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

R. v. Barker

assault, on constable - magistrate, criticism of

Supreme Court of New South Wales, Port Phillip

Willis J., 15 July 1841

Source: Port Phillip Patriot, 19 July 1841

Joseph Barker stood indicted for an aggravated assault on George Vinge, a constable, while in the execution of his duty, at Melbourne, on the 7th July instant.

The second count charged the prisoner with a common assault. The prisoner pleaded not guilty.

His Honor requested of the Crown Prosecutor to be informed who had taken the depositions in the case.

The Crown Prosecutor replied Mr. Simpson, the Police Magistrate.

His Honor said Mr. Simpson was not the Police Magistrate, and his absence was shewing a want of respect to which he could not submit. Having been Police Magistrate he should set a better example; by the 7th Geo. IV. c. 64, which had been expressly adopted by colonial enactment, Mr. Simpson was bound to attend, and if he did not he should take such steps as would be anything but agreeable to him.

The Crown Prosecutor believed Mr. Simpson was engaged in private business at the bank.

His Honor.---Private business at the bank, Mr. Croke! is that to be an excuse for a man who styles himself Acting Police Magistrate in his own affidavit! Private business at the bank! If that is the only excuse for his absence, he is not fit to remain on[?] the Commission of the Peace. Private business at the bank!

The case then proceeded; the particulars have already appeared in this journal. The prisoner, in his defence, said he was aggravated, and that the present was a malicious proceeding on the part of the prosecutor, to whom he was indebted 10s. as part of a fine inflicted on him for drunkenness, at the Police-office, and for which he had given the prosecutor his note of hand.

His Honor briefly charged the jury, who, without retiring, found the prisoner guilty, and at the same time drew His Honor's attention to the strange conduct of Vinge, in taking a note from the prisoner, knowing him to be a bad character.

His Honor, in passing sentence, said, he hoped the example he was about to make of the prisoner would have the effect of deterring others from committing a similar offence; the sentence of the Court was, that he be imprisoned in her Majesty's jail, at Melbourne, and be kept to hard labour, for the term of two years. His Honor said, had Mr. Simpson been present, the jury would have been enabled to have obtained much more information respecting the character of the prisoner, who, it appeared, had been several times before Mr. Simpson for various offences. His Honor then called Vinge and said in future it would be better for him to have as little pecuniary transactions with prisoners in his charge as possible.

Mr. Simpson having entered the Court, His Honor said, in addressing him, that, as a magistrate, he was bound by law to attend and give such information to the Court as came within his knowledge; it would have been very important in the last case; he wished to know why he was not in attendance, as he (Judge Willis) considered it a great contempt of Court.

Mr. Simpson: I left a message with the Crown Prosecutor where I could be found, if wanted.

His Honor: You should have been present; it was highly important that I should have known the character of the last prisoner, and also the credibility to be placed on what he stated to the jury; I consider your absence, in a great measure, an obstruction to public justice.

Mr. Simpson said, he bowed to what had fallen from his Honor, and would in future be in attendance in all cases when the depositions had been taken before him.

Published by the Division of Law, Macquarie University