sentence into effect.  A large portion of the inhabitants of this colony are doomed to compulsory labour, but while they must be rigorously dealt with, they are entirely under the protection of the law.  Great difficulties often occur in the management of the Convict population in the interior; but the most effectual method is to let them feel that the arm of the laws is strong enough to coerce them.  His Honor said he had submitted the depositions to his brother judges, who had carefully considered them; and the sentence he was about to pass was not only a punishment for the defendant, but as an example to others.  The Court was ready to believe that he had acted under a grievous error, but it was necessary that an example be made, and the sentence of the Court was, that he be imprisoned six months for each offence.

 

Source: Sydney Gazette, 19 May 1838

 

Mr. Davis, in mitigation, handed in an affidavit which stated that he was overseer to Dr. Bowman to whom Maloney and McAlister were assigned servants; that Maloney took sheep to a run that had been frequented by scabby sheep, although he was requested not to do so, and upon being detected asked deponent not to take him to court which would stop his liberty, but to punish him himself, which he did.  That McAlister took sheep where there was no feed, and in like manner requested him not to take him to court, which would stop his liberty, and that after he had punished both of them they thanked him ad made no complaint for two months; the affidavit concluded by averring that deponent was ignorant that he had committed any breach of the law, but thought that he was doing justice both to his employer and the men.

The Attorney General in reply, said he would ask His Honor to compare the defendant's affidavit in mitigation, with the depositions taken before the magistrates; the facts contained in which were opened to the Jury before the defendant pleaded guilty.  McAlister swore that he had committed no offence, that the defendant tied his arms together, and tied him to a tree from eight or nine o'clock at night until the next morning, when he caused one of the assigned servants to inflict twenty five lashes, and then not being satisfied with the manner in which the punishment was inflicted, gave him twenty five lashes with a stirrup leather himself; a weapon which even the magistrates could not order a man to be flogged with; the lash commonly used may cause more pain at the time of punishment, but is not so likely to inflict internal injury.  The defendant had already been acquitted of two charges of a similar nature, so that there is not telling how long the practice may have been going on.  The defendant in his affidavit says, that he was not aware that he was doing wrong, if so, all he could say was, that he was a very ignorant man, and not fit to be an overseer, who is answerable not only to his master, but the public, if he break the law.  If persons in the interior take the law into their own hands this way, there is no wonder that men become bushrangers.  It is necessary that the laws respecting the convict population be strictly enforced, and no doubt the magistrtes [sic] will do so.  The defendant only lived thirteen or fourteen miles from the bench at Patrick's Plains, and therefore had not the excuse for taking the law into his own hands, which persons living a hundred miles off might have.  But even if the defendant was ignorant of the law, if he had not been cruel, he would not have condescended to turn flogger himself, a situation which no free man in the colony will accept.  If the men had done any thing for which they deserved punishment, it was the duty of the defendant to take them before a magistrate, who, if he considered they deserved punishment, would have inflicted it in a proper manner.  As the defendant had pleaded guilty, although at the eleventh hour, he trusted that he felt convinced that he had acted improperly and was repentant.  In placing him in the hands of the court, he (the Attorney General) had done his duty to the public, and he trusted that the publicity which the case will obtain, may act as a caution to other over overseers.  The learned gentleman concluded by observing that it was only right to inform the court that Mr. Davis had already received some punishment, as Dr. Bowman had dismissed him from his situation as overseer.

The Chief Justice said that the defendant appeared upon the floor of the Court to receive judgment, having been convicted on his own confession of two charges of assault.  After pleading not guilty in the first instance, at the eleventh hour, after the Jury had been sworn, and the Attorney-General had stated the case and proceeded to cal witnesses, the defendant prayed to be allowed to withdraw his plea, and entered a plea of guilty.  If the facts stated in the affidavit put in in [sic] mitigation were true, they ought to have been proved at the trial.  From the depositions, it appeared that Maloney was assigned to Mr. Bowman, an extensive sheep proprietor at Hunter's River, and having committed some offence, he was bound for the purpose of being taken before the magistrates to be tried; on the way to the Bench, the defendant gave him the alternative of either going before the magistrates, or allow him to flog him, and Maloney reluctantly consented to the latter; the defendant then took upon himself the office of scourger, and gave him fifty lashes.  In the manner in which they were tied to the tree, there are circumstances which savour of cruelty; one of them was tied all night, and another suffered severely in his wrists, and both the persons assaulted declare it was against their will; but even if they consented, in point of law it made no difference, as Convict servants are not free agents, and cannot consent under such circumstances.  The Judges cannot suffer the Queen's justice to be compromised in this manner; as well might it be said that a person could give his consent to be murdered.  It had been suggested that these cases were not solitary, in fact it had almost grown into a practice; if so, it was a practice that was not only highly unlawful, but subversive of all the principles of justice.  In fact, the defendant had set the law at defiance, not only acting as an arbitrary judge in his own cause, but also as executioner, in carrying his own sentence into effect.  So illegal was the conduct of the defendant, that if either Maloney or McAlister had resisted and killed the defendant, it would not in law have amounted to murder.  A large portion of the population of this Colony is doomed to compulsory labour, and must be treated with rigour, but while they must be severely dealt with, they are equally with the other portion under the protection of the law.  The law, taking into consideration the infirmity of human nature, will not allow any party to be judge in his own cause, so that, even if the defendant had been a magistrate, his conduct would have been highly illegal.  Great difficulties often occur in the management of the Convict population in the interior; but the most effectual method to deal with them is to let them feel that the arm of the law is strong enough to coerce them.  His Honor said he had submitted the depositions to his brother judges, who had carefully considered them; and the sentence he was about to pass was not only a punishment for the defendant, but as an example to others.  The Court was ready to believe that he had acted under a grievous error, but it was necessary that an example be made, and the sentence of the Court was, that he be imprisoned six months for each offence.

The Attorney-General asked what gaol he was to be sent to: Sydney gaol is always full of persons for trial, and perhaps His Honor would name a country gaol.

The Chief Justice said that the Court had passed a severe sentence on the defendant, and he did not wish to make it heavier by removing him to a gaol where he would have difficulty in communicating with his friends.

The Attorney-General said it was not with the intention of aggravating the punishment he had mentioned it, but merely because Sydney Gaol is generally crowded.

The defendant was asked which gaol he would sooner serve his sentence, and replying Sydney Gaol, His Honor ordered him to sent there.

 

Notes

[ 1]See also Australian, 18 May 1838; Sydney Gazette, 19 May 1838; Dowling, Proceedings of the Supreme Court, Vol. 150, State Records of New South Wales, 2/3335, p. 31.  The latter recorded the defendant as James, not John Davis.

[ 2]According to the Australian, 18 May 1838, these cases were John Nichol (reported in Russell and Ryan) and R. v. Peter Rosinake (reported in Russell and Moodie).

[ 3]On the sentencing, see also Sydney Herald, 14 May 1838.

Published by the Division of Law, Macquarie University