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

Ryan v. Wilson [1839] NSWSupC 11

assault - magistrates, action against - convict service, assignment of - Fort Macquarie

Supreme Court of New South Wales

Dowling C.J., 14 March 1839

Source: Australian, 16 March 1839[1] 

THURSDAY. -- Before the Chief Justice and the following Special Jury:-- Major Lockeyer, Foreman; Messrs Johnstone, How, Fotheringham, Gore, Barrow, Crawford, Mitchell, Edmund Lockeyer, Moffatt, Hume, and Mackenzie.

Ryan v. Wilson. -- This was an action to recover damages for an assault; the damages were laid at £500.

Mr Raymond opened the pleadings; the declaration contained two counts; the first alledging [sic] the assault to have been committed by pulling, shaking, and dragging the plaintiff about; the second count was for a common assault. To this declaration the defendant first pleaded not guilty; and secondly, that the defendant had committed the first assault, and that he had used no more violence than was necessary to defend himself from the plaintiff. To the latter plea the plaintiff replied that the injury done to the defendant, was in his own wrong.

Mr a'Beckett addressed the jury at some length, describing the plaintiff as a gentleman of high character, who had held government appointments for upwards of twenty years, with credit to himself, and advantage to the government. The defendant was First Police Magistrate of the Territory, and the assault complained of was committed on the plaintiff, when in the proper discharge of his official duty. The case had been brought before the Sydney Bench, in another form, when the defendant had been the accuser, and the plaintiff the accused, but that case had been dismissed by the bench, who could find no ground for the complaint, and it would have nothing to do with the present action. He would now call witnesses to establish the assault.

Captain John McLean. -- I am Principal Superintendant [sic] of Convicts, and know the plaintiff, who is chief clerk in my office. His duties are to attend at the disembarkation of female convicts, and to discharge them to their proper assignees, on the production of a bond previously signed by the assignees, and brought by them or any person they may send; I remember the female convicts by the Diamond, being disembarked on the 12th April; the plaintiff asked me (I was present at the disembarkation) whether two women should pass out before the Roman Catholic Bishop had finished his Address; Mr Ryan was there on duty with his documents, to pass out the women as they were called; I was moving about, not stationary in any particular place, when Mr Ryan asked me if the women should be passed; I answered ``certainly not;" there were several persons present, and females amongst them, but I could not name any of them particularly. Shortly after this, I was outside the door in the yard walking about, and happening to look towards the doorway, I observed Colonel Wilson apparently attempting to pass two women out; he was making way for them at the door-way, and Mr Ryan appeared to be objecting to their passing from the action of his hand; I was not near enough to them to hear what was said; at this time, Mr Ryan came more in front than when I first observed him; there appeared to be a little bustle about the door-way, and I then discovered that Mr Ryan and Colonel Wilson had come in contact, and I moved forward to ascertain more distinctly what was going on; when I got nearer, I discovered that Colonel Wilson had hold of Mr Ryan by the throat, and that Mr Ryan had hold of him by the arm or by the coat; I heard Colonel Wilson say ``don't collar me Sir;" Mr Ryan was bent very much back, and appeared to be preventing Colonel Wilson from falling on him; I believe that there was a door behind Mr Ryan, but I am not certain whether he leant upon it; when Colonel Wilson said don't collar me Sir, he let go, but almost immediately resumed his hold, saying ``he would collar any man who collared him;" I cannot say that Mr Ryan applied to Colonel Wilson to let him go; when I got close to them, I held out my hand and said, Gentlemen, I beg you will desist; Colonel Wilson had no right or authority to pass these women out, and if Mr Ryan had allowed them to pass, he would not have done his duty; there was a peculiarity attending those women; one of them had been assigned to Mr Barker, and the other to Mrs Wylde, there was a proposal made to exchange the women, as Mrs Plunkett wished to have them both, and would give other women in their place to the assignees and I rather think the proposal came from Col. Wilson, but I won't swear in it. I said there could be no objection provided the sanction of the assignees was obtained, but not otherwise; no transfer had taken place at that time; Mr Ryan was aware that that application had been made for the transfer, and communication made to Mrs Wylde and Mrs Barker for that purpose; the application was made before the affray took place; Mr Ryan had the assignment book under his arm and a pen in his hand when he was at the door; It was at my interference that Colonel Wilson desisted; I gave evidence respecting this matter at the Police Office; Colonel Wilson was complainant; I cannot recollect the names of any persons who were close to the scene Dr Poulding come up almost immediately after I had gone to the door myself; the constables duty is to see that no person is admitted into the yard where the women are confined, until sent for; I recollect threats made use of by Col Wilson; he said that Mr Ryan had acted very improperly in stopping him; I heard Colonel Wilson call out to a constable to take Mr Ryan in charge; there were constables about the door, but they did not come forward on that call.

By the Attorney-General. -- Port Macquarie, where the female prisoners were placed when landed, is in the domain; it is surrounded by the walls of the fort where the cannon are placed; the women were in the green plot inside; there were five or six ladies and five or six gentlemen who were there by courtesy; I don't consider Colonel Wilson was there in the course of his duty; I should not prevent any respectable gentleman from entering; if any further order were necessary besides the general orders, the First Police Magistrate was there to give them; I don't consider Colonel Wilson was there on duty; the Bishop and the Roman Catholic Bishop were there by courtesy certainly, but the clergy are always admitted; I was walking about in the round tower at the entrance to the fort; I think Mr Ryan mentioned that Colonel Wilson wished to pass the women out, but I am not positive of it; I rather think the Bishop had not finished his address when he applied to me; I cannot form a correct opinion of what Mr Ryan's motives were in wishing the women not to be passed; I am not aware that Mr Ryan had a great liking for Colonel Wilson; I know that Mr Ryan had no good feeling towards Colonel Wilson, and I believe Colonel Wilson had a similar bad feeling towards Mr Ryan; I do not know how far this feeling went; he had not a good opinion of Colonel Wilson; Mr Ryan did his duty in preventing the women being sent out before the regular forms were gone through; I heard that Colonel Wilson got a letter of recommendation from Major Bourke, Police Magistrate of Inniskillen, about the two women, who were sisters; and I believe Mrs Plunkett wished to have them; I do not know that any women were passed out that day without the regular bonds being executed; there is a government order to perform those bonds, and they are always entered into; I have never reported a breach of that order, otherwise I apprehend it would have been taken notice of; on particular occasions I have dispensed with the usual bond; it is done in all cases in Sydney, but I am not prepared to answer that it has been done in every case; but according to the strict letter of the law, Mr Ryan had no right to let them go before the transfer had been made to Mrs Plunkett; if Mr Ryan had not interfered the women would have gone out of the door, and then the police might have passed them on; if Mr Ryan had referred the case to me, I should not have scuffled with Colonel Wilson, who had no right or authority to pass any one out; it had nothing to do with his government duty; if they had got outside the door they might have been brought back if they had not got amongst the crowd outside; Mr Ryan put his hand out, and Colonel Wilson put his hand out, but I don't know whether the hands touched at first; Colonel Wilson held Mr Ryan down at arms' length; I did not hear Colonel Wilson say any thing about striking him or touching him; the only expression I recollect hearing was ``don't collar me, sir", and Mr Ryan resumed his hold after having left go his hold, saying, ``I'll collar any man who collars me;" this was when Colonel Wilson had Mr Ryan against the wall inside the Fort, and nearly in the door-way; Mr Ryan stood between me and the woman, and I cannot say where Col. Wilson stood at first; Mr Ryan was not particularly cool after the affair, he was not very well pleased; there were some remarks made by him to Colonel Wilson in the door-way, but I cannot recollect the exact words: Mr Ryan threatened to report the matter and make him suffer for his aggression, and the Colonel made use of the same; I should think persons might make use of a great latitude of language after the irritating conduct which occurred; I must say that if Col. Wilson had used me in the same way as he did Mr Ryan, I should have made use of very harsh language if I thought that the best mo[d]e of taking satisfaction; I do not remember Colonel Wilson saying that he would make Mr Ryan suffer for assaulting him; if I used the word assault I used it inadvertently; he might have used it, but I wont swear he did or did not; I did not hear him; when Mr Ryan applied to me as to whether the women should be passed out, and made use of Colonel Wilson's name, if Colonel W. had been near me I should have spoken to him on the subject; I did not think the case was of any important; I consider that if Colonel Wilson wished the women to go out he might have come to me about it, Colonel Wilson spoke to me about the women in the morning, he said that they had been recommended, and he wished them to be assigned to Mrs Plunkett; Colonel Wilson spoke to me several times about the women, therefore I think there was greater reason why he should have come to me about them; I do not remember whether any thing was said about the transfer at the time; Mr Ryan had mentioned to me that the transfer was not made; I don't know that any person came for the women at the time; after the affair I told Colonel Wilson that if he chose to take charge of Mr Wyld's woman as her agent he might take her, and return her if the transfer was not completed afterwards; I told Colonel Wilson I could not discharge the woman unless he would take charge of her as Mrs Wyld's agent, but that he might have taken her in that capacity; I would not have let any of the women go until the Bishop had finished his address; I do not know that the Bishop had finished at the time of the scuffle; the whole scuffle was over in less than a quarter of a minute; it was as short as you can well imagine any thing of the sort; I saw Colonel Wilson's and Mr Ryan's hands going, the one beckoning forward, the other beckoning back, to the women.

By Mr Raymond. -- I gave Colonel Wilson no authority to act in any way; he did not ask for it; I cannot say who was the first assailant, otherwise I suppose it would prevent any further trouble; I have an impression that there was a mutual misunderstanding between Colonel W. and Mr Ryan.

Zacharia Wilcox. -- I am a boot and shoe-maker; I remember being at Fort Macquarie in April last, when the women were landed from the Diamond; two women were coming out of the front door, and Mr Ryan said they could not go; Colonel Wilson came up and said they should go out, that he would pass them out; Mr Ryan said they should not, putting up his hand to stop them; Colonel Wilson walked up against Mr Ryan's arm, and a scuffle ensued; Colonel Wilson then walked up to the other side and pinned him up against the wall; he moved him across the room; he pinned him against the wall with both hands at first, and then he dropped the left hand and held him with his right; Colonel Wilson then carried out ``constables come and take this fellow out of my way," or words to that effect; Mr Ryan had the muster roll under his left arm, and a pencil in his right hand; Bishop Poulding and some one else came and interfered, and they were parted.

By Mr Foster. -- When Mr Ryan said that the women could not go, he put up his arm towards the women; when Mr Ryan put up his hand I turned round to speak to another person; I turned my head quickly, and immediately turned it back again; I do not think any thing could have occurred during the short time, I turned to speak to Sergeant Major Moore; the scuffle attracted every person's attention that was near enough; Mr Ryan retained the muster roll and pencil.

Sergeant Major Moore. -- I was present at the landing of the female convicts by the Diamond at Fort Macquarie, last year; it appeared to me that Colonel Wilson wanted to pass some women out, and Mr Ryan said they should or could not go; a scuffle ensued between them, and when I turned towards them, I saw Colonel Wilson have hold of Mr Ryan by the shirt neck with one hand, and the body of the convict with the other; Mr Ryan had hold of Colonel Wilson; Mr Ryan was in a bent position, and they were struggling with each other; I heard Colonel Wilson say, ``don't interrupt me in my duty;" he called for a constable.

By Mr Windeyer. -- I heard Mr Ryan say that Colonel Wilson had no business there; this was said in a loud tone; Mr Ryan was between me and Colonel Wilson; Colonel Wilson's face was before me and Mr Ryan's back was toward me; Mr Wilcox's face was more towards them than mine was; I was talking to Mr Wilcox, and he was talking to me; he had no occasion to turn to talk to me; the passage in which they were standing was about four or five feet wide, and the wall was thick.

Edward Norman, Chief Constable at Yass; I was a Fort Macquarie when the female prisoners were landed from the Diamond; I was then police runner at the Principal Superintendent of Convicts Office; I was in the Fort when Colonel Wilson was passing from the Fort yard to the outer door; two females were following him; Mr Ryan said stop you cant go out; Colonel Wilson said ``come on" beckening to the women; Mr Ryan said ``go back," Colonel Wilson again said ``come on," and Mr Ryan said ``they shan't go out;" Colonel Wilson then turned towards Mr Ryan and said ``how dare you interrupt me on my duty," at the same time forcing Mr Ryan on one side of the passage, with his hand on Mr Ryan's neck; Mr Ryan remained in that posture until relieved by Captain McLean, and the Captain of the Diamond; I was within three or four feet of them; I think Mr Ryan had papers under his arm at this time, but I cannot say if he had any thing in his hand; Mr Ryan said ``I'll make you pay for this," after he was released, and Colonel Wilson said ``I'll send you to the watch-house," and called out for constables; Mr Ryan said ``I dare you, I'm as good a man as ever you was, Colonel Wilson;" this was after the assault was committed.

By the Attorney-General. -- I am Chief Constable at Yass, the Principal Superintendent of Convicts and Mr Ryan got me the situation.

This was the case for the prosecution.

The Attorney-General addressed the Jury. He had often admired the address of his friend, Mr àBeckett, in decking out a case so as to baffle the judgment of his audience, and he equally admired the poetical imagination for which was famed, which threw a pleasing tint over a very bad cause; but all his former admiration was shrouded by the very ingenious and highly coloured statement of the facts which it would be his (the Attorney-General's) duty to place in its actual state before the Jury, and on which alone they must find their verdict. His learned friend had dwelt most poetically on the insulted feelings of his respectable client, but he would ask the Jury, was not Colonel Wilson allowed to be possessed of any feeling? Was Mr Ryan to monopolise all feeling to himself, and stand alone as the only one entitled to vindicate the insulted feelings of a man and a gentleman? Had not Colonel Wilson some claim to the character of a gentleman -- of a man possessed of as sensitive feeling as was Mr Ryan? He thought the Jury would admit this; and he would shew them that this was not a sudden ebullition of feeling on the part of Mr Ryan; it was not the hasty expression of the moment, but a premeditated insult to Colonel Wilson for former grudges borne towards him by the plaintiff. He would shew them, if it had not already been sufficiently evident by the witnesses on the other side that Mr Ryan committed the first assault, and that Colonel Wilson, placed as he was, would not have acted as a man if he had not noticed the aggression of Mr Ryan in the way he did; and he would appeal to any of the Jury whether, had they been placed in the situation of the First Police Magistrate, insulted by a subordinate, (and in saying subordinate he did not wish to detract from Mr Ryan's acknowledged usefulness, but subordinate he certainly was, and his superior -- the head of his department was on the spot, and might have been appealed to) in the face of his own constabulary, and in the presence of several ladies and gentlemen -- he would ask the Jury whether they would have behaved with equal moderation, or whether they would not rather have knocked Mr Ryan down for his impertinence and his violence. From the evidence which had already been laid before them, he called on the Jury to say whether the uncalled for and indecent conduct of Mr Ryan could be attributed to his zeal in the performance of his duty, which had been so much landed, or whether it did not arise from the previous ill feeling which he had towards Colonel Wilson. The Jury had been told that it was his duty not to let the women out until the execution of the usual bond -- yes, the letter of the bond was exacted -- but they would observe that the bond formed no part of the objection at the time! No, the objection then was that the Bishop had not ended his discourse to the women; nothing was then said about the execution of the bond, which was now introduced to colour the transaction, and he begged to direct the attention of the Jury to the evidence of Captain McLean, who stated that these bonds were simply a matter of form, never enforced, and seldom attended to where the parties were of known respectability. The Jury would have observed that a colouring had also been attempted to be given, by designating this a very peculiar transaction, and a good deal had been said about the transfer of the women from one to another; but was there any thing extraordinary in Colonel Wilson being desirous to provide women of good character, in whose recommendation he had received letters from a Police Magistrate in Ireland, with good services. No, this circumstance was trivial, and introduced simply to make Mr Ryan appear active in the discharge on his duty; and they could not, he thought, come to the conclusion that Mr Ryan was actuated by his duty alone when he refused to let the women pass with the First Police Magistrate. The Jury could not cast aside the testimony of Captain McLean, who, although he appeared to be (and perhaps very naturally so, as the head of the department to which Mr Ryan belonged) some little influenced in Mr Ryan's favour, had given his evidence very clearly and certainly justly, that Mr Ryan had ill blood to Colonel Wilson; that, in fact, they had ill blood to each other, for what reason Captain McLean could not tell -- indeed so unaccountable was Mr Ryan's dislike to Colonel Wilson that he appeared to have as little cause for dislike as the song attributed to the author of the words --

"I do not like you, Dr. Fell,

The reason why I cannot tell,

But this I know, and that right well,

I do not like you Dr. Fell."

From this previous unaccountable dislike, Mr Ryan had seized the moment when he was clothed with a little brief authority to insult his foe, although he might easily have avoided any contact with Colonel Wilson, by referring him to Captain McLean, who was on the spot. But no -- he would not let slip so fine an opportunity to insult his superior before his constables, whose duty it was to respect the authority which they then saw insulted by Mr Ryan the clerk, that great man who was described as being so much admired and so much sought after. Could it be supposed that the Chief Police Magistrate, if his temper had been ever so violent, would have condescended to scuffle with a subordinate in the presence of the ladies and gentlemen present, if there had been a possibility of his forbearance without an imputation on him? Was Colonel Wilson to stand still, with his arms at this side, and peaceably allow Mr Ryan (who, by the by, was described by the witnesses to have been rather pugnacious, if he was to be judged by his language) to insult, to strike him without offering any resistance. There certainly was no evidence of the posture into which the gentle Mr Ryan threw himself, but the Jury might infer by his expression ``I'm as good a man as you any day, Colonel Wilson," that it was not the most peaceable attitude, and what would have been more natural than for any man when so challanged [sic] -- when he saw a man going towards him with threatening gestures, then to knock him down on the spot, not to coerce him with necessary force as it had been proved Colonel Wilson had done. But he would [???] situations of the parties -- Mr Ryan was there in the [execution] of his duty no doubt, and his superior, Captain McLean, was also present to superintend the assignment. Constables were there to keep peace, and see every thing done with order, and Colonel Wilson was there as the First Police Magistrate to superintend the constables, and deliver orders to them for their conduct, and in such capacity, Mr Ryan thought that it was a good chance, and that it would be very popular to oppose the Chief Police Magistrate, and establish his own brief authority before the ladies. But he thought it would be evident to the Jury that the first aggression came from Mr Ryan. The witnesses all spoke of seeing his hands raised, and one witness spoke of having seen the hands of both parties moving about previous to ultimate close contact, which had been spoken to. It appeared by the evidence for the plaintiff, that when Colonel Wilson had hold of Mr Ryan, holding him back, he made use of the expression ``don't collar me Sir," from which it might reasonably and fairly be inferred that Mr Ryan had, in the first instance, collared the Colonel, and this was a matter peculiarly for the consideration of the Jury; and if such was the case, he would tell them, and His Honor would tell them that if the conduct of Mr Ryan was such as to impress Colonel Wilson with the idea that Mr Ryan intended to assault him, he was not only justified in restraining him, but if his hand had been raised, he would have been justified in knocking him down. He begged to call their attention to the fact that none of the witnesses spoke as to who committed the first assault, which they must judge of by the actions of the parties, and the language which had been deposed to, and even if they were of opinion that an assault had been committed by Colonel Wilson, they must then consider the circumstances of aggrevation, under which it had been committed and regulate the damages accordingly, and he could not help remarking on the bad taste and ill blood which was evidence, in bringing this action with the Supreme Court. If any assault had been committed, it ought to have been taken before the proper tribunal, the Bench of Magistrates, whose jurisdiction extended to £5, and not be brought into a Court where the only verdict the plaintiff could expect at the hands of the Jury, was one similar to that delivered by a Jury of his countrymen, ``sarved [sic] him right," and that was the verdict he (the Attorney-General) shouldexpect [sic] from them. He should call no witnesses.

His Honor summoned up at great length, laying down the law of assault and recapitulated the whole of the evidence; and the Jury having been absent a couple of hours, returned into Court, and delivered their verdict for the plaintiff. Damages one farthing.

His Honor certified for two Counsel and a Special Jury.

Counsel for the Plaintiff, Messrs áBeckett and Raymond. The Attorney-General, Mr Foster, and Mr Windeyer for the Defendant.

 

Notes

[1]  See also Sydney Gazette, 16 March 1839.

Published by the Division of Law, Macquarie University