[false imprisonment – assault – arrest, police duties to accused]

Mooney v. Walters

Supreme Court of Van Diemen’s Land

Pedder C.J., 10 December 1834

Source: Colonial Times, 16 December 1834

Before His Honor the Chief Justice, and the following Jury:- Andrew Crombie; John Dunn; Edward Abbott; and John Bell, Esquires.

            This was an action brought to recover compensation in damages for an alleged assault and false imprisonment. The declaration contained five counts, the four first set forth the false imprisonment, and the fifth set forth the common assault.

            William Peel examined. - Was at the Police-office on the evening of the 16th of July last; accompanied Mr. Walters that evening to the Military barracks; saw at the barracks the plaintiff in the present action; Mr. Walters gave the plaintiff into witness’s custody, on a charge of stealing a piece of money.

By His Honor. - Constables are obliged to say a prisoner is charged with a particular offence at the watch-house, or they would not be received.

Cross-examined. - The plaintiff was in custody about an hour; Mr. Walters did not directly in words charge the plaintiff with sealing the piece of money; he only said the piece of money was his. There was a piece of money produced to Mrs. Mooney; it was a Queen Anne’s five shilling piece; Mrs. Mooney said she received it from Corporal Molloy. Mr. Walters asked witness what was to be done; witness said, “don’t charge her with felony.” Witness told the plaintiff that Molloy said he had not given her the piece, and I asked her if she had any person who could prove Molloy gave it her. The plaintiff, when first charged with having the money improperly in her possession, appeared like most women when flurried, and kicked up a great row. Witness considered he was taking the plaintiff in custody on his own responsibility, on the strength of Mr. Walter’s assertion. Mr. Walters did not desire witness to take the plaintiff in custody.

Mary Mahon examined. - Is the wife of a soldier in the 21st Regiment; was present in the plaintiff’s room when Mr. Walters and Mr. Weavell came about a bad dollar; Mrs. Mooney told them where she got the piece from; was present when the plaintiff was taken into custody.

Mr. Edwin Weavell examined. - Keeps the Canteen at the Military Barracks; recollects, on the 15th of July last, paying some money into the Derwent Bank; witness paid the money to Mr. Dixon; Mr. Walters was not present; saw Mr. Walters on the following morning who told witness, that one of the dollars witness paid in, on the morning previous, was stolen from him, and requested to know where witness got it from; witness told him that he had it from the plaintiff, to whose room witness, Mr. Walters, and Mr. Peel, went; the plaintiff’s daughter said, she would wear her mother never had the piece produced in her possession.

Cross-examined. - Witness considers Mr. Walters did not give any direction to have the plaintiff taken into custody; considers the constable took the plaintiff into custody upon his own responsibility.

Constable Webber examined. - The plaintiff was in witness’s custody about an hour and a half, and was discharged by Mr. Peel’s own order.

By His Honor. - Is in the habit of discharging persons accused of felony, on the order of the District Constable; did not receive a written order upon the present occasion, not a verbal one from Mr. Peel himself; received the order through a constable.

T. Mason, Esq. examined. - Is Assistant Police Magistrate; recollects the plaintiff appearing at the Police-office, under Major Deare’s engagement; upon that occasion, Mr. Walters did not prefer any charge against her. When the case of Elizabeth Jones, a female servant of Mr. Walters was called upon, witness asked Mr. Walters if he had any charge to prefer against the plaintiff, he said he had not; gave a written order on the night previous on Major Deare’s undertaking to answer for her appearance the next morning for the plaintiff’s discharge from the watch-house; Mr. Walters also came to witness the same night, and requested the plaintiff might be discharged from custody, when witness informed him that she was already discharged.

This was the case for the prosecution.

Mr. Gellibrand shortly addressed the Jury for the defendant, and called the following witnesses.

Mr. Mason recalled. - Understood from Major Deare only the nature of the charge against the plaintiff; did not ask either Mr. Walters or Mr. Peel; Peel told witness that he had taken the wrong woman into custody - that the servant had stolen the piece of money, and that the plaintiff had nothing to do with it.

Corporate Molloy examined. - The witness deposed to having lent the plaintiff 13s. 8d. on the 19th of July, but did not recollect that a piece of money like that was among it; he afterwards recollected receiving the piece and paying it to the plaintiff as a part of the money lent; also, that he also recollected receiving it from Elizabeth Jones to be changed.

The Solicitor General addressed the Jury in reply, in the course of which, he remarked that Mr. Walters, instead of allowing the woman to be arrested, ought to have gone to a magistrate and obtained a warrant; he also thought that the course which had been adopted by the constable, was exceedingly irregular and illegal; of all countries in the world, he thought that in which he had the pleasure to reside, allowed constables the greatest latitude. The Jury had it in evidence that the word of a District Constable was sufficient to procure the discharge of a person accused of felony. The learned gentleman concluded by calling upon the Jury to shew by their verdict, that if individuals chose to imprison persons illegally, that they could not do so with impunity.

His Honor then addressed the Jury, pointing out to them the two material points for their consideration. The first was, did the Jury believe that Mr. Walters gave the plaintiff in custody on a charge of stealing a piece of money. Second, did they believe he gave her in custody for receiving it; if the Jury believed the plaintiff was given in custody by Mr. Walters on the first charge, they would find for the plaintiff; on the contrary if they considered it was on the latter charge, they would find for the defendant.

The Jury retired, and did not again return into Court until nine o’clock, having been closeted six hours, the time allowed by the new Jury Act to enable a majority to decide.