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Decisions of the Nineteenth Century Tasmanian Superior Courts

Hay v. Wentworth [1833]

false imprisonment - magistrates, action against - criminal procedure - damages, false imprisonment - Bothwell

Supreme Court of Van Diemen's Land

Pedder C.J., 12 December 1833

Source: Tasmanian, 13 December 1833 [1]

Mr. Gellibrand opened the proceedings, by stating that the present action, was brought to recover damages for illegal imprisonment, &c., the first counts charged the defendants, Captain Darcy Wentworth and Alexander Read, J. P's with issuing a warrant upon which, plaintiff had been unlawfully committed in the jail at Bothwell, and there detained for 10 days. The second, charged them with issuing a second warrant for the committal of the plaintiff to Hobart Town jail, where he remained for the space of 40 days; the remainder of the accounts were much to the same purport, but differently cited. Mr. Gellibrand, said the facts of the case were decidedly short and simple. The plaintiff was a Shoemaker, residing at Bothwell. Captain Darcy Wentworth, was acting Police Magistrate for that district, on the 11th of February last, when the plaintiff was apprehended, under a warrant signed by Captain Wentworth and Alexander Read, and put into jail at Bothwell; on the 21st, he was removed by another warrant to Hobart Town jail, and remained there for the space of 40 days, and was ultimately discharged by proclamation, no just cause appearing why he should be detained. Mr. Gellibrand, considered the main point for His Honor and the Gentlemen of the Jury to consider, was, whether there was a just and sufficient cause for the plaintiff's detention in jail, for so long a time. He begged to call the attention of His Honor and Gentlemen of the Jury, to the following circumstances:- It appears that a man of the name of Clark, who had been a constable, was confined in the jail at Bothwell; plaintiff having obtained leave to speak to him, went to the jaol[sic], and was desired to go round to the back, where he found Clark, and had some conversation with him, respecting a case which had been investigated at the Police-office. Immediately after Hay left the jaol, Clark sent for Mr. Roadnight, and he, from the information he received from Clark, applied to the Magistrates, and a summons was immediately issued, for the apprehension of Hay, which summons charged him with inciting Nicholas Clark, to take a false oath. He, (Mr. Gellibrand) thought he should be able to shew, that the plaintiff went to the jaol for a very laudable purpose, viz:- To induce Clark to speak the truth, or at least, what he knew about the case of his being charged with harboring prisoners. Mr. Gellibrand contended, the warrant was illegal, for under that warrant, the plaintiff might have laid in jaol until this hour, unless he was able to procure bail. It appears that on the 21st of February, he is by a most arbitrary act of the Magistrates, taken out of Bothwell jaol, and sent to Hobart Town - he would now read to the Court, the evidence of Clark, upon whose oath Hay had been committed, which stated, that before he was up on the Morning of the 10th, or 11th of February, the Jailor informed him that Hay wanted to speak to him, when he said, now as you are going away you may as well give me a little information - you know all about it; I think Hay's object in coming to me was to back him up in some evidence, he wished to substantiate. I had every reason to believe he wished me to swear falsely, from what he first said: "It would do him good and me no harm." The Counsel then resumed. - "I would only ask of you, after ascertaining what the facts of the case really are, to place yourselves in the same situation with this injured man. It may be considered hard to be continually harassing the magistrates by bringing actions against them, but the Legislature has ordered, and most wisely ordered, that should any magistrate commit an error (as it was his (Mr. Gellibrand's) opinion they had done in this case,) the magistrate is authorised to tender to the parties aggrieved by each error, what might be considered reasonable amends for the damages he may have sustained - but in this case no amends whatever had been tendered, but they had compelled his client either to put up with the ruin he has sustained, or come into Court and seek redress at the hands of a Jury. If, therefore, Gentlemen, you conceive the warrant to be illegal, it remains for you to say what will be an adequate compensation for Mr. Hay, whose property, when he was committed to goal, was all disposed of by Mr. Cockerill; and after fifty or sixty days confinement, he is turned out a beggar." Mr. Gellibrand added, "that he thought, under these circumstances, something like exemplary damages ought to be awarded; for he considered that in proportion to the enormous magnitude of the power vested in the hands of a magistrate, in such proportion ought to be the scrutiny over their actions." He then proceeded to call witnesses.

Claud Midwood being examined, proved the serving of the notices upon the defendant.

Henry Milkan Cockerill examined. - Was clerk to the Police Magistrate at Bothwell, in February last. He stated that the body of the warrants were in his hand-writing; he filled them up by order of Captain Wentworth, they were signed by him and Alexander Read. Knew the plaintiff was in goal from the 11th of February to the 21st; knows McCray; recollect his coming to be bail for plaintiff; he sent him to Captain Wentworth.

The Chief Justice here stated, that non-reception of bail was no part of the indictment.

Cross-examined by Solicitor General. - He had communication with Hay about his property; left it in his charge to dispose of; it fetched £6.

Morriss Buxton being examined, proved plaintiff's being in gaol from the 11th of February to the 21st.

John Park, a constable, being examined, stated that in February last he took the plaintiff from Bothwell gaol as far as the Green Ponds.

John Bisdee examined. - Was keeper of the Hobart Town gaol in February last; plaintiff was in his custody from the 25th of that month until the 28th of March following, under a warrant, signed by Captain Wentworth and Mr. Read; he was there upon no other charge.

Cross-examined by Solicitor-general. - Did not know whether any body was with him when he came to the gaol; thinks there was.

E. McDonall, esq., and Mr. G. M. Stephen, were called upon for the depositions of Clark against Hay, which were taken at Bothwell, but they were not to be found. Mr. McDobell said he had seen them, but they were never forwarded to him.

The Chief Justice here observed that this delay ought not to have taken place; the papers should have been searched for before.

Cockerill was recalled, and stated the depositions were forwarded to him in the usual way, but does know to whom they were addressed.

This ended the case for the prosecution.

The Solicitor General rose, and submitted to His Honor the necessity of a non-suit in this case. Here a very long discussion took place between the Judge and the Solicitor General, upon the legality of the warrants; the Solicitor General stated that the imprisonment at Bothwell was the only one that had been proved; he contended his imprisonment in Hobart Town, to be voluntary. The business of the Court was here detained for the space of an hour by arguing the different points of law.

Mr. Gellibrand contended, that if the Magistrates committed the plaintiff to jail, at Bothwell, they had no further power over him, not even to take him out of jail. They might with equal propriety commit a man to Hobart Town jail and then send him to Launceston.

The Solicitor General rose and said he should not call any witnesses, feeling satisfied that by leaving his cause in the hands of so respectable a Jury as he now had the honor of addressing, they would give the case every consideration it required. Even, continued he, supposing the view taken by the other parties as to the propriety of the warrants issued to prevail, the question which they had to consider was, whether they believed, acting as those Magistrates were, and having a duty to perform to the public at large, could they, in the discharge of that duty have acted otherwise; upon receiving such depositions as those of Clark, than commit the plaintiff to goal; then, if they were satisfied on that point, their next enquiry was what injury has the plaintiff sustained, as they had heard to-day between the statement and the proof a vast difference subsisted. They had been told of plaintiff's affluence when committed to jail, and Cockerill had proved that all his affects only fetched £6. He begged the gentlemen of the Jury would give these circumstances their most serious consideration, and he did not doubt but if they were compelled to give damages at all, they would give the smallest current coin which passes in this Colony; besides, is it to be said that this statement of Clark; given before the Magistrates is false, merely because he turns round, and in the presence of the javelin man, says he knows nothing at all about it. Do you consider, gentlemen, that Mr. Hay expected one farthing damages for his imprisonment? no, rather say it is at the solicitation of his industrious Solicitor, who is so often heard to boast of the acquisition he is continually making to his wealth by these actions against the Magistrates; and here is Mr. Hay, soliciting by his modest Solicitor, several hundred pounds damages - but gentlemen, such actions as these are not to be encouraged by you, if lawyers are in this manner allowed to speculate, and so largely as the Attorney in this case does upon every little error that may take place; depend upon it, gentlemen, you will ere long repent it yourselves, I therefore entreat you to look at the case - as men of the world - as men of common sense - and then say what damages should be awarded to such a man as Mr. Hay, who lays 10 days in jail, in the very heart of his fellow townsmen and friends, and yet no one of them will come and bail him out. He (the Solicitor General) considered, that had the Magistrates acted in any other way, than they did, they would have been remiss in their duty, for the acting Magistrate of the district, is not satisfied with his own opinion, but he calls another Magistrate, and they, after consulting together, jointly issue this warrant - I ask what other motive could they have had in view than the discharge of their duty, and when gentlemen you look through the evidence of Clark, taken in the whole, and consider the Magistrates believed it true, I think you will then agree with me, that they were bound to act as they did - but if on the other hand, you should see that Mr. Hay has been oppressed, and he comes to seek justice at your hands for that oppression, then I say, give him ample recompense for the inconvenience he has sustained. But let me again, warn you Gentlemen not to countenance such actions - for if you go on to encourage a gentlemen of the active disposition and intelligent industry of Mr. Rowlands, you will indeed repent it; for if Magistrates in the conscientious discharge of their duty, are continually to be caught in the nets, spread by these gentlemen to catch them, in some of the little technicalities of the law, consider gentlemen what you will have to go through, when perhaps after a few years, you retire into the country, you may be called upon to perform these arduous duties yourselves.

His Honor the Chief Justice, summed up the evidence at some length, and stated that it would be expedient if they gave a verdict for the Plaintiff, to separate the damages on each count in the indictment.

The Jury retired, and after nearly an hour, they found a Verdict for the plaintiff - £10 on the lst and 5th counts, and £50 on the 2nd, 4th and 6th.

Pedder C.J. and Montagu J., 2 May 1834

Source: Tasmanian, 9 May 1834

The Chief Justice having gone through the Bar, gave the judgement of the Court in the application for a new trial, in the case of Hay v Wentworth. His Honor went through the whole of the case at very considerable length, and expressed his opinion that it should again go to a Jury.

Mr. Justice Montagu was of the opinion that the defendant's case had not had that fair and calm consideration which every Magistrate, circumstanced as was the defendant, entitled to. The basest perjuries have been here committed with the last few years, arising out of subordination, which his Honor stated his belief was daily practiced. Th law is quite clear that it is a misdemeanour in any person to suborn another commit a misdeneanour. "It is attempted to be charged against Captain Wentworth, that he acted maliciously and I really think, that in regard to error of judgement, that he had every reason to believe that the plaintiff had incited a prisoner of the Crown to take a false oath." His Honor then declared himself of the opinion with the Chief Justice, and the Rule was granted for a new trial.

Mr. [??] observed that the [?] already stood for trial by Jury. - Ordered.

10 July 1834

Source: Colonist, 15 July 1834

On Thursday, in the case of Hay v. Wentworth and another which arose out of the false imprisonment of the plaintiff by Captain Wentworth, damages to the amount of £12 were awarded. - This case had been tried about six months back by a Jury, as in the present instance, and the amount of the damages on that occasion was £50. The plaintiff had suffered sixty days imprisonment, six weeks of which were in the Hobart Town Gaol.


[1] See also Colonist, 17 December 1833, noting that the trial was held before a jury.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania