[assault – police powers, power to arrest - capital punishment - flogging - torture]

R. v. Greenwould

Supreme Court of Van Diemen's Land

Montagu J., 1 April 1834

Source: Colonial Times, 8 April 1834

            Joseph Greenwood stood charged with assaulting and beating, on the 17th of March last, one Thomas Terry.

            The information contained four counts. - In the first, the prisoner was charged with assaulting the prosecutor with a knife, with intent to murder him; the second, charged him with the intent to maim the prosecutor; the third, with intending to do him some grievous bodily harm; and the fourth, with assaulting him, for the purpose of endeavouring to effect his escape, the prisoner having been at the time liable to be apprehended as an absentee.

            Thomas Terry examined. - Is a constable; was on the New Town race course on the 17th of March last, saw the prisoner there with another man; both the prisoner and the other man were absentees. Told them to consider themselves in custody, believes he called them by name. On telling them to consider themselves in custody, the prisoner rushed away from witness; he pursued him, and on coming up to him said, if he did not stand, he (witness) would knock him down. Prisoner said, if witness came near him, he would rip his guts out. Witness then rushed upon him, and received several wounds from a knife, which the prisoner held open in his hand; lost a large quantity of blood, and became so weak, that he could not continue the pursuit. When witness first attempted to apprehend the prisoner, he said he would not be taken by any constable in Hobart Town.

            This witness underwent a rather long cross-examination by the prisoner, the substance of which was an endeavour on the part of the prisoner to prove that great unnecessary violence had been used by the constables previous to the prisoner’s having offered any resistance.

            James Scott, Esq., examined. - Is Colonial Surgeon. Was on the race-course on the 17th of March last; saw the witness Terry there, bleeding profusely from several wounds. There were four wounds altogether; one on the upper lip about four inches in length; it was an incised wound; one very dangerous one at the angle of the jaw, one on the head, and the other on the left side over the ribs.

            Mr. R. Cleburne examined. - Was at New Town races on the 17th of March last; saw the prisoner about a mile from the race-course; he was running; saw two other men, who appeared to be pursuing him; was present when he was stopped; prisoner told the constables not to come near, or it would be worse for them; witness then dismounted, and went over the paling, which was between witness and the prisoner, and seized him; prisoner had a knife in his hand; witness told him to drop it; he then said, “Mr. Cleburne, do you think I would hurt you?”

            Constable Bassenstreet examined. - Took a knife away from the prisoner near the race course; it was covered with blood; the knife produced is the same one; it has a mark on it, which was placed there by Mr. Rowlands at the time; the knife was not out of witness’s hand until the mark was placed upon it.

            Thomas Rook examined. - Was at the New Town races on the 17th of March last; was apprehended on the race-course as a runaway; did not see the prisoner that day; the prisoner and witness were working in the same gang about three months ago; did not know whether the prisoner was in the gang at that time.

            Thomas Terry recalled. - Was told that the prisoner was advertized in the Gazette as a runaway; did not see the advertisement himself; cannot read; was told it was there by Mr. Allport’s servant-maid.

            A conversation here ensued between His Honor and the Solicitor General, as to the necessity of offering evidence that the prisoner was liable, on the 17th of March last, to be apprehended for any offence. The Solicitor General contended that the Government Gazette was sufficient evidence of that fact. The prisoner’s name appeared therein as a runaway, and all persons were, by the Act of Council, competent to apprehend him. His Honor said, that he did not consider the Gazette could be taken as evidence at all. Even supposing it were evidence, it would be necessary to prove the printing and publishing.

            The Attorney General then rose and said, he had to offer one observation for the consideration of the Court, and to that one he should confine himself. He apprehended that the law of arrest gave to constables, and even to private individuals, very extensive latitude. A constable may legally apprehend any man whom he may only suspect has committed a felony; there is no necessity for a constable to make enquiry in such a case, whether or not the suspected individual has really committed felony, but he may immediately apprehend him on suspicion only. Sir William Blackstone, in his Commentaries, had remarked that it is well perhaps for the public that constables generally are not acquainted with the immense powers with which they are invested. Private individuals may apprehend a man, provided they know that he has been guilty of felony, but a constable has the power to apprehend him on suspicion only. In the present case the constable states that he obtained his information that the prisoner was an absentee from the Government Gazette, and he therefore, the Learned Gentleman contended, had very strong grounds for believing the prisoner to have been, at the time he saw him on the race course, illegally at large; and by the Act of Council he was justified in apprehending him.

            His Honor said, that according to the doctrine of the Attorney General, constables were invested with almost unlimited powers; and, in fact, were such a doctrine to prevail, the liberty of the subject would be a mere nullity. His Honor did not believe it would be sufficient, if a servant were to be ordered by his master to acquaint a constable with the commission of a felony, to justify the constable in apprehending the individual pointed out to him. His Honor said, that the Attorney General and himself differed widely in their opinion as to the powers vested in constables by the law of arrest. In the present case he should take the opinion of the Chief Justice on the point. His Honor then addressed the Jury at considerable length.

            The information, His Honor said, contained four counts, all of them charging the prisoner with different intentions in the commission of the offence with which he stood charged, and it would be for the Jury to decide from the circumstances of the case, as to what were the intentions of the prisoner in using violence. In this Colony, said His Honor, any person who has reasonable cause to believe a transported felon to be illegally at large, may apprehend him; the questions, therefore, for the Jury, were, first, whether the constable had reasonable cause to suppose the prisoner was a transported felon; and secondly, what were the intentions of the prisoner when he struck the blows. If they believed that the constable had not reasonable grounds for supposing the prisoner to have been, on the 17th of March last, illegally at large, then he must be acquitted on the last count.

The Jury retired but a few minutes, and returned a verdict of guilty on the second, third, and 4th counts, and not guilty on the first count.

His Honor asked the Jury if they believed the prisoner was illegally at large at the time he was apprehended. They said they believed he was.

Execution

Source: Colonist, 3 June 1834[1]

We have been credibly informed, that the back of the poor unhappy wretch, Greenwould was in such a lacerated state, that when being pinioned previous to execution, the wounds burst and the matter exuded through his shirt. What a dreadful state to send "a man and a brother" to meet death. The Sudds and Thomson affair was cruel, but Greenwood’s case appears to us to be very much more so -- "You shall be first flogged and then hung," -- what! -- corporally punish a man -- inflict such wounds as shall prevent his mind from being calm, and then in the turbulent of mental agony -- when he can scarcely think of worldly affairs, much less of spiritual -- whirl him into eternity, to meet his Lord and Saviour, without being prepared by the solace of calm and penitent prayer? Horrible, most horrible. -- Colonial Times. Thus far for the Colonial Times; and from our heart’s inmost recess, we add, that such a monstrous event was never known in any British Colony. -- Governor Wall was a tyrant -- Picton[*] was a torturer, and of course their Magistrates were like themselves; but we never heard of any of these Justices sending a man to torture first; and then sending him to death afterwards, for the same offence! This was a horror reserved for the People of Van Diemen’s Land.

Notes

[1] The convict Joseph Greenwood had stabbed a constable while trying to escape from custody and had been sentenced by Magistrate Thomas Mason to a flogging before sending him to trial in the Supreme Court. Governor Arthur privately reprimanded Mason, A.G.L. Shaw, Sir George Arthur Bart, 1784-1854, Melbourne: Melbourne University Press, 1980, pp. 165-6.The reference to Sudds and Thompson is to the treatment of two prisoners in New South Wales, leading to great hostility towards Governor Darling. See the Subject Index to the New South Wales cases, under "Sudds and Thompson case".

[*] [Footnote in newspaper:] Picton was administering the Spanish law, the old Spanish Law, which had sanctioned torture.