[malicious prosecution - ticket of leave - trial by jury - Law Officers, private practice - Stephen, Alfred, criticism of]

Pearce v. Loane

Supreme Court of Van Diemen's Land

Pedder C.J., 14 May 1834

Source: Colonist, 20 May 1834[1]

The extraordinary proceedings, mentioned at the close of the following report of a trial, took place in the Supreme Court yesterday: -

(Before the Chief Justice and the following Jury.)

R. Lewis, Foreman John Brown

H. Melville Joseph Lester

J. G. Jennings Job Neal

John Mezger J. Makepeace

William Levitson T. Nicholls

William Murray J. Martin.

Pearce v. Loane

Mr. Gellibrand and Messers. Cartright and Allport, were for the plaintiff – the Attorney General, and Mr. Rowlands for defendant.

This was an action for malicious prosecution. The facts were shortly these:- The plaintiff, a ticket-of-leave man, was employed by the defendant as overseer at this estate at Lee Mount. A trial taking place in Hobart Town, in which defendant was a party, he caused the plaintiff to be served with a subpoena, but afterwards finding that he did not require his evidence, he told him that he need not quit the farm, considering that having himself subpoenaed him, he could dispense with his attendance. Plaintiff, on the other hand, considering that having been served with the subpoena, he was bound to obey it, went to Hobart Town, accordingly, where defendant discharged him, and when he afterwards caused him to be taken into custody upon a charge of embezzlement. For this he was tried and acquitted. Defendant afterwards prosecuted him upon anther charge, for stealing the lock and barrel of a rifle gun, for which he was also tired and acquitted; and for this last prosecution, as being malicious, and without probable cause, this action is brought. It was very ably contested by Council on both sides. Mr. Stephen, for the defendant, took several technical objections to pleadings, all of which the chief Justice over-ruled, except one, which was the following:- The charge as we have stated, exhibited by the defendant against the plaintiff, was for stealing a lock and barrel of a gun. He was tried in the summary jurisdiction of the Quarter Sessions, where the practice is to receive the evidence to a certain point against the accuse, sufficient to put him in possession of the nature of the accusation, and then call him to plead. Thus the prosecutor has nothing to do with the drawing of the information. By the record of the proceedings produced by the Clerk of the Peace, it appeared that the plaintiff was indicted for stealing a gun, and not as the defendant had charged him before Mr. Anstey, the Committing Magistrate, a stock and barrel. The declaration in the present action being in accordance with the record of the Court of Quarter Sessions, was objected to by Mr. Stephen, on the ground that there was no evidence to prove (indeed the fact was directly the opposite) that the defendant ever charged him with stealing a gun; and it was for compensation in damages for having been so charged, that the present action was brought. Mr. Stephen urged this point with great force and ability; as also did Mr. Gellibrand in his reply, urging that the defendant sanctioned the charge upon which the plaintiff was put upon his trial an acquitted of stealing a gun, by giving his own evidence, and calling witnesses thereon, and therefore became responsible for what, had he chosen to discover, he should have done at the time. The Chief Justice was strongly in favor of Mr. Stephen’s objection, but was of the opinion that as difficulties were on both sides – if he nonsuited the plaintiff, Mr. Gellibrand would move to set it aside as incorrect – if he sent the case to the Jury, Mr. Stephen would move to set aside the verdict, should damages be given, on the same ground. In this dilemma, His Honor asked Mr. Gellibrand whether he would consent to a nonsuit. Mr. Gellibrand having declined, and the Chief Justice having then stated his intention to proceed with the case, Mr. Stephen refused to address the Jury, stating (we copy the words of the Jury when they delivered their verdict) "Mr. Gellibrand thinks that he has got a Jury that will give him damages. I will not commit my client’s cause by saying one word to such a Jury." Mr. Stephen added, "If they choose to return a verdict against law, that may do so."

This open declaration evidently made a great impression upon all present. The Chief Justice summed up with very great care and precision and with the very strictest impartially; and in the course of his charge, His Honor stated, the course of his charge, His Honour stated, "that it being necessary in these actions that the judge should state to the Jury, whether there was "probable cause" for the prosecution; in his opinion there was none." The Jury retired for half an hour; on their return, Mr. Lewis, the foreman, delivered the verdict from a written paper, as follows:- " We find a verdict for the plaintiff, upon the whole declaration, for one hundred and thirty pounds. The Jury cannot allow the present opportunity to pass without expressing their regret that the Attorney General should have imputed motives to them which they consider are conveyed by the following expression; ‘Mr. Gellibrand thinks he has got a Jury that will give him damages. I will not commit my client’s case, by saying one word to such a Jury.’"

[The above report is taken from the Tasmanian]

Pedder C.J. and Montagu J., 3 June 1834

Source: Colonist, 17 June 1834

Sittings in Banco.

TUESDAY, JUNE 3, 1834.

The Attorney General moved for a rule to shew cause, why there should not be a new trial, in the case of Pearce v. Loane, on the ground that one of the Jurors, (Mr. Merger) was an alien, and consequently ineligible as a Juror.

Their Honors heard the argument this day.

The Solicitor-General opposed the granting of letters of administration to Ann Ballinger. Hearing postponed to this day, in order to allow time for all parties to be finished with the copies of certain affidavits, which the Solicitor-General said contained some reflections on one of the Gentlemen of the Bar.

Source: Colonial Times, 20 May 1834

            The following Gentlemen were sworn as Jurymen:-

Messrs.

R. Lewis, Foreman                               R. Makepeace

E. Miller                                               J. Martin

J. G. Jennings                                       Job Neal

William Murray                         Joseph Lester

William Leviston                                   T. Nichols

John Merger                                         H. Melville

Messrs. Gellibrand, Cartwright, and Allport, for the plaintiff; and Messrs. Stephen McDowall, and Rowlands, for the defendant.

Mr. Allport opened the case by reading the information, which contained four counts, all of them setting forth, that the defendant illegally and without any probable cause, caused the plaintiff to be confined in gaol for the space of five days, on a charge of stealing one rifle barrel, one rifle lock, and one hammer, belonging to the said rifle. The damages were laid at £500.

As soon as Mr. Allport had concluded, Mr. Gellibrand addressed the Court to the following effect:- May it please your Honor and Gentlemen of the Jury. The present action is brought by my client to recover compensation for a malicious prosecution instituted against him by the defendant, Mr. Loane. In the prosecution to which I refer, my client was charged with stealing the articles set forth in the declaration. My client, gentlemen, was first confined in the gaol at Oatlands; he was then brought to Hobart Town, and bailed by the Chief Police Magistrate, to appear and take his trial at the Quarter Sessions. He was tried and acquitted in the most honorable manner, as I will presently shew you. I will prove to you also that this prosecution was instituted without any probable cause. The present action is of great importance to the community generally; for while on the one hand the law affords ample protection to the prosecutor, it will shew the public that it also affords redress to unfortunate victims of unfounded and malicious prosecutions. The Courts before which prisoners are tried will always protect prosecutors from any unfair proceedings, by withholding the record; but on the other hand, they are always willing to produce them for the purposes of justice. As Counsel for the plaintiff in this action, I will point out to you all the material circumstances, and I beg of you to consider them calmly and dispassionately, and give such a verdict, after hearing the evidence I shall produce, as you may think the justice of the case demands. The facts of the case are shortly theses:- The plaintiff resided at New Norfolk some years ago, and was unfortunately tried and convicted of receiving some stolen pine. After the usual period of probation, he received from the Government the indulgence of a ticket-of-leave. Soon after, unfortunately for himself, he engaged with Mr. Loane as his overseer. Some of Mr. Loane’s servants were some time afterwards charged with the commission of an offence, and the plaintiff was summoned to Hobart Town to give evidence for one of the prisoners. The plaintiff informed Mr. Loane of his having received a summons, who refused to allow him to attend. The plaintiff at the time merely holding a ticket-of-leave, was compelled to tell Mr. Loane that he must attend, otherwise his indulgence would be endangered. Mr. Loane, in reply, threatened the plaintiff with his vengeance should he do so. This took place in March, 1833. The plaintiff did attend, and Mr. Loane, three or four days afterwards, had Pearce arrested in Hobart Town, and tried for embezzlement, but failed to substantiate the charge and Pearce, of course, was acquitted. Immediately after the acquittal, Mr. Loane said, in the hearing of parties whom I will produce, “He has luckily got off that, but I will find some other charge against him.” Pearce was tried again, at the instance of Mr. Loane, on the 16th May, charged with felony.

[The Attorney General objected to Mr. Gellibrand going into such particulars. Mr. Gellibrand said he was compelled, for the information of the Jury, to enter into all the particulars relative to the last arrest, which was the ground-work of the present actions. The Attorney General begged pardon for his interruption.]

Mr. Gellibrand then proceeded - Pearce was again acquitted, yet within the space of an hour, Mr. Loane said, although he had been lucky enough to get out of that, he would bring another charge against him, and immediately on his return to his farm set to work among the men to get up another case. Defendant got a man named Yates to sign a memorandum relative to a gun barrel, and which he transmitted to his agent, Mr. Murray. On the 29th July last, the plaintiff was charged, on oath, before Thomas Anstey, Esq., with stealing a piece of silver, lock, and the barrel of a rifle gun, together of the value of £5. Mr. Anstey issued his search warrant, and the plaintiff’s premises were searched, yet nothing was found. I shall shew you, gentlemen, by the evidence of Mr. Loane’s servants, that these very articles were in Mr. Loane’s possession after Pearce left his service. To show you that Mr. Loane was the prosecutor of this case, Mr. Hone, the Chairman of the Court of Quarter Sessions, asked him most emphatically upon the trial, “Do you appear as prosecutor?” Mr. Loane said, he did; and so satisfied was the Court of the prisoner’s innocence, that the Magistrates prevented me from calling any witnesses to shew the facts. On behalf, therefore, gentlemen, of this injured man, for he is an injured man, and in order that he may have some measure of justice dealt to him at the hands of a Jury, I appear before you to-day, and while both you and myself would protect the master in the proper control of his servants, you will also, I am sure, shew your abhorrence of such proceedings as I have detailed to you. We are bound, as members of society, to deal out an equal measure of justice to every member of the community. When we see a man like Mr. Loane, with the most persecuting and vindictive spirit, endeavouring to destroy the fair [???] of my client, who is a poor man, simply because he had committed the daring offence of disobeying Mr. Loane’s injunction, when, to have obeyed it, would probably have cost him the indulgence he held from the Government, can it be said that Mr. Loane’s conduct proceeded from an innate love of justice? I will shew you that such a supposition is groundless; for the very articles which my client was charged with stealing, were in Mr. Loane’s store-room, of which he kept the key himself. With this outline of my client’s injuries before you, I trust, after hearing the evidence, you will return such a verdict, as in your consciences you may consider the justice of the case requires.

Mr. Gellibrand then called the following witnesses:-

Thomas Brown examined. - Is Police Clerk at Oatlands; was so in the month of July last. (Paper produced is an information taken on oath before Thomas Anstey, Esq., a Magistrate of Oatlands’ district. Saw it sworn to; it was taken on the 29th of July. The information is signed both by Mr. Anstey and Mr. Loane; saw them both sign it; there was a warrant issued upon the information; was not with them when the warrant was issue.

Samuel Robinson examined. - Was, in July last, a constable at Oatlands. The papers produced are in witness’s hand-writing; remembers Mr. Loane applying for a warrant to apprehend a man named Pearce, for stealing a gun, and defrauding him of various sums of money; saw Pearce in custody. Recollects several depositions being taken after Pearce was in custody. The paper produced is Mr. Loane’s deposition; it is signed by Mr. Loane. After the depositions were taken, Pearce was again sent back to gaol. Several depositions were then read, which were taken before Thomas Anstey, Esq. and among them the evidence of the man Yates, which set forth that he (Yates) knew nothing of the contents of a paper which he signed, until it was read to him at the Oatlands’ Police Office.

Examination continued. - The paper produced seems to be in Mr. Loane’s hand-writing.

George Dudfield. - Was gaoler at Oatlands in July last; is so still. Had Pearce (Mr. Loane’s overseer), in custody in July last; held him in custody under the warrant produced; received it from Mr. Salmon. Was present during the examinations at the Police Office; thinks Mr. Loane was present the whole time. Pearce was afterwards taken back to gaol; remained in witness’s custody until the 18th, when he was sent to Hobart Town, also in custody. Was present in the Police Office when a man named Yates was examined; recollects a memorandum being spoken to by Yates, but does not recollect the nature of it.

A constable named Higgins was called, who deposed to conveying Pearce from Oatlands to Hobart Town Gaol.

Matthew Forster, Esq. examined. - Is Chief Police Magistrate. Recollects a man named Pearce being brought before him for stealing a gun, the property of Mr. Loane, of Oatlands. (On referring to the record, it appeared that Pearce was only charged with stealing part of a gun.) Admitted him to bail.

Cross-examined. - Knew nothing of the transaction, except from the depositions.

A Clerk to Mr. Capon examined. - Received into the Hobart Town Gaol, in August last, a person named Pearce; the warrant produced is the authority under which he received him.

Hugh Ross, Esq. examined. - Recollects the plaintiff in this action being tried before the Quarter Sessions, on the 6th of January last, for stealing part of a gun. Mr. R. W. Loane, was the prosecutor. Pearce was acquitted; he was not put upon his defence. The document produced is an office copy of the proceeding upon the trial. The memorandum, signed by Yates, is the one referred to in the depositions taken upon the trial. (The depositions taken before the Court of Quarter Sessions, were here read by the Clerk of the Court.)

Examination continued. - The memorandum, signed John Yates, is in the hand-writing of Mr. R. W. Loane.

Cross-examined. - Pearce was tried twice on the same day; Mr. Loane was examined as a witness. Pearce was charged with embezzling fifteen shillings, as well as stealing part of a gun. A person named Burthon, to whom the money said to have been embezzled, belonged, was called as a witness, but did not answer, and consequently the prisoner was acquitted.

Previous to going into the evidence, it is the Chairman’s custom to inform the justices of the nature of the charge against the prisoners, but at the conclusion of the trial, a formal charge is drawn up. The Chairman’s charge is founded upon the depositions sent to him by the committing Magistrate. Knew Mr. Loane was the prosecutor, from a conversation witness had with him in the course of the morning, and from his manner of giving evidence. It is usual to look upon the individual who owns the stolen property, to be the prosecutor.

By Mr. Gellibrand. - Recollects the Court asking Mr. Loane if he had any other witnesses to produce; Mr. Loane replied he had not.

Joseph Hone, Esq. examined. - In Chairman of the Court of Quarter Sessions. Received the depositions produced from the Chief Police Magistrate. Recollects a man named Pearce being tried in January last.

Recollects asking Mr. Loane upon the trial if he was the prosecutor; Mr. Loane said he was. Pearce was tried under the Summary Jurisdiction Act. Asked Mr. Loane at the conclusion of the trial if he had any more witnesses to produce; he said he had not. Pearce was acquitted; he was tried twice in the same day, and acquitted upon both occasions.

Cross-examined. - Mr. Loane was the prosecutor in both cases; he was asked the question in the last case as well as the first.

[Mr. Hone here produced his appointment as Chairman of the Court of Quarter Sessions, saying it might perhaps be necessary.]

John Burnett, Esq. examined. - Is Colonial Secretary. Has the custody of the record containing the list of Magistrates in the Colony. Mr. Gellibrand said he had only subpoenaed Mr. Burnett, because he did not know to what extent the objections of the defendant’s counsel might extend.

Joseph Allport, Esq., examined. - This witness deposed to having been engaged as counsel for the prisoner in May last; also to meeting Mr. Loane on leaving the Court, who said to witness, “Pearce has been lucky.” Witness said, “He deserved to be lucky.” Mr. Loane said, “I shall soon have other charges against him.” Witness said, “I hope you will not be so vindictive as to look for them.” Mr. Loane said, “Indeed I shall - he is a bad man, and has robbed me to a considerable amount.” Received a letter afterwards from Mr. Loane containing an account, said to be due from Pearce to him. Saw Mr. Murray several times, for the purpose of going over the account; stated he received it from Mr. Loane; cannot say in whose hand-writing the account was.

R. L. Murray, Esq. examined. - Has been Mr. Loane’s agent for the last eighteen months. Received a letter in May last respecting a dispute between himself and Pearce; there was an enclosure, but as the negotiation was broken off; he returned it to Mr. Loane; cannot say whether the enclosure was an account or not; thinks it was; returned the letters into Mr. Allport’s hands; they were in Mr. Loane’s hand-writing.

Examination of Mr. Allport continued. - The paper shewn by Mr. Murray to witness was an account of Mr. Loane’s claim against Pearce; there was an item of £5 for a gun, or part of a gun, alleged to have been lost by the plaintiff while in Mr. Loane’s service. Issued a summons to Mr. Loane on the part of Pearce before this; witness’s interview with Mr. Murray was before the month of July. In consequence of Pearce’s prosecution, he has incurred upwards of £30 expenses for subpoenaing witnesses alone.

Cross-examined. - Expects to receive a sum of money on Pearce’s account, out of which the costs will be paid; the money is to come from Mr. Rowlands [The Attorney General observed that was feeding up on each other.] Knew Pearce first in the beginning of last May; Pearce was immediately afterwards tried for embezzlement; witness was his counsel; believes Mr. Loane to have meant by the expressions made use of to witness, that he had the means of bringing other charges against Pearce. Communicated with Pearce respecting the account; does not recollect telling Mr. Loane of Pearce’s reply, which was, that he knew nothing of the gun except that he had it to get mended, and left it on Mr. Loane's premises; believes he did communicate Pearce’s reply to Mr. Murray; believes the plaintiff is employed upon Mr. Melville’s farm at New Norfolk.

[The Attorney General said, if Mr. Allport was aware of that fact before the Jury were sworn, he ought to have mentioned it, as Mr. Melville was sworn as one of the Jury. Mr. Allport said he did not see Mr. Melville sworn.]

His Honor asked Mr. Allport when he received the account from Mr. Loane? Mr. Allport said, he thought it was in the beginning of June.

John Watson examined. - Was assigned to Mr. Loane in 1832; was afterwards made a constable; was in Mr. Loane’s service at the time Pearce was overseer; saw Mr. Loane give Pearce in charge, upon leaving the Court House in Hobart Town, after giving evidence in a case in which he was subpoenaed; this was in March 1833; recollects a small rifle gun, it was damaged in the stock; it was the only rifle upon the farm. Went back after the trial, in March 1833, to Mr. Loane’s premises; never saw Pearce on the farm after his being given in custody by Mr. Loane; saw the rifle on the 2nd or 3rd of April on Mr. Loane’s farm; saw the hammer of the rifle upon a gun belonging to John Bates, a carpenter who was in Mr. Loane’s employ; saw it afterwards in the latter end of June, in a store behind the door. Mentioned the circumstance to Solomon Allen, Mr. Loane’s overseer; Mr. Loane was in the store at the time, there was no disturbance about the gun at that time. The store is part of Mr. Loane’s dwelling house; Miss Louisa Loane usually had the key; the men were not allowed to go into that store, except with some of the family.

By His Honor. - Did not take the barrel into his hand when he first saw it in the store; resided a short time at New Norfolk; has only seen Pearce once since January; does not know where Pearce lives at present; witness is in a road party.

David Le Caux examined. - Was in Mr. Loane’s employ for upwards of twelve months; was so when Pearce was overseer; recollects a rifle gun; knows it well; was present when Mr. Loane discharged Pearce, he was discharged in consequence of his determination to attend to a subpoena which he had received; saw the barrel, part of the stock and the hammer in the arm chest, on the first Monday in April. It was about a week after Pearce’s discharge; the chest was in Pearce’s hut; left Mr. Loane’s service a few days afterwards.

The Attorney General rose, and addressed the Court to the following effect:- The information set forth, that the defendant caused the plaintiff to be apprehended for stealing certain parts of a rifle gun, whereas it was not proved that the warrant was granted upon such a charge at all, but principally upon a charge of embezzlement. Any person making a particular statement upon oath before a magistrate, whereby he is induced to issue his warrant, such person is liable for all things done illegally under that warrant. The plaintiff in the present case had gone out of his way, to assert that the warrant upon which he was apprehended, was granted at the instance of the defendant. In order to stamp any individual as a prosecutor, it is necessary that he should identify himself with the proceedings in every stage. The warrant upon which the plaintiff was apprehended, contained three or four charges, with some of which, the defendant was altogether unconnected. The plaintiff asserts, that the defendant caused him to be brought to Hobart Town which was not made out. It should have been set forth, that the sending him to Hobart Town, was the act of the magistrate alone.

[A conversation here arose between His Honor, the Attorney-General and Mr. Gellibrand, relative to the prevailing practice in England, respecting indictments brought before the Court of Quarter Sessions.]

The Attorney General said, that he objected to the first count of the information, on the ground that the defendant was not indicted in any sense. It was perfectly unnecessary in the present action, to have said that the defendant was the prosecutor, but as it had been done, he had a right to object. If his objection was good, then the count was not made out.

The Justice of Quarter Sessions, merely as Justices had no jurisdiction in their individual capacity. They must be assembled as a Court before they could act. Their individual jurisdiction as magistrates extended all over the Colony. It should therefore have been set forth, that the plaintiff was acquitted by the Court, and not by the Justices. There was another objection also, viz, that it was no where set forth, that the plaintiff was a prisoner of the Crown, and therefore subject to the summary jurisdiction of the Court, with respect to the expressions made use of by Mr. Loane to Mr. Allport, any man might have made use of them with the most perfect good intention. If such expressions were to be tortured into malice, there was not a gentleman at that bar, who might not be accused of it. It was natural for the losing side in an action, to feel a little sore.

His Honor said, that he would reserve the Attorney General’s objections for future argument; he must say however, that he considered Mr. Loane, by his complaint, caused the plaintiff to be apprehended.

The Attorney General said, he forgot that he was addressing the Court, and not the Jury, and, therefore, should not offer any further observations.

Mr. Gellibrand then shortly addressed the Jury, pointing out to them the grievous injury his client had suffered at the hands of the defendant; and recapitulating the proceedings before the Court of Quarter Sessions, with a view to shew that Mr. Loane was the actual prosecutor; and concluded by calling upon the jury to give such damages as they thought the justice of the case demanded.

His Honor said, that all the way through, the plaintiff was said to have been charged before the Justices with stealing a part of a gun, whereas by the record it appeared that the prisoner was charged with stealing a gun. He scarcely knew what to do; whether to nonsuit the plaintiff, or send the case to the Jury. His Honor asked Mr. Gellibrand, if he would allow a nonsuit to be recorded.

Mr. Gellibrand said, he would not accept a nonsuit.

Mr. Attorney-General. - This is the first instance in this Colony, within my experience, in which a plaintiff has permitted in his case, after the opinion of the Court, so decidedly expressed, that he is not entitled to succeed in it. Assuming the opinion of the Court to be correct, the plaintiff cannot succeed but by the obtaining of a verdict contrary to law. The plaintiff’s proceedings is, therefore, equivalent to a declaration, that he has got a Jury that will give him damages, whether with the law, or against the law; and I therefore, will not commit my client’s cause by saying one word to such a jury.

His Honor addressed the Jury at some length, recapitulating the whole of the evidence most minutely, and drawing the attention of the Jury most particularly to two points, viz., whether Mr. Loane made, or caused to be made, the charge upon which the warrant to apprehend the plaintiff was issued; and as to whether there was or was not, malice on the part of the defendant; also, whether there was or was not, probable cause for the prosecution - in his opinion there was none. The Jury then retired, and remained out of Court about half an hour.

While the Jury were out of Court, his Honor called Mr. Gellibrand and said, “he believed no man could be tried by summary jurisdiction, unless a specific charge was laid against him; in the present case, the charge was framed from the evidence adduced upon the trial.”

Mr. Gellibrand thought the depositions taken before the committing Magistrate was charge sufficient.

On the return of the Jury, the foreman addressed the Court, saying he had a few observations to make, prior to returning the verdict. He read from a written paper as follows:- “The Jury cannot allow the present opportunity to pass without expressing their regret, that the Attorney General should have imputed motives to them, which they consider are conveyed by the following expressions” - “Mr. Gellibrand thinks he has got a Jury that will give him damages.” “I will not commit my client’s cause by saying one word to such a Jury.” - We find a verdict for the plaintiff, upon the whole of the declaration for One Hundred and Thirty Pounds.

His Honor said, he did not understand the Attorney General to mean any disrespect to the Jury by the observations.

After the verdict was returned, Mr. Gellibrand applied for leave to enter the verdict on some of the counts of the declaration.

The Solicitor-General. - Then the Jury must find a verdict for the defendant in the other counts, which I have no doubt will be distressing to their feelings.

The Jury. - No; we find a verdict generally.

Mr. Gellibrand. - It is not necessary to alter the verdict; the usual course is to ask permission of the Court to enter the verdict upon particular points.

The Chief Justice assented, and directed the clerk of the Court to take the verdict generally, and the application of Mr. Gellibrand.

Supreme Court of Van Diemen’s Land

10 June 1834

Source: Colonial Times, 17 June 1834

Mr. Gellibrand appeared to shew cause against the granting a new trial in the case of Pearce v Loane.

A good deal of desultory conversation occurred between their Honors, the Attorney General, and Mr. Gellibrand, who contended that the plaintiff had been apprehended illegally, in consequence of Mr. Loane’s deposition before Mr. Anstey, and that, consequently, Mr. Loane must be considered as the cause of the plaintiff’s apprehension. The Court of Quarter Sessions also preferred a charge upon the evidence of Mr. Loane, and placed Pearce upon his trial upon the strength of Mr. Loane’s evidence before Mr. Anstey.

Mr. Justice Montagu. - There is all the difference in the world, Mr. Gellibrand, between a man’s being charged with stealing a gun, and part of a gun.

Mr. Gellibrand submitted, that if a charge is framed erroneously, by a count containing more than the prosecutor originally intended - if the prosecutor is present, hears the charge, and is asked if he has any more evidence to support it, he is responsible for all that is contained in that charge. He submitted, that the prosecutor, under such circumstances, was not only responsible in law, but he was responsible both in honor and morals. If Mr. Loane had been present at the Police Office, when a false warrant was issued by a Magistrate, to which Mr. Loane, on hearing it read, assented, he contended, that Mr. Loane would be liable for all the consequences of that warrant; so, also, at the Court of Quarter Sessions.

Mr. Justice Montagu. - Mr. Gellibrand would have to shew the authority of the Court of Quarter Sessions, to frame the charge upon which the plaintiff was tried.

Mr. Justice Montagu directed Mr. Gellibrand’s attention to one of the counts of the declaration, in the action, Pearce v. Loane, which set forth, that the plaintiff was legally charged before the Court of Quarter Sessions, which it would be necessary for Mr. Gellibrand to prove, before the Count could be made out.

Next Tuesday (this day) was then appointed for the further hearing of the case.

The Attorney General said, that this day was appointed to shew cause in favor of letters of administration being granted to Ann Ballinger - at the time this day was appointed for hearing arguments in the case, certain affidavits were filed, he did not know by whom, reflecting upon the character of one of the attornies of the Court. He wished to know how he might obtain an opportunity of acting upon the brief which he held from the attorney whose character was impugned in those affidavits.

The Attorney General said he appeared for Mr. Stanley only, whose character had been impugned in the affidavits just read by the Solicitor General. The question of whether the letters should issue was entirely for the consideration of the Court, and with which Mr. Stanley has nothing whatever to do. If Mr. Stanley has taken advantage of this old drunken woman to purchase this property at an unfair price, that was for the consideration of the Court. The question as regards Mr. Stanley is, can he maintain his right either in law or in equity to the property he has bought? Now it is only by the very great courtesy of the Court that Mr. Stanley has an opportunity of replying to those charges. Mr. Muir, who has sworn the property is sold under its value, did not tell the Court that he is a butcher, residing within a few doors of the property, and that Mr. Stanley has bought the reversion of the properly only.

An affidavit of T. Y. Lowes, Esq. was then read by the Attorney General, which set forth that the value of the property bought by Mr. Stanley, was not worth more than £220, which was the amount given by Mr. Stanley. The Attorney General had also affidavits from Mr. Chapman and Mr. Stracey, to the same effect. There was a mortgage upon the property of £180 when Mr. Stanley bought it. Throughout the whole business, Mrs. Ballinger was mentioned, whereas, in effect, she had no right whatever to the property. The right of property was vested in the heir at law, with whom, as well as Mrs. Ballinger, Mr. Stanley made his bargain. The Court perhaps were not aware that the property in question was the celebrated No. 1 Grant, which the Government has granted to a second individual, who however has not at present taken possession. Mr. Muir says he is willing to give £360 for the property, but he would not give that price unless he could get immediate possession, and unincumbered, whereas Mr. Stanley bought it with the knowledge that he would have to wait the reversion, and you have the affidavit of Mr. Lowes, who says that the property would not sell for more than £200 by public auction. Cooling has himself admitted, that £35 was paid to release him (Cooling) from gaol, and even supposing that Mr. Stanley knew of this deed, he did not think that Mr. Stanley would have been guilty of the slightest impropriety, and he was satisfied that the Court would consider, that Mr. Stanley had in the fullest manner cleared his character, from the stain which had been endeavoured to be cast upon it.

Mr. Gellibrand then rose, and contended that the letters of administration ought immediately to be granted to Mrs. Ballinger, she having complied with the necessary forms, as well as with everything contained in the will of her deceased husband.

The Chief Justice said that it was usual to grant letters to the widow or next of kin. In this case the widow has applied, and the next of kin has not.

Their Honors said, they would take time to consider it.

Supreme Court of Van Diemen’s Land

17 June 1834

Source: Colonial Times, 24 June 1834

Mr. Gellibrand rose to shew cause against the granting a new trial in this case. The point mooted upon the trial was, whether the charge exhibited against the plaintiff was, or was not, the act of the defendant, in reference to which he submitted that seeing that the justice of the case was entirely with his client, he thought it would be extremely unjust to his client to disturb the verdict. The learned gentleman cited some cases, to shew that where the justice of the case has evidently been with the party against the action, the Judges have not disturbed the verdict, although it has not been strictly in accordance with the evidence. It could not be doubted for a moment, that the plaintiff in this case was entitled to his verdict; indeed, if he recollected right, the Judge said, that there was no pro-probable cause for the prosecution; and, he contended, if the circumstances which came out upon the trial were correct, the damages were exceedingly low; and that, at all events, he was, in equity, entitled fully to what he got. Unless, therefore, the Court was compelled to make the rule absolute, and thus shut his client out from the possibility of obtaining redress for the injuries he received, it would not disturb the verdict, he was satisfied. Even the evidence itself, he further contended, was sufficient to satisfy the Jury that the proceedings were those of Mr. Loane. The fifth and sixth counts of the declaration were confined to what took place at the Court of Quarter Sessions, and would bear out the proceedings before that Court.

Solicitor General. - Yes, but you did not take your verdict upon those counts.

Mr. Gellibrand. - No, the verdict was given me generally. I moved the Court to take them upon the two first counts; but if it is competent for you to raise an objection, not even thought of at the time of trial, it is equally competent for me, as the judgment is not entered up, to alter it to any other count I please.

The Chief Justice. - I don’t think there was any evidence that the plaintiff was charged by Mr. Loane at all.

Mr. Gellibrand. - I submit, your Honor, that the evidence of Mr. Hone was perfectly satisfactory on that head. The object of the Court of Quarter Sessions by Act of Parliament is to try by summary jurisdiction, and it has done so.

The Chief Justice. - The only difference between the Court of Quarter Sessions and the Supreme Court is, that the one tries without the intervention of the Grand Jury, and the other does not.

Mr. Gellibrand. - I submit, your Honor, that it is very hard upon my client, that he should suffer because the Court is informal; and I further submit, that after the verdict is returned, it is too late to take such an objection. The Court has no power to alter the record, nor have I, and if hundreds of prisoners have been illegally convicted, it cannot now be helped. I therefore humbly submit, that under all the circumstances, the justice of the case being evidently with my client, the Court ought not to disturb the verdict.

The Attorney General rose and addressed the Court, as follows:-

Throughout the whole of Mr. Gellibrand’s arguments, he has not seemed to state the exact point raised against him, which is, that Mr. Loane neither preferred, or caused to be preferred, the charge adduced against the plaintiff. We allege, that neither inferentially, or in truth was the charge that of Mr. Loane, neither did he sanction it. The verdict given in the case, the Court must see, is not only unsupported by, but is repugnant to, the evidence, and consequently it must be set aside. I have heard with no small surprise from Mr. Gellibrand, that the verdict is just. The Court of Quarter Sessions, had no authority to place Pearce upon his trial, for a much stronger offence than that with which Mr. Loane charged him; and because the Court charged him, it is said, he was charged by Mr. Loane. Because he stole a part of a gun, the Court takes upon itself to say, he stole a whole gun. Such, however, was not Mr. Loane’s charge; and, therefore, the Court had no authority to put the plaintiff upon his trial at all. Even during the trial, there was no evidence to shew he stole a gun; and yet, after the trial, when the charge is framed, they charge him with stealing one; nothing, whatever, has been produced to shew, that stealing a gun was Mr. Loane’s charge. The Court extracted the charge from the evidence, and over the evidence, Mr. Loane had no control.

Mr. Justice Montagu. - If a man make a charge at a Police-office, he is liable for the consequences; the Attorney General frames his indictment from the evidence there given.

Attorney-General. - No man can say that Mr. Loane is answerable for that which he was compelled to do. I freely admit, that Mr. Loane is responsible for what took place at the Police-office; but if the plaintiff goes out of his way to say that Mr. Loane shall answer to him for what was not his own act, then he is not liable. Had he alleged that the defendant caused him to be arrested and committed, his right of action would be complete, and no man would have denied it; but they go out of their way to say, Mr. Loane charged, and caused him to be charged; that is an allegation which is not proved, but disproved, and therefore, the verdict should be set aside. Because the Jury take upon themselves, illegally taken upon themselves, to say that the case is proved - because a Jury go out of their way to say whether facts are material or not, can that be called justice! It is impossible, unless it would be justice to introduce into all the transactions of life a complete chaos - than which the worst law would be far, very far, preferable. In my opposition to the verdict, I consult singly the interest of my client, and I am justified, in my own opinion, by the concurrence of my learned friend (the Solicitor General); I certainly did say, that I would not address a single observation to that Jury upon which the plaintiff seemed to place such great reliance, but leave it to the proper arbiter - the Court. Were the same verdict to be returned three times, or thirty times, I should not hesitate to come forward with proper respect, and ask for another trial; but I do not believe, if a new trial is granted me, that the case will be again tried by a Jury at all. I believe I can obtain that justice which the law of the land - which the country to which we belong - grants to each individual of the community, without troubling a Jury for a second verdict.

The Chief Justice, after a few minutes consultation, said, the Court was of opinion that a new trial should be granted.

Mr. Gellibrand moved, that the defendant might bear the costs.

The Chief Justice said, the costs would abide the decision of the next trial.

Mr. Gellibrand then moved that the case might be tried by a Jury, which was granted.

Notes

[1] See also Tasmanian, 16 May and 20 June 1834.

See also an editorial in the Colonist, 20 May 1834, claiming that this case "affords a full illustration of what a hatred, the whole of the Law Officers of the Crown entertain towards Juries. Even Mr. Stephen, of whom we had such hopes, that he would follow in the footsteps of his revered and honored father, in common with all the other scions of his independent and respected family - even he has become infected with the system, and turns against the liberty of the People." The editorial continued in a similar way for some length, stating that the Law Officers (Attorney General and Solicitor General) should have no right of private practice. See also Colonist, 3 June 1834 for another editorial on trial by jury, and on Stephen see also In re Robertson, 1834. Alfred Stephen was Attorney General of Van Diemen's Land at this time.

See also Pearce v. Thomas, Colonist, 3 June 1834 (the same plaintiff?).

On 2 May 1834, Mr Gellibrand on behalf of the plaintiff moved for trial by jury in this case. The Attorney General replied that Mr Loane had no objection to the application "but as there are several points of much intricacy involved in all such actions, he considered that substantial justice would be done as well by Assessors, as by a Jury. He should have no objections to a Jury, was it special, composed of educated men, but at least nine out of the twelve of whom the Juries are at present composed are not such; he thought the fairer course was to leave the case to the ordinary tribunal." The court ordered a jury. Source: Tasmanian, 9 May 1834.