Decisions of the Nineteenth Century Tasmanian Superior Courts
Desborough v. Roper 
false imprisonment - navy, desertion
Supreme Court of Van Diemen's Land
Pedder C.J., 13 December 1833
Source: Tasmanian, 13 December 1833 
Mr. Gellibrand addressed the Jury for the plaintiff. - This was an action brought by Mr. Charles Vivian Desborough. The facts of the case, said the Learned Gentleman, are very short: - Mr. Desborough was a lieutenant on board His Majesty's ship Imogene. Some disagreement had arisen between Captain Blackwood and Lieutenant Desborough, and the consequence was, that Mr. Desborough left the vessel. A warrant had been issued by Mr. Mason for the apprehension of his client, soon after he quitted the vessel, but which remained a dead letter, but from some private cause or other, it was thought proper to have Mr. Desborough apprehended, while residing with Dr. Fowler at Brighton. It was on the 12th of May that constables were sent to the house of Dr. Fowler; they were refused admittance by the servants, and they remained outside the house until the evening, when upon Mr. Swift's application, a warrant was granted by Mr. Roper, for the purpose of searching it. "There is a curious circumstance," said Mr. Gellibrand, "in the wording of this warrant - it directs the constables to search for, and bring before Mr. Roper, the within-mentioned Charles Vivian Desborough, or any part of him. He perceived that the reading of the warrant caused a smile upon the features of the Jury, and he entreated them to bear in mind the serious consequences which might have resulted from the granting of it at all. It is no wonder that a smile is excited at the glaring ignorance which is displayed upon the very face of the instrument. The commission is disgraced by the issuing of this warrant; if such ignorance of the law is barely excusable in men who have their general business to attend to, how, Gentlemen, can it be at all so, in one who is paid for his services as magistrate, and who is supposed to be intimately acquainted with every thing necessary for a man filling so responsible a situation as that of magistrate to know. If, Gentlemen, magistrates will not read their books without your interference, why then it becomes necessary to stimulate them to exertion by the penalties you inflict, as a punishment for their negligence. It is a miracle that loss of life did not ensue in the present instance. The constables were directed to inform the inmates at Dr. Fowler's, that if Lieut. Desborough attempted to escape, he did it at the risk of his life; and the constables were directed to shoot his client, rather than suffer him to escape. The learned gentleman then argued at some length, for the purpose of shewing that being absent without leave, is not desertion. He should have, he said, an opportunity of addressing them again, and until then he should reserve what further observations he had to make.
T. A. Wells, as clerk to Mr. Rowlands, served a notice upon Mr. Roper.
John Swift, District Constable of Hobart Town, sworn. - Went on the 11th May last, with a warrant to Dr. Fowler, at Brighton; arrived about sun down; did not see Mr. Desborough there; saw only a man named Leach, and the servant. Told the servant he had a warrant to apprehend Mr. Desborough. When Dr. Fowler came home, witness told him his business; had four constables besides himself with him; had seen the defendant before he saw Dr. Fowler; obtained a warrant after Dr. Fowler refused us admission; returned with the warrant to Dr. Fowler, and kept watch round the house. Mr. Roper accompanied us; we were some of us armed. In the morning, told Dr. Fowler we had a search warrant; to the best of his belief Mr. Desborough was apprehended by Edwards. Edwards was a Brighton constable; we brought Mr. Desborough to Hobart Town; Edwards had Mr. Mason's warrant as well as Mr. Roper's. When witness went to Mr. Roper's to get the search warrant, he left Mr. Mason's warrant with Constable Bradshaw, but when witness returned with the search warrant he found the other in the possession of Edwards. Mr. Desborough was apprehended on Sunday morning, and brought by four constables to Hobart Town. Mr. Desborough was taken before Mr. Mason on the following day, and discharged from custody.
Cross-examined by the Solicitor General. - Had a warrant to apprehend, from Mr. Mason; had it about me on the 11th; did not apprehend Mr. Desborough myself; knows that Edwards had the warrant to apprehend, signed by Mr. Mason; was out at the time he (Edwards) apprehended him.
Mr. G. M. Stephen was called upon, by Mr Gellibrand, to produce a warrant signed by Mr. Mason, and also, another signed by Mr. Roper, when he stated, that he was not aware that he had any papers which referred to the warrants; if he had, he could not produce them; was not certain that he had authority to do so.
Constable Edwards examined. - Is a constable at Brighton; was so in May last; apprehended Mr. Desborough in May last, under a warrant from Mr. Mason; had Mr. Roper's warrant, as well as Mr. Mason's when he apprehended Mr. Desborough with him.
James Green examined. - Was servant to Dr. Fowler in May last; recollects constables coming to his master's; Constable Edwards told me he wanted to see Mr. Desborough; constables remained around the house all night; in the morning, they threatened if I did not open door, they would break it open; I let them in, and soon after they made a prisoner of Lieut. Desborough in the house; Constable Edwards took him.
Thomas Mason Esq. examined. - Is Assistant Police Magistrate, in Hobart Town; knew Mr. Roper's hand-writing; this is his writing (the information of Mr. Roper, taken before Mr. Mason, shewn to him.)
Cross-examined by the Solicitor General. - This is the information upon which I issued my warrant; it refers to the absence of Mr. Desborough from his vessel.
This closed the case for the prosecution. The Solicitor General, contended there was nothing to go to the Jury.
His Honor said, he must nonsuit the plaintiff, for it was sworn that it was not Mr. Roper's warrant which was served, but Mr. Mason's.
Montagu J., 17 December 1833
Source: Tasmanian, 20 December 1833 
In this action the defendant was charged with issuing an illegal warrant, upon which the plaintiff was apprehended.
Mr. Gellibrand addressed the Court for Mr. Desborough, remarking, "That he wished the case to go to the Assessors, on its own merits." A long conversation ensued between the Solicitor General, His Honor, and Mr. Gellibrand, respecting the liability of Mr. Desborough to be arrested as a deserter, and of the authority of the civil power to interfere at all.
Mr. Gellibrand admitted Mr. Desborough might be liable to military arrest for absenting himself from his duty, but contended, that as a deserter, he was not liable, and that the civil authorities had no legal power to interfere at all. The Learned Gentleman went over the whole of the Act of Parliament relative to the punishment of marines for absenting themselves from their duty, and for desertion, and contended that therein he could not find any authority for Lieutenant Desborough's arrest, as the Act of Parliament throughout was applicable only to enlisted marines. "If," said Mr. Gellibrand, "you give the Act any other construction, it will be perfectly competent for a common soldier, who may be chance see his officer as far from his barracks as New Town, without permission, to apprehend him as a deserter. Besides, part of the Act recites, that upon conviction, the said deserter shall be branded on the left side. Now, certainly, it never could have been the intention of the Legislature to apply this severe discipline to commissioned officers, who may happen to be absent from duty for a short time without leave." The Learned Gentleman continued his argument for a considerable time, when His Honor, upon the Solicitor General moving the Court for a nonsuit, addressed the Assessors at considerable length. His Honor said, that until the present time, he had not seen the warrant at all, and was of opinion that the arrest was illegal; but since he had seen the warrant, he was of a decidedly different opinion; for, upon the face of the warrant it was stated that Lieutenant Desborough had absented himself from his vessel while under arrest, and that clearly constituted desertion. Respecting the arguments Mr. Gellibrand had used with regard to the construction of the Act of Parliament, he could by no means agree with them, for in various parts of the Act the wording clearly pointed out its applicability to commissioned officers, as well as privates; and as respected the punishment of branding, His Honor could not see why the Legislature should not intend officers as well as privates to be so punished; indeed, in his estimation, it would be the greatest injustice to brand a poor private for desertion, while an officer for the same offence (and in the case of desertion by an officer a far greater moral crime is unquestionably committed) escapes.
 See also Colonist, 17 December 1833, noting that the trial was before a jury.
 See also Colonist, 24 December 1833.