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Decisions of the Nineteenth Century Tasmanian Superior Courts

Martin v. Smith [1833]

magistrates, action against - convict, expiry of sentence - convict escape - New Norfolk - jury trial - new trial - civil procedure

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 12 April 1833

Source: Tasmanian, 19 April 1833 [1]

Before their Honors the Chief Justice and Mr. Justice Montagu, in Banco.

Martin v. Malcolm Smith, Esq. J.P.

This is a case of considerable importance, as respects the Magistracy of the Colony, and came on for hearing to-day, in the shape of an application for a Jury, instead of being tried in the usual manner before Assessors.

The Attorney-General, in moving for a rule, said he was not aware of any objection that could exist to the granting it, and he must acknowledge that at Sydney, a circumstance of the description in which he was engaged as an advocate, had only to be mentioned in court and a jury would be granted. He confessed he was not acquainted with the practice here, but still thought that whatever it might be, their Honors would see the necessity of granting a jury in this instance.

Mr. Gellibrand on the part of the defendant was ready to shew cause against obtaining the rule, instanter.

Mr. Justice Montagu was of opinion that some outline connected with the circumstance was necessary to be given, independent of the affidavit.

The Attorney-General then addressed the court in support of his motion. He observed that were it a matter of accounts, such as that in the case of Solomon and Davis, then indeed it might be a question to go before assessors, or were it a case wherein was to be proved the warranty of a horse, or a breach of contract of any description; but in this case it was entirely different. Here was a free man taken into custody at the other side of the island, brought before a magistrate at Norfolk Plains, (again whom this action was laid) who declined, as would be proved by the affidavit of Martin, to take any cognizance of his certificate of freedom; tells him "he can spin a long yarn," and then sends him a prisoner to Hobart Town. This was not all. From a paper called theTasmanian, and which he then held in his hand, he would read an article, which he would submit to their Honors, was of a most extraordinary nature, and written for the ostensible purpose of prejudicing the interests of his client. The Attorney-General then read the article to which he alluded, as follows:-

"These two cases are worthy of notice, and shew how cautious persons ought to be, as to whom they receive into their houses. Bradley with his fellow servant, Wharton, absconded from Mr. Jennings at Launceston, and both travelled overland to Hobart Town, without the least enquiry as to who or what they were, and were detected in Hobart Town planning their escape from the Colony. Magistrates are placed in a very awkward situation, by stopping suspicious persons in their districts, for there are now two actions pending against Mr. Smith of Norfolk Plains, and Lieut. Skardin, for detaining two persons that were supposed to be runaways, and are both likely to be visited with heavy damages. It is therefore to be hoped, that this instance, and many others that might be adduced of the same sort, will tend to lessen the large damages that the professional gentlemen anticipate recovering of these two magistrates, who merely acted from caution, and not from a desire to oppress."

The Attorney-General in concluding the reading of the article, attacked it and the motives under which it appeared, in no very measured terms. He said the affidavit of the plaintiff's attorney went to prove that the article was written by a person employed in the capacity of Clerk in the Police Office. The motives under which it was written, could not be misunderstood; and unless the circulation of the Tasmanian were confined to Hobart Town, which it was well known was not the case, being a paper very extensively read, he submitted that the case which he advocated was not one, to be brought before two magistrates as Assessors.

Mr. Gellibrand rose to shew cause against the rule, and with considerable force rebutted the argument of the Attorney General, by contending that the Magistrates of the Colony were competent to decide more important cases, than the warranty of a horse. He strongly contended that this was not a case to go to a Jury. The Court had heard the Attorney-General, and he appealed to the Court to say what might be the feelings of a Jury after his address; he contended that if any thing was calculated to create a prejudice in this case, it would be, a Jury hearing the exciting address of the Attorney General. Assessors could best decide in this case, because they could come to a more deliberate conclusion, and it was not reasonable that the plaintiff should have a Jury, many of whom may be his personal friends, whilst the Magistrates were not likely to possess any such advantage.

The Attorney-General, in reply, made some pointed observations on the argument of "his friend Mr. Gellibrand." He sincerely regretted to hear him make use of language, which would lead a stranger to suppose, that the Magistrates of this Colony, found no sympathy with a Jury. With respect to the Allusion about "the warranty of a horse," he repeated his former assertion, that in any breach of contract, in a case of abduction and many others, as well as the "warranty of a horse," Assessors could certainly decide, without its being supposed that their decision was influenced by some unworthy motive. This was decidedly a different case. With all this respect for the Magistracy, and in that respect he would submit to no person, he was decidedly of opinion, that if ever there was a case, which called more than another, for the interposition of a Jury, this was the one; for after all, Magistrates were mortals, and not unlikely might be influenced in their decision in a case of this kind, by motives from which a Jury would be exempt. He again adverted to the article in the Tasmanian, and having repeated his observations with respect to the facility with which Juries were granted at Sydney, he concluded by observing, that as a matter of taste, as well as necessity, their Honors would see the propriety of granting a Jury in this particular instance.

After a short consultation between the Judges, the Chief Justice enquired of the Attorney-General, on what side of the island he wished the trial to take place; and being answer "on either," he said that before a rule could be granted, it was necessary to know. The Attorney-General, then stated "on this side and in this term."

Rule granted.

Banco, 7, 15 June 1833

Source: Hobart Town Courier, 14 June 1833

The civil term of the Supreme Court commenced on Monday the 3rd instant. On Friday Mr. Gellibrand moved in Martin v. Smith (the Magistrates' case) for a new trial on two points, viz.:-- that the verdict was contrary to the evidence; and secondly, misdirection by His Honor the Chief Justice.

Mr. Rowlands opposed the motion, on the ground of its not having been made within the first four days of the term. The Court decided that Mr. Rowlands's objection was fatal.

On Tuesday the court met, and Mr. Gellibrand shewed cause why the motion in the before-mentioned case of Martin v. Smith for a new trial should not be heard. Judgment deferred until this day.


[1] See also Colonist, 23 April 1833 (editorial and law report); Colonial Times, 16 April 1833.

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