Skip to Content

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

Thorn v. Hunt [1838] NSWSupC 95

drunkenness, offence of - magistrates, action against - assault - damages, assessment of - damages, contemptuous

Supreme Court of New South Wales

Burton J., 17 October 1838

Source: Sydney Herald, 19 October 1838[ 1]

Thorn v. Hunt and others. - This was an action of trespass, damages, laid at £500.  The plaintiff is a resident at Parramatta, and the defendants are the chief and two ordinary constables of that district.  The declaration charged the defendants with assaulting the plaintiff and forcibly taking him to the watch-house, and there without any reasonable or probable cause detaining him for a long space of time.

The principal witness in this case was a constable named Horn, who swore that by directions of the Chief Constable he assisted two other constables to take Mr. Thorn to the watch-house, where he was detained about two hours when he was bailed out, and on the following morning discharged by the Magistrate without any punishment.  Horn, who fenced with his evidence a great deal, said that he did not consider Mr. Thorn was drunk, but admitted that when he was sitting on a stool in front of the watch-house he fell down upon attempting to get up to speak to Mr. Campbell, the Police Magistrate, and that the next morning Mr. Thorn said that Mr. Hunt was on horseback when he ordered him to be confined, whereas Mr. Hunt had not been on horseback that morning.  Horn acknowledged that in his opinion a man was not drunk while he could either walk or talk.  The only other witness called was a relation of the plaintiff, who saw him going to the watch-house, and was of opinion he was not drunk.

No witnesses were called for the defence, but the Attorney-General in an address of considerable length argued that if the Jury believed that the plaintiff was drunk and disorderly in the street, the defendant was perfectly right in ordering him to the watch-house, and although there was at that time no law to authorise the apprehension of drunkards out of Sydney, he was sure that in performing his duty Mr. Hunt would be protected by the Jury.  The fact was, that by the strict and proper manner in which Mr. Hunt discharged his duty there was a combination of all the drunken blackguards of Parramatta against him, and a fund had been raised to meet the expenses of prosecuting and annoying him, but he trusted that the result of this trial would show them that it was all in vain.

His Honor[ 2] said that it having been proved that the plaintiff was conveyed to the watch-house by the defendant's order, they were bound to show that they had reasonable and probable cause for so doing, in order that the jury might see that they were justified, for no man can be apprehended and taken to the watch-house except for a known cause.  It may be very proper to take up drunkards in the streets, in fact nothing can be more so, but then there must be a law for it, which at that time there was not, and if the law did not authorise the apprehension of a drunken man in the street the constable had no right to take him.  If the Jury went along with him in these remarks then arose the question of damages, and on this point he thought it was evident that Thorn could not have been sober, and although it was not then lawful for the defendant to take him up on that ground, the Jury would bear it in mind in estimating the damages.  The Jury retired for a few minutes and returned a verdict of the plaintiff, damages one farthing.  His Honor said that the Jury had returned a very proper verdict; it was a verdict according to law, and under the circumstances he did not think such a person as the plaintiff was entitled to any damages.

Mr. a'Beckett applied to His Honor to certify under the statute 43rd Elizabeth, and deprive the plaintiff of costs.  Upon this point a lengthy argument took place, Messrs. Foster and Windeyer contending that this was not a case within the statute. His Honor held that the case came within the statue [sic] as there had been no actual battery; a blow being necessary to constitute a battery, the mere laying on of hands to convey to the watch-house was not sufficient.  His Honor however refused to certify, but said that if he thought that by not doing so he should be encouraging actions of this kind he would.  In this case the plaintiff had been illegally taken to the watch-house, and he did not consider he ought to be saddled with costs, but if other cases of the same kind were brought he certainly would certify.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant the Attorney-General and Mr. a'Beckett.



[ 1]See also Australian, 18 October 1838.

[ 2]The Australian, 18 October 1838 reported the following: ``His Honor in summing up remarked, that although every support ought to be given to officers in the proper execution of their duty, yet protection must also be given to the subject against an overstretch of that authority.  It appeared evident that the plaintiff had been in custody, and it was not shown what he was in custody for.  It was incumbent on the defendant to show that.  The only offence offered to be substantiated was that of being drunk, and however desirable it might be that there was a law for the arrest of drunkards, yet it required that a law should exist, and he was bound to tell them, that at the time of the arrest there was no law to authorise the apprehension of drunkards.  It would not do for any man to be arrested on the mere supposition of an officer, even if a law did exist; many prudent men might by chance get drunk once, and it would be intolerable that he should be dragged through the street at the caprice of a constable.  If the Jury found that there had been an illegal arrest they would find for the plaintiff; and the next question would be that of damages, which they must estimate from the general character of the plaintiff, as it had appeared before them."

Published by the Division of Law, Macquarie University