Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369 (13 December 1937)

The appellant and two companions were walking through Centennial Park and one or other of the party plucked pansies and made off with them. The respondent, who was a ranger of the park and a special constable appointed under the Police Offences Act 1901-1936, noticed them and took them to the superintendent's house. Later all three were charged under the Crimes Act, sec. 520, with stealing the pansies. The appellant was discharged. He then commenced an action in the Supreme Court against the respondent charging him with (i.) wrongful arrest, (ii.) assault, (iii.) malicious prosecution, and claiming no less than £1,000 damages.

The action was commenced within six months but more than two months after the grievances alleged. The respondent by his pleas claimed the protection afforded by the Police Offences Act 1901-1936, sec. 114 (1): "All actions and prosecutions to be commenced against any person for anything done in pursuance of this Act shall be commenced within two months after the act was committed." The action was tried before Maxwell J. with a jury. The learned judge directed a nonsuit and his decision was affirmed on appeal. The object of a provision such as that set forth is to protect persons acting illegally but in supposed pursuance of and with a bona fide intention of discharging their duty (Theobald v. Crichmore[1]). The defendant is entitled to protection if he honestly believes in the existence of a state of facts which, if they had existed, would have justified him doing the acts complained of. Some facts must exist such as might give rise to an honest belief but it is not necessary that the belief should be reasonable (Chamberlain v. King[2]). It was contended that the question of the honesty of the defendant's belief in this case was a question of fact for the jury. But ample facts were proved on which the defendant might honestly believe that the appellant and his companions were stealing pansies and not the slightest evidence was adduced that he did not so believe. It would have been wrong in such circumstances to leave the question of the honesty of the defendant's belief to the jury.

It is next said that the defendant is not entitled to the protection of the section because he was not acting in pursuance of the Act. The defendant was a special constable appointed under the Police Offences Act 1901, No. 5, Part IV. And sec. 103 provides that every special constable appointed under that Act shall have, exercise and enjoy all such powers, authorities, advantages and immunities and be liable to all such duties and responsibilities as any constable duly appointed now has by virtue of the common law or of any Act or Imperial Act.

The Crimes Act 1900-1929 N.S.W., sec. 352, enacts:—"(1) Any constable or other person may without warrant apprehend—(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, ... and take him, and any property found upon him, before a justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom he, with reasonable cause, suspects of having committed any such offence or crime." The words in sec. 2 (a) "offence or" were added by the Act, 1924, No. 10, to meet the decision of this court in Nolan v. Clifford[3].

The main contention for the appellant was that the grievances complained of were not done in pursuance of the Police Offences Act 1901-1936. It was conceded that the respondent was appointed under that Act but it was argued that the acts he did were not in pursuance of that Act at all, but of the Crimes Act 1901-1929. The argument is fallacious, for the words of sec. 103 of the Police Offences Act explicitly confer upon special constables the powers and authorities of constables and thus incorporate them by reference into the Police Offences Act itself.

The cases of Shatwell v. Hall[4] and McLaughlin v. Fosbery[5] were relied upon in support of the argument and Hazeldine v. Grove[6] and Mellor v. Leather[7] as destructive of it. But each case turns upon the particular statute there in question. There is no doubt, in my opinion, that the right construction of the Police Offences Act is as already indicated and contrary to that contended for by the appellant.

The next argument was that the respondent could not rely upon the provisions contained in the Crimes Act, sec. 352 (2) (a), because a constable was not authorized to apprehend without warrant any person for the offence of stealing flowers. It will be remembered that sec. 103 of the Police Offences Act 1901 refers to the powers and authorities a constable "now has," and the words "or offence" were only added to the Crimes Act 1900-1929 in the year 1924. But it is unnecessary to discuss the matter, for the respondent can justify equally well under sec. 352 (1) (a), which is incorporated in the Police Offences Act by sec. 103. He was acting pursuant to the latter Act if he had a bona fide belief in the existence of facts which if existing would have justified him in so acting. He saw, as he believed, the appellant and his companions both in the act of stealing pansies and immediately after they had committed that offence. No evidence was adduced fit to be submitted to a jury that he did not honestly so believe.

Lastly it was contended that the respondent was not entitled to greater protection than that afforded to constables by sec. 563 of the Crimes Act, which enacts: "All actions against any person, for anything done, or reasonably supposed to have been done in pursuance of this Act, shall be commenced within six months after the fact committed."

It may be doubted whether the defendant did anything in pursuance of that Act. It is unnecessary to determine this point, for he acted in pursuance of the Police Offences Act and that explicitly protects him against action and prosecution for anything done in pursuance of that Act unless commenced within two months after the act was committed.

This appeal turns upon the question whether the defendant is entitled to the protection of sec. 114 of the Police Offences Act 1901, as amended, which enacts that all prosecutions and actions to be commenced against any person for anything done in pursuance of that Act shall be commenced within two months after the act was committed. He is a park ranger who has been nominated and appointed a special constable by a magistrate or magistrates at the request of his employers under sec. 101 (1A) of the Police Offences Act. By sec. 103, a special constable appointed under the Act shall have, exercise and enjoy all such powers, authorities, advantages and immunities and be liable to all such duties and responsibilities as any constable duly appointed had, at all events when the Act was passed, at common law or under statute.

The defendant is sued on causes of action arising out of his apprehending the plaintiff with two other persons on a charge of stealing plants from the park of which he is ranger. The charge against the plaintiff was dismissed. The offence is created under sec. 520 of the Crimes Act 1900, as amended, which makes the offender liable on summary conviction to payment for the damage done and to a fine of £20, or to six months' imprisonment. Under sec. 352 of the same Act, a constable is authorized without warrant to apprehend any person whom he with reasonable cause suspects of having committed offences of a class within which that in question falls.

The plaintiff contends that, if the defendant acted in pursuance of any Act it was not the Police Offences Act but the Crimes Act, which by sec. 563 provides a limitation of six months, and not two, as does the former Act. In fact he brought his action less than six months but more than two months after the grievances of which he complains. His first reason for this contention is that under the Police Offences Act the defendant is merely established in the office of a special constable and placed in the same situation as a constable. His powers and duties, it is said, are annexed to the office but arise from various statutory and other sources, and, in exercising them, he acts "in pursuance of" or "in execution of" the enactment by which they are conferred or imposed on constables. This view derives some support from Shatwell v. Hall[8], which was cited in support of the plaintiff's contention. There constables appointed under a special local Act were held not entitled to rely upon a protective provision therein in answer to an action brought against them for what they had done in executing a warrant as constables. Lord Abinger C.B. said: "Now the action is not brought for anything done by them directly in execution of any of the powers of the local Act of Parliament; but it was said that it was brought against them for something which they did, and could only do, by the authority of the Act. It is true they were appointed constables by virtue of the Act of Parliament, which gives them all the authority of constables; but the act they did was not in pursuance of the Act of Parliament at all, and they were not entitled to notice, in respect thereof, any more than any other constable would be"[9]. This case was cited with apparent approval by Griffith C.J. in McLaughlin v. Fosbery[10]. But we find that the correctness of the decision was attacked by counsel before the Court of Queen's Bench, and that court distinguished it to the point of denying its authority. In Mellor v. Leather[11] Lord Campbell C.J. said that, if it was found difficult to reconcile the judgment with that of the Court of Queen's Bench in the almost contemporaneous case of Hazeldine v. Grove[12], it might be observed that the judgment of the Court of Exchequer in Shatwell v. Hall[13] was given upon refusing a rule, while that of the Court of Queen's Bench in the later case was given after full argument by counsel on both sides and is, besides, posterior in point of date.

A study of Mellor v. Leather[14] shows that it is a strong authority against the plaintiff's contention. The case arose under sec. 76 of the Municipal Corporations Act 1835 (5 & 6 Will. IV. c. 76), whereby watch committees were directed to appoint constables who were given all such powers and privileges and made liable to all such duties and responsibilities as any constable duly appointed then had or thereafter might have within his constablewick at common law or by statute. Doubtless this provision is the ultimate source of the form of sec. 103 of the Police Offences Act. A constable so appointed took possession of a pony in respect of which a charge of larceny had been laid. The charge failed and he was sued in replevin; he pleaded the general issue and under that plea sought to justify as a constable. This he could only do if some statute gave him the privilege of pleading the general issue and giving the special matter in evidence under that plea. The only provision doing so which could apply to his case was one contained in the Municipal Corporations Act under which he had been appointed a constable. By sec. 133 of that Act, in all actions against any person for anything done in pursuance of that Act, the defendant might plead the general issue and give the special matter in evidence thereunder. The question, therefore, was whether, in assuming to exercise a power which he believed belonged to a constable, the defendant was acting in pursuance of the Act containing the provisions under which he derived that office. Lord Campbell C.J. said: "The only authority under which the defendant Clough acted as a constable was that given by stat. 5 & 6 Will. 4 c. 76, s. 76; whatever power, privilege or responsibility he had were wholly under that Act. It appears to us that, when he was acting as a constable in this particular case, he was acting in pursuance of the power given to him by that statute, and that he is entitled to the protection given by sect. 133 to all persons acting in the execution of this Act"[15]. In our opinion this reasoning applies to sec. 114 of the Police Offences Act considered in relation to secs. 103 and 101 (1A). In assuming to apprehend the plaintiff in the exercise of an authority supposed to exist in him as a special constable, the defendant acted in the intended execution of powers flowing, so far as he was concerned, directly from sec. 103. If the facts had been as he alleged, his act would have been authorized; and thus he was acting in pursuance of the Police Offences Act, unless he had no bona fide belief in the facts he professed to rely upon, a matter which falls within the fourth ground of the appellant's argument.

The second ground upon which the plaintiff rests his contention that sec. 114 does not apply is that one of the immunities of a constable conferred by sec. 103 upon a special constable is freedom from suit after the expiration of times limited by statutory provisions like sec. 563 of the Crimes Act and that such provisions accordingly apply to the exclusion of sec. 114 of the Police Offences Act. The first step in this reasoning may be valid, but the second appears to us to be fallacious. Even if such provisions as sec. 563 of the Crimes Act may be drawn in, so to speak, by sec. 103, this does not exclude the application of sec. 114 to cases falling within its express terms.

The third reason given for the plaintiff's contention lies in the limitation expressed by the word "now" in sec. 103. This word seems to limit the powers &c. of constables which are given to special constables by that section to the powers &c. existing at the commencement of the Police Offences Act. For some reason the words "or may hereafter have," which occur in sec. 76 of the Municipal Corporations Act 1835 have been dropped in sec. 103 of the Police Offences Act. It appears that the power of arresting on reasonable suspicion of an offence like that now in question was given to constables by sec. 352 (2) of the Crimes Act after the commencement of the Police Offences Act. At that time reasonable suspicion of such an offence having been committed was not enough to justify apprehension by a constable without warrant. He was empowered to apprehend any person in the act of committing, or immediately after having committed, such an offence (sec. 352 (1)). But in that case the constable's justification depended on his prisoner's actual guilt.

In the present case, however, the defendant took the plaintiff into custody on the footing that he had just been a party to the commission of the offence of stealing plants. If the defendant honestly intended to put the law in motion and he really believed in a state of facts which, if it existed, would have justified his act, or he intended to act according to the duties of his office as a special constable, then it would be a thing done in pursuance of the statute, although it turned out that the plaintiff was not in fact guilty (See Hermann v. Seneschal[16]; Selmes v. Judge[17]). When a defendant is found purporting thus to execute what is actually a statutory power, the burden rests upon the plaintiff of proving that he was not actuated by an honest desire to do his duty: that he was not acting in the intended, but in the pretended, execution of his functions (Cf. G. Scammel & Nephew Ltd. v. Hurley[18]). Thus the question whether sec. 103 did or did not operate to give to the defendant as a special constable a power of apprehension applicable to the particular offence affording him a substantive justification, notwithstanding the plaintiff's actual innocence, seems to us not to be a decisive matter. The question is not whether what the defendant did was justified in law but whether it was done in pursuance of the Police Offences Act, and this means in purported or assumed pursuance thereof. It is plain that he acted in the assertion of powers he supposed that he possessed in virtue of his office of special constable. It is equally clear that if in fact the plaintiff had been guilty of the offence he might then and there have been apprehended by the defendant. Whether or no a reasonable suspicion would afford a justification, it remains true that the defendant is entitled to the protection of the limitation imposed by sec. 114 of the Police Offences Act.

The fourth and last ground for contending that the plaintiff's action is not subject to this limitation is that the defendant did not act bona fide in the assertion of a power that he believed belonged to him as a special constable. The nature of this answer to such a provision as sec. 114 is dealt with by Lord Finlay in Newell v. Starkie[19], and by Scrutton L.J. in G. Scammell & Nephew Ltd. v. Hurley[20]. The burden of proving an indirect motive or mala fides lies upon the plaintiff, and, in our opinion, he has not discharged it. We think that there is no evidence fit to be submitted to a jury in support of the allegation.

It follows that the nonsuit was right and that the appeal should be dismissed with costs.

[1] (1818) 1 B. & Ald. 227; 106 E.R. 83.

[2] (1871) L.R. 6 C.P. 474.

[3] [1904] HCA 15; (1904) 1 C.L.R. 429.

[4] [1842] EngR 1030; (1842) 10 M. & W. 523; 152 E.R. 578.

[5] [1904] HCA 55; (1904) 1 C.L.R. 546.

[6] [1842] EngR 1133; (1842) 3 Q.B. 997; 114 E.R. 791.

[7] [1853] EngR 16; (1853) 1 E. & B. 619; 118 E.R. 569.

[8] [1842] EngR 1030; (1842) 10 M. & W. 523; 152 E.R. 578; 12 L.J. Ex. 74.

[9] (1842) 10 M. & W., at p. 526; 152 E.R., at p. 579.

[10] (1904) 1 C.L.R., at p. 565.

[11] [1853] EngR 16; (1853) 22 L J. M.C. 76; 1 E. & B. 619; 118 E.R. 569.

[12] [1842] EngR 1133; (1842) 3 Q.B. 997; 114 E.R. 791; 12 L.J. M.C. 10.

[13] [1842] EngR 1030; (1842) 10 M. & W. 523; 152 E.R. 578; 12 L.J. Ex. 74.

[14] [1853] EngR 16; (1853) 22 L.J. M.C. 76; 1 E. & B. 619; 118 E.R. 569.

[15] (1853) 1 E. & B., at p. 626; 118 E.R., at p. 572.

[16] [1862] EngR 720; (1862) 13 C.B. N.S. 392, at pp. 402, 404; [1862] EngR 720; 143 E.R. 156, at pp. 160, 161.

[17] (1871) L.R. 6 Q.B., at p. 728.

[18] (1929) 1 K.B., at pp. 427, 429.

[19] (1919) 89 L.J. P.C. 1, at p. 6.

[20] (1929) 1 K.B., at p. 428.

High Court of Australia

Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369 (13 December 1937)

HIGH COURT OF AUSTRALIA