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

Charman v. Flanagan [1847] NSWSupC 12

magistrate, action against

Supreme Court of New South Wales

Stephen C.J., 11 October 1847

Source: Sydney Morning Herald, 12 October 1847, in Supreme Court Collection, Vol. 2, p. 17

Sir ALFRED STEPHEN delivered the judgment of the Court in this case as follows:-

At the last trial of this cause, which took place before myself, the defendant's counsel took a new objection; founded on the statute 21 Jac. I. c. 12. s. 5. That section enacts, among other things, that, where an action is brought against a Justice of the Peace, concerning anything done by him by virtue of his office, such action shall be laid in the county where the fact was committed; and that, if the plaintiff shall not prove at the trial, that the fact was committed within such county, then the Jury shall--- without regard to the evidence touching the facts--- find the defendant not guilty. The defendant, therefore, claimed a verdict on the issue of not guilty; the venue being laid at Sydney , but the trespass having been committed in the county of St. Vincent. Three points were then taken, for the plaintiff; 1st , that not guilty should in such cases appear to have pleaded 'by statute'--- which the plea here was not; 2ndly, that the provision relied on was not in force, or available to defendants, in this colony; and 3dly, that even if it were, the defendant was not within the protection of the statute, as he had acted entirely without jurisdiction, or any reasonable ground for supposing that he had jurisdiction, as a magistrate, in the matter in question.

This case having been before the Court on a former occasion, it will be sufficient to state here a few of the facts merely. The defendant was proved to have been in fact a magistrate, and the warrant which he issued, directing the seizure complained of, was issued (or meant and supposed by him to have been issued) in that character. It was admitted, however, that the defendant had no authority, in point of law, to issue any such warrant; and it was clear, that it was in respect of a matter, in fact, over which he had no manner of jurisdiction. The warrant was to take the goods, as the property or supposed property of an intestate person, at the instance of the Collector of Intestate Estates. But over such a matter, (no felony having either been committed, or alleged to have been committed by the plaintiff, in respect of those goods,) a Justice of the Peace had no more authority, than over any other disputed case of property. I left it to the Jury to say, however, whether the defendant did or not intend to act, and I really believe that he was acting, as a magistrate; and, if they thought that he was, I instructed them to find for him--- reserving leave to the plaintiff, to move to enter the verdict the other way, if the Court should think the defence of the statute unavailable to the defendant. The Jury found for the defendant, accordingly, on the plea of not guilty. The issue on the plea denying the property to be the plaintiff's, (in which the question turned on the former occasion,) was found for the plaintiff, with £5 damages.

At the late Special Sittings, Mr. Lowe moved to enter the verdict for the plaintiff, on the issue of not guilty also; pursuant to the leave reserved. He took the same exceptions to the defence, that were taken at the trial; relying most on the objection that even supposing the enactment as to venue to be in force, the defendant was not entitled to its protection. It was clear, said the learned counsel, that the act done by the defendant was not 'by virtue' of is office:- he was, therefore, not within the words of the statute. And, according to the cases, a magistrate can only be brought within the extended construction given to those words, where he had not merely intended to act, and believed that he was acting, by virtue of his office, but where he had reasonable grounds for that belief. In support of this position were cited Cook v. Leonard, 6 B. and C. 351; Wedge v. Berkeley , 6 Ad. And El. 663; Jones v. Gooday, 9 M. and W. 745; and Cann v. Clipperton, 10 Ad. and El. 582. --- On the contrary, Mr. Windeyer for the defendant contended that the bona fide intention to act, and belief that he was acting as a magistrate, were sufficient. The learned counsel maintained further, that the question of reasonable ground for belief was for the Jury, and should not have been determined by the Judge.

We have considered these questions, and being of opinion on them with the plaintiff, it is unnecessary for us to go into the other points taken. All the cases on the subject, perhaps, cannot be entirely reconciled. It will be observed, however, that this is not a case merely of excess of jurisdiction, neither is it one where the question is as to reasonable suspicion --- or any other matter partly of law and partly of fact. It is a case in which the defendant, as a magistrate, had no jurisdiction whatever. Not only was it wanting in this particular instance, but it did not attach to the subject matter. It never could be a question of fact, therefore, whether the defendant had reasonable cause for supposing, that he had such a jurisdiction. If a Justice of the Peace were to issue a warrant, in a case of ordinary debt, or verbal defamation, on what ground could it be left to a Jury to day, whether he had reasonable cause for thinking that he had such authority? What fact would be involved in such an inquiry? Here the general character and powers of a magistrate authorised no portion of the act done. It was a matter, not merely not within--- but wholly alien to, the jurisdiction of a magistrate. This being itself a question with the cognizance of the Judge, not the Jury, it appears to us that it was a question necessarily of the same character, whether fair or reasonable grounds existed, in the mind of the magistrate, for thinking that he had such a jurisdiction. In Wedge v. Berkeley , the question of reasonable suspicion was a mixed question; on which a Jury had to judge, from all the circumstances. In that case, the defendant had a general jurisdiction over the subject matter. He detained a person on suspicion of felony; and, had there been reasonable grounds of suspicion, the defence would have been complete without the aid of any statute. But here the question is, as to the defendant's belief that he had jurisdiction, in a case clearly and obviously beyond, and entirely beside it. And, after examination of the cases, although there are undoubtedly expressions in some of them, apparently militating against the doctrine, we are of opinion that such a belief, in itself, without reasonable grounds, is not sufficient to being a magistrate within the protection of the statute. We are further of opinion, that there were in this case no such grounds. The verdict on the first issue, therefore, as well as on the second, must be entered for the plaintiff.

Published by the Division of Law, Macquarie University