Supreme Court of New South Wales

Dowling J., 23 March 1831

 (Before Mr. Justice Dowling, and a Special Jury.)

Cokely, v. Simpson, Esq. J. P.

This was an action for assault and false imprisonment, in which the damages were laid at £200.  The defendant pleaded the general issue.

Mr. Keith stated the case to the jury, as it afterwards appeared in evidence, and called the following witnesses:-

Patrick Cains - I am a prisoner of the Crown; I saw the defendant at the latter end of June, at the Lower Portland Head, crossing the river in a boat; I saw two men on the other side of the water, the Coal River side; an overseer in the boat asked them if they were free men or prisoners; both replied they were free men; Mr. Simpson was in the boat at the time; the overseer asked them for their certificates; Cokely answered he had no certificate, but had a working pass from Captain Aubin,; I believe Mr. Simpson asked him where it was; he said ``I lost it, or got robbed of it;"  Mr. Simpson said, ``I think you are a bushranger," or something of that sort; the man said he had lost his pass, and he was going over to the Justice of the district for protection; Mr. Simpson said, as he had no pass from the Coal River he should detain him; plaintiff said he wanted a pass to take him to Sydney to get his certificate; I don't think he knew at this time that the person he was speaking to was Mr. Simpson; he was taken into custody and sent to gaol.

Cross-examined - There had been considerable alarm in the neighbourhood about that time, in consequence of some robberies committed on the Coal-River road; Cokely seemed to be clean; he had on a government shirt, and I think a pair of Parramatta trowsers; he appeared like a labouring man; the clothes seemed to be whole, to me, and he said he was a free man, and that he had had a pass from Captain Aubin, but had lost it; this he said when he was asked for it, not before; he said he had a working pass when asked for this document of security; they were both strangers to me; I did not know at the time the other man was not free; they were standing at the wharf apparently waiting for the boat; there is a ferry at the place; I do not know whether Wiseman takes payment for it; he said in one of his replies, that the day was over as to his being in subjection to a Magistrate; the word bouncing was used; he said he did not know to whom he was speaking, neither did he care for he was a free man; after he had said this, the overseer told him Mr. Simpson was a Magistrate; on which he replied he did not care, for he was a free man; he said this to all, not to Mr. S. in particular; Mr. Simpson ordered the overseer to take him into custody; the overseer acted as constable; the men were dressed as travelling men; I could not tell myself what to think of them; I have seen bushrangers like them, and also I have seen free men like them.

By a Juror - Magistrates now a-days stop all person whom they deem suspicious characters.

By the Court - I was in the iron-gang at that time.

Patrick Cunningham - I am a free man; am a district constable of Mangove, about sixteen miles from Wiseman's station, Lower Portland Head, in March; I recollect Cokely being brought as a prisoner, and delivered into my charge, about the latter end of June; I do not recollect the exact time; he was taken before Mr. Simpson, at Court; I went with him; him person made any charge against him to my knowledge; another man was with him; I do not recollect any witnesses being sworn against him.  I have attended before the Bench of Magistrates and seen the proceedings; they were not the same on this occasion; defendant admitted that he had been a runaway from the service of Dr. Moran, and had become free while in the bush.  I believe Mr. Simpson ordered him fifty lashes; I believe the man requested to be sent to Sydney to prove that he was free.  I was present in the Court; I believe he was sentenced fifty lashes for being at large.  There were no witnesses examined.

By a Juror - He stated that he became free in the bush.

Examination continued - I do not recollect his stating that had a pass, but that he was free; he told the magistrate that he was free, but I do not recollect the date; he did ask Mr. Simpson to send him to Sydney; he was punished; I am sure he received the flogging he was ordered; I do not recollect the flogger was ordered to exert himself; he brought away blood on his back.  He was again locked up, and next morning was sent under escort of a military man to Windsor.  Lower Portland Head is 28 miles from Windsor.  Mr. Simpson is a magistrate.  I think plaintiff was sent off in irons; I know that William Tinns has been subpoena'd to day.  He said he would not come down unless his expenses were paid.

By a Juror - Plaintiff was rather saucy at Court.

Cross-examined - I do not know the name of the second man; they looked like bushrangers; they were examined separately' Cokely's statement did not correspond with the other man's; I did hear him say he had a pass.  The man was brought before the bench to give an account of himself.

By the Court - The clerk took down the examination in writing.  I believe Mr. Simpson referred to some act on the trial.

By a Juror - There was no other magistrate but Mr. Simpson.

Thomas Ryan - I am a clerk in Mr. Hely's office; I have seen the plaintiff Cokely; I remember his being brought to the office in June last ( I believe on the 29th) to be examined touching his freedom.  The indents were referred to, and I found he was then free (a paper handed to witness); this is his certificate of freedom, issued from our office to him.  By the certificate he was free either in March of April.  When he came to the office he was handcuffed, and had been sent by Mr. Simpson; he was discharged on the 29th of June.

Cross-examined - An Act of Council, prescribing that a prisoner shall serve all the time he has passed in the bush, I am acquainted with.  A return was made from the Newcastle bench of his being free; there was a warrant sent with him, on which I wrote free, and returned it to the constable.  I can not recollect the substance of the warrant (paper handed).  The contents contained in this are similar to the one sent with him; it is customary to handcuff men sent to be identified.

By Mr. Keith - It is customary to send free people down handcuffed; But I am not aware of any order to flog them before they are tried.  The return made from Hunter's River of his being free, was signed by a magistrate.  It might have been signed by Captain Aubin.

By a Juror - I do not know that he was reported as a runaway.  I do not think he was.

Cunningham recalled - I recollect Mr. Simpson looking over the Act, but do not know whether he read it through.

By the Court - Mr. Simpson is Surveyor of Roads at Lower Portland Head, as well as a Magistrate.  There were two Iron Gangs under his direction, No. 3 and 4, and one Road Party, No. 24; I cannot say the number of men in the gangs.

This was the case on the part of the plaintiff.

Mr. Therry rose. - By a brief and unexaggerated statement, he felt assured that he would be able to bring not only the minds of the Jury, but even that of the learned gentleman opposed to him, to the conclusion that his client had acted in a manner to the plaintiff, which was not only irreprehensible, but that it was quite borne out by the rules laid down in the Act of Council for his guidance in his magisterial capacity.  On one point he perfectly agreed with counsel for plaintiff, namely, on the difficult situation of the magistrates in the country at this time; and he conceived, that on account of such difficulties, and the peculiarity of the characters they had to deal with, their actions ought to be looked at with the greatest candour.  Evidence had been given, that his client was removed thirty miles from any other magistrate, whose opinion he might take, or whose assistance he might require in the discharge of his duty.  He was placed over a set of men, who were so unruly as to baffle even the most energetic and persevering; and he, the learned counsel, could safely say, that of all the magistrates in the colony, his client's situation was perhaps one of the greatest difficulty.  What was the situation, of a magistrate over iron-gangs stationed on a line of roads extending forty or fifty miles in different directions?  It was his duty to govern and controll [sic] some of the most daring and unruly characters in the whole range of the convict population of this colony.  There was not a magistrate residing within thirty miles of him, so that he was deprived of the advantage of legal advice and magisterial co-operation, which were the more requisite on account of the critical and difficult duties entrusted to his charge.  To compare such a magistrate, in such a situation, surrounded by such difficulties, with the office of a magistrate residing either in Berkshire or Oxfordshire, where legal advice and the assistance of a brother magistrate are both within half an hour's walk of him, is to compare two things utterly dissimilar, and in the comparison of which the difficulty is to discover features of resemblance.  What! compare a magistrate in England, surrounded by an industrious yeomanry, by men of property, of intelligence, and of character, with a Magistrate of this Territory placed in the position of Mr. Simpson!  The consideration presents a contrast rather than a comparison - there is no parallel - and although the learned gentleman appeared to be sensible of the difficult duties which Mgaistrates [sic] had to discharge, yet he (Mr. Therry) could not compliment him on his practice being conformable to his precept, for, certainly, the Magistrates of this Territory were very little indebted to him for any forbearance, or indulgence, or liberal and generous construction of their conduct.  In reference to the conduct of Mr. Simpson, he was enabled to relinquish the advantage of all apologies, as he only acted in the strict and conscientious performance of his duty.  To have pursued any other course than that which he did pursue would have been a devious one.  The learned gentleman proceeded to call the attention of the Jury to the Act of Council No. 1[2] Geo. IV. Sec. 7, which authorised Mr. Simpson to deal with the plaintiff in the manner which he had done, and to the circumstance of the plaintiff's conduct.  It happened about the period mentioned, that Mr. Simpson was crossing the river, and saw two men of suspicious appearance standing on the opposite bank.  He made inquiries who they were, and not being satisfied that they were free men, they having no document to shew for it, defendant ordered them into custody - was this wrong?  Had his client after this let them go about their business, turned them loose on the public, the learned gentleman did not see but that upon the same principle, runaways from iron gangs would be entitled to their discharge and there would be no keeping a prisoner of the Crown out of the bush.  How had the plaintiff appeared? No certificate, no pass, no evidence of his freedom, only his own assurance; and here he begged to mention a circumstance worthy of attention, which was, that plaintiff was in company with another man who was equally suspicious, and who afterwards turned out to be a runaway.  He mentioned these facts to show, that there was reason for Mr. Simpson's apprehending the plaintiff.  He was brought up next day to the Police Office, and there his conduct was insolent and overbearing, and had been the day before, and then too he confessed that he was a runaway from Dr. Moran's employ, but had become free in the bush.  This gentlemen, was the evidence from his own mouth; and now he appeared to claim damages for being punished for his own improper conduct!  Mr. Simpson, on his acknowledgment, referred to the Act of Council to see how he was authorised to deal with him.  The words of the Act were these - ``That as often as any person being under sentence of transportation or detention, either passed beyond the seas or in this Colony, or any of its dependencies, shall abscond or absent himself from the service of his master or employer, every such person shall be liable to be tried in a summary manner by or before any Court or Tribunal authorised by law to take cognizance of offences committed by transported offenders; although at the time of such trial such sentence may have expired; and being lawfully convicted of such absconding, shall be liable to be detained or assigned and kept to labour for such and the like time as such person absconded and was absent from the service of his master and employer, and shall be subject to all such and the like punishments, and to be dealt with in all respects as persons absconding during the subsisting sentence are liable to by this law or ordinance." - Now the plaintiff admitted that he absconded from the employ of Dr. Moran.  The time of his absconding was in the month of January, and he himself does not allege that he became free till the month of March, so that he was at least four months in the bush, which four months, by this Act of Council, he would be obliged to serve as a prisoner of the Crown, in consequence of having absconded.  Having established, then, the right of Mr. Simpson to deal with him as a prisoner of the Crown, it next became requisite to refer to the third section of the same Act of Council, which defines the punishment for the offence of which, on his own confession, he was guilty.

The Court. - The question is, whether this law is as to this case an ex post facto law.  The case occurred, I learn, previously tot he passing of the Act.

Mr. Therry - The conviction was certainly after the Act came into force, but if His Honor had any doubt that the offence which warranted that conviction should have been subsequent to the date of its enactment, he hoped the point would be reserved for future consideration.  Besides Mr. Simpson had authority to inflict the punishment which he did inflict, by the Act of Council giving to a single Magistrate, twenty miles distant from the residence of any other Magistrate, an authority and jurisdiction equal to that possessed by Magistrates at Quarter Sessions.  In conclusion, Mr. Therry urged upon the attention of the Jury that Mr. Simpson acted from a conscientious sense of his duty.  There was no evidence of malice - no manifestrtion [sic] of a harsh or vindictive feeling on his part towards the plaintiff.  The plaintiff was, by his own admission, a runaway and a bushranger, and if actions like the present were encouraged by damages, it was not unreasonable to expect that bushrangers, and runaways, and vagabonds of every description, would become plaintiffs in this Court in actions against Magistrates.  It was important for the Jury to bear in mind that at the time this plaintiff was taken up, several robberies had been committed in this quarter.  If Mr. Simpson had acted erroneously, he would claim for him the indulgence due to his peculiar situation.  He would say to the jury -

``Be to his faults a little blind,

Be to his virtues very kind."

But his conduct stood in no need of apology or extenuation - he had pursued what he conscientiously believed to be the path of his duty, and therefore confidently anticipated that verdict in his favour to which the fair and upright discharge of his duty entitled him.

Witnesses were then called for the defence, to prove the conduct of the plaintiff himself, and the circumstances of suspicion under which the defendant acted.

Mr. Keith replied.

The learned Judge summed up the evidence, dwelling particularly sn [sic] the relative situation of the parties, and on the arduous and delicate nature of the duties which devolved on magistrates in this Colony.

The jury found a verdict for the plaintiff, damages £10.

Counsel for the plaintiff, Mr. Keith ; for the defendant, Mr. Therry, and the Messrs. Chambers.

Dowling J., 23 March 1831

Source: Dowling, Proceedings of the Supreme Court of New South Wales, vol. 52, Archives Office of New South Wales, 2/3235

[p. 73]  [See Ante p.1.]

Dowling J's. summing up in this case.

This is an action of trespass against a magistrate, for assaulting & falsely imprisoning the plf. as in the declon [sic] alleged.  The deft has pleaded the general issue, only, but being a justice of the peace he is by law entitled to give the special [p. 74] matter in evidence under that plea. 

With respect to the objection that has been made to the form of the notice in action, in not describing Mr Keith as "of" Pitt Street Sydney, I have given no opinion, but have reserved it for the consideration of the Court.  This being a technical objection, & the plf being a poor man, and would probably be prevented by lapse of time from bringing a fresh action, I thought it the safer course not to yield to the objection, but save it, in order that the merits of the case shd be gone into; and that from the deft's own honor [sic], your opinion should be taken of his conduct as well as that of the plf. 

[p. 75] In order that you may distinctly apprehend the grounds on which this case is to be determined, it is necessary & should call upon your attention to a few general principles applicable to cases of this nature.

This you will observe is an action of trespass against a magistrate for an act one under colour of law in his official character of Justice of the Peace.  It is for a direct & not a consequential injury, - which is the marked distinction between the action of trespass, & the special action on the case.  In this form of action the malâ fides or bonâ fides of the magistrates conduct can not affect the verdict, although they may have much to do with the amount of damages.  If this were an action on the case for a malicious conviction (right in point of form), it would [p. 76] be subject to a very different consideration upon legal principles from the present case; for then you would have to inquire into the motives of the party, and the judge would have to determine the reasonableness and probability of the cause for convicting; and these considerations would go to the whole foundation of the action.  Not so in the present case, which is an action of trespass; for in order to entitle the magistrate to a verdict, he must shew that his conduct throughout has been strictly legal in form as well as substance, however honest his motives, & bonâ fide his intentions.  A mere honest error in judgement as to the extent of his jurisdiction, will not exempt him from legal responsibility, though it may, and indeed ought [p. 77] in reason and justice, to be taken into consideration by a jury in estimating the amount of damages resulting from the excess of jurisdiction.

It is a settled rule of law applicable to summary jurisdiction "that where justices of the peace have an authority given to them by an act of parliament /or as in this country by a local ordinance/ and they appear to have acted within the jurisdiction so given, & to have done all that they are so required by the act to do in order to originate their jurisdiction, a conviction drawn up in due form, & remaining in force, is a protection in any action brought against them for the act done.  (Per Abbott C.J. in Baxter v Carew 5 D & R. 558. 3 B & L. 649.) 

And the settled principle of law is, that where a [p. 78] justice of the peace has jurisdiction, his conviction is conclusive evidence of the facts stated in it, if no defect appear on the face of it.  (Brittain & Kinnaird. 4 J.B. Moore 50.)

There are principles recognized for the due protection of magistrates. 

The true question in the present case is whether the Deft has shewn that the assault & imprisonment complained of, are legal & justiciable; for if he has, then he will be entitled to a verdict.

Every fair & reasonable intendment should be made in favour of a magistrate acting honestly & uprightly in what he conceives to be the discharge of his duty, and it would be unreasonable to visit every little slip or error of an honest mind with the consequences of an action for damages. -

[p. 79] It has been fairly conceded by the learned counsel for the plf in this case, that the magistracy of this territory have a very onerous & troublesome duty to discharge and that they ought not on light grounds to have their conduct to strictly canvassed in a Court of Justice; but at the same time, it has been observed that the magistrates of this territory are armed with powers and with a summary jurisdiction greater than are known to the law of England, & that in proportion as they are so armed, in that proportion ought these to be a more vigilant circumspection of their conduct.  To the propriety of these observations, I think every [p. 80] reasonable mind must assent.  There is no doubt that the situation of the magistrates in the remote districts of the Colony is peculiarly [?]some.  They leave no lawyers as their elbow, & they have not the ready means of access to head quarters where the law officers of the Crown might be consulted.  Often called upon to act alone, upon their own individual judgement, under the disadvantage of privacy & seclusion, it is not extraordinary that some times they may fall into error.  They have not even the advantage of that moral control and check, which the consciousness of the public eye being upon them, naturally & properly has upon the most honest & upright minds, in the discharge of the sacred offices of justice.  What magistrate [p. 81] called upon to administer the law judicially - to sit upon the lives or the fortunes of his fellow subjects, does not acknowledge the potent influence of publicity on his conduct - in awakening him to a cautious exercise of the powers delegated to him for public weal - & prompting him to be very vigilant in the discharge of his sacred trust?  Of even this protection against himself, the magistrate sitting in a remote district, surrounded perhaps by a population of questionable character is deprived, & whose peculiar [p. 82] situation may even honestly betray him into a vigour beyond the law.  But at the same time that these concessions be made for a magistrate so circumstanced, it behoves every man to take special care that even the honest errors of this judgement do not work an injury to his fellow subjects. -  For such injuries it is the interest of society, that there should be a salutary check somewhere.  The powers delegated to public men are for public purposes, & for all abuses of their trust, they are & ought to be deeply accountable.

I will now call your attention to the nature of the injuries complained of by the plf, & to the manner & grounds of the defence set up on the part of the magistrate.

[p. 83] The learned counsel for the deft has contended, first that the magistrate in the punishment inflicted by his orders on the plf, was justified by the local ordinance, 11 G. 4. No. 12. - 12 May 1830.  "An act for the punishment and transportation of offenders in N.S.W."; and secondly, that the subsequent commitment of the Plf to Sydney, was justifiable under the local ordinance 11 G. 4. No. 10. 21st April 1830.  "An act to suppress robbery and housebreaking, & the harbouring of robbers and housebreakers".

Now let us examine each of these heads of defence separately.

It is proved that the only evidence on which the magistrate awarded the punishment of 50 lashes was the plf's own confession that he had been a runaway from Dr. Moran's Service, but had been one free in the bush, some time in the month of March 1830.  The local ordinance in question cane into operation on the 12th May 1830 & the punishment [p. 84] was inflicted on the 23d June 1830.

It appears to me that in this part of the case two questions arise for consideration.

1st. Whether the local ordinance applies to this case, and can have operation in the case of a man who had become free by [?] of time before the passing of the act.

2nd. Whether assuming that it could apply to this case, the Deft has pursued the authority given to him by the ordinance.

There is no doubt that a voluntary confession of a crime in the best possible evidence of guilt, & that the magistrate of he has jurisdiction over the offence, may proceed to convict without farther evidence; but it is no less clear that a voluntary confession must be taken altogether.  How the plf had confessed that he had become free in the bush, but at the [p. 85] same time he insisted that he was a free man at the time the justice assumed to exercise the jurisdiction.  The magistrate does not appear to have doubted the statement, for he acts upon it by punishing the supposed offender.

As to whether the local ordinance applies to this case I entertain very considerable doubt, because it appears to me, that if it were construed to comprehend this case, it would be giving it an expost facto operation, which is contrary to general principles of law, as well as to public policy.  It is not non disputed that this man became free in March or April last & that he so became free [p. 86] whilst in the bush.  Until the passing of the local ordinance of 12th May 1830, I am not aware of any law by which he could have been punished had he been apprehended between the time of his becoming free in March or April, & the 12th May 1830, and as I find no provision for cases arising before the 12th May 1830. -  I incline to think that the magistrate had no jurisdiction to punish this man under the 7th section of that ordinance, but I give no positive opinion upon this point, because I apprehend that assuming the act does apply to the case the magistrate does not appear to have presumed the authority given him, & that his conduct throughout is inconsistent with itself.

Now has he pursued the authority given by the statute?  [p. 87]  By the 7th section it is enacted that persons under sentence of transportation, absconding may be tried in a summary way, although at the time of such trial such sentence may have expired & being convicted, may be detained or assigned, & kept to paid labour for the time the person had absconded, & shall be subject & liable to all such & the like punishments, & to be dealt with in all respects, as persons absconding during any subsisting sentence are liable to by this ordinance.

It is clear that the magistrate has not punished the plf, under the first branch of the section, but has resorted to the 3d section, which applies to persons absconding during a subsisting sentence, by which it is enacted, that a felon absconding from his warden's [p. 88] service, should be liable to be whipped once, twice, or thrice to the extent of 50 lashes at any one time.

Now if the magistrate really believed the plf's confession that he had been a felon transport, had absconded, but became free in the bush, & it was clear that the plf came within the operation of the local ordinance, why then the justice would have been warranted either in sentencing him to service at the time he had been unlawfully at large.  During the subsistence of his term of transportation, or to punish him corporally in the way he appears to have been punished, & he would have recorded the proceedings & judgement accordingly.  - for the offence.  But what say, [p. 89] the warrant by which the man is subsequently sent to Sydney, which is the most formal record of the proceedings. 

The warrant produced, first gives the plf's name & description, secondly, it records the offence, namely absconding from his master's employment.  Then what is the offence for which he is sentenced? -  Not for absconding - but "for being at large in this district without a pass, - to be forward to the principal superintendent of Convict's office to be identified." -  Now here there is a complete departure, & an inconsistency between the offence of which he was convicted, & the offence for which he was punished. 

Either the magistrate believed the plf's confession or he did not.  If he believed it, he sd. have given him his 50 lashes & sent him about his business.  If he did not, then what was his [p. 90] course. -  Why to have detained him until it co.d be ascertained from Sydney, whether he was or was not free, or to have transmitted him to Sydney for the like purpose, under the provisions of the local ordinance 11 G. 4 No. 10: 21st April 1830.  But here he first flogs him, for a reason not in keeping with his alleged offence, & then he is sent to Sydney to be identified.  This it appears to the savours of a double punishment for the same offence.  At all event, it is a proceeding under two local ordinances passed each for different purposes, & it appears to me that the magistrate should have acted upon one only, but not in both.

[p. 91] It has been suggested in argument that the punishment of 50 laches, was not for the bonâ fide purpose of dealing with this man as an absconded felon, (& that the warrant shews it), but in order to visit him under colour of the local ordinance, with castigation for his insolence the day before, - when he was not acting as a magistrate.  Now if there is any thing in the evidence to warrant this conclusion, I am bound to say that it gives a very serious complexion to the conduct of the magistrate, & you ought to visit it accordingly; but you ought to have clear [p. 92] evidence before you, in order to draw such a conclusion.

With respect to the second ground of defence, namely that the subsequent sending to Sydney under the 11 Geo. 4 No. 10. was justifiable under the circumstances, I have already intimated that the magistrate could not proceed upon both ordinances, for the reasons I have pointed out.  If indeed the magistrate had foreborne to flog this man in his own confession, & had merely sent him to Sydney to be identified under the local ordinance alluded to, they you would have had to determine whether there was reasonable consent to suspect & believe that the [p. 93] plf was a transported felon in law fully at large, & if you were justified that such cause existed then the Deft, would have been protected.  At the same time I cannot forbear to obscure the want of caution in the Deft in not taking the depositions of the observer, & the other witnesses who were present at the spot & had observed the demeanour & conduct of the plf.

I then read over the whole of the evidence.

It appears to me from the reasons intimated that the Deft however honest & bonâ fide he has acted, has not pursued that course pointed out to him by law, & that the plf is at all events entitled to a verdict.  If I am wrong in this view of the case, my direction is open [p. 94] to correction.

Taking it, that the plf is at all events entitled to a verdict, there comes a very important question for your consideration, namely the amount of damages.

This must depend upon all the circumstances of the case. -

If the 50 laches were given under colour of law, but really to appease the insulted dignity of a man armed with a little brief authority, I have no hesitation in saying that this is an excess that ought to be corrected with just severity, because human reason & the law of England cannot tolerate, that any man shall abuse that power given wherein [p. 95] for public objects, for the purpose of barbing the [?] of private [?] personal feeling & resentment.  This plf may have used very course, & vulgar language to the Deft the day before.  But his station in life must be recollected.  It does not appear that he at first knew also the Deft was fancying himself free from the bondage of his degrading state, you would not hear very nicely the language of a low & vulgar mind, when the voice of nature was eloquent in his heart.  He is a man - you are men - he has the common frailties of our common nature, and some allowance may be made for [p. 96] intoxication of freedom.  In estimating his claim to damages, you must bear in mind his condition in life - what he had been - & although his character is not in issue here, yet he stands confessed a runaway from his master's employment with other circumstances fresh in your recollection, discounting the damages which you would give to a man of unsullied reputation wantonly made the victim of [p. 97] magisterial authority.  You must also bear in mind situation & the circumstances of the Deft, at the time of his transportation.  A single magistrate placed in authority over a desperate & lawless set of men - a district, subject to the outrages of bushrangers - & he called upon suddenly to deal with a case, fairly open to doubt as do its being within the local ordinances alluded to.  You will, if you think he acted fairly & honestly though erroneously, deal with him as you would expect to be dealt with [p. 98] under like circumstances yourselves; & whilst you have a just jealousy of the liberty of the subject, & a salutary vigilance in deprecation of unlawful authority, yet as good subjects & citizens incline to support that authority which is of essential to the welfare of the community, although the strict observance of legal forms, cannot support even honest error.  With these observations I leave this case in wise hands.

Verdict 10£

Source: Australian, 1 April 1831

Cokely v. Simpson, Esqr. J.P. - Mr. Therry moved to set aside the verdict obtained in this cause, on the Wednesday previously, being for the plaintiff, with 10l. damages, upon two pleas; first, that the notice from the plaintiff's attorney of trial, to the defendant, he being a magistrate, was not so explicit as the statute, in such case made and provided, required it to be; and secondly, that the time of the trespass was wrong laid in the plaintiff's declaration, being the 10th June, whereas no trespass was proved to have occurred till the 20th.  Plaintiff's attorney argued, on the other hand, that he had given his notice endorsed, according to rule and precedent, and that plaintiff was not bound to set forth in his declaration the precise time of trespass.  The Chief Justice ruled that there were no grounds whatever shewn, either in equity or law to disturb the verdict already had, which his Honor considered exceedingly temperate, and even milder than the act complained of would have justified a jury in finding.  His Honor strenuously advised Magistrates to be cautious how they acted under a mistaken view of any local penal ordinance made to suit a particular exigency, when such local laws infringed upon the persons liberty, and security of property of the subject; laying particular emphasis on the Act of Council passed on the 12th May last, avowedly, for the purpose of restraining bushranging, which then had grown to an alarming excess; and advising them in effect, that such an act was to be construed in the most liberal sense possible, as, however anxious and ready the Court was to support Magistrates in the lawful and honest discharge of their functions, yet, it was their duty also, to give every tree subject the fair protection of the laws of England, and full redress, if for any injury proceeding from ignorance or inattention, but much more it from any malice expressed or implied.  As for the technical objections to the verdict, His Honor held them to be worth nothing.

Mr. Justice Stephen concurred in taking similarly liberal and constitutional views of the subject with the Chief Justice, and

Mr. Justice Dowling agreeing with both, the rule prayed for was dismissed, Mr. Therry taking occasion to observe, that as the learned Judge who tried the case had reserved the objections taken at the time of trial, he had thought it a duty to his client to urge them, and not because he fancied they would be held to be sound and binding.

For accounts of the trial, see also Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 47; and Dowling, Proceedings of the Supreme Court of New South Wales, vol. 52, Archives Office of New South Wales, 2/3235, p. 1.  The former summarised the point in issue as follows: "Where a JP convicted a man for "absconding and going about the country as a rogue and vagabond states he became free when in the bush" & punished him for being in the District without a pass and to be forwarded to the principal Superintendent of Convicts to be disposed of".  Held that such a conviction was illegal."  The latter's account of the judge's summing up is extracted below.

The notebook account of the appeal is at vol. 52, p. 144.