Enever
v R

Judges: Griffith CJ
Barton J

O'Connor J

Subject References:
Criminal law
Wrongful arrest
Police powers with respect to arrest
Crown
Liability
Wrongful arrest
Nature of police crown relationship
Employment or agency

Legislative References:
Police Act 1865 29 Vict No 10 - The Act
Police Act 1898 62 Vict No 48 - The Act
Crown Redress Act 1891 55 Vict No 24 - The Act

Melbourne

Judgment by:
O'Connor J

There is no difficulty in the interpretation of s 4 of the Crown Redress Act 1891. It is true that the word "Government" is sometimes used to describe the whole power of a community, legislative and judicial as well as executive, but to my mind it is absolutely clear that in the section under consideration it has been used in the sense explained in the passage from Anson on the Constitution (3rd ed., vol. I., p. 39), cited by Mr. Dobbie. In other words, it has been used in its ordinary sense, and means the Executive Government of Tasmania. As to the remainder of the section it was properly admitted by the appellant's counsel that the Crown Redress Act 1891 imposes no greater liability upon the Government for the acts or defaults of its servants than would attach to an individual employer under like circumstances. In order, therefore, to test the liability ofthe Government in this case the ordinary law of master and servant must be applied. In a general sense, no doubt, the constable was the servant of the Government at the time when the trespass complained of was committed. He held his office under the Police Regulation Act 1898, which gave the Government power to employ, to pay, and to dismiss him. He was probably required to perform many duties besides those imposed upon a constable at common law or by Statute, and in the performance of such duties he would be the servant of the Government, and they would be directly liable for any neglect or default committed by him in the course of his employment; but the question for our decision is was he the servant of the Government in the performance of the particular duty of making the arrest which is the subject of this action. The test of liability in this as in every case is, was the servant in doing the particular act complained of subject to the control of the master, as stated by Bowen L.J. in Donovan v Laing, Wharton, and Down Construction Syndicate ^[F22] , at pp. 633-4. The rule is well explained by Erle C.J. in Tobin v The Queen ^[F23] , at p. 350. "The liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it." It is not contended here that there were any direct instructions from the Government to make this arrest. It was made by the constable in the ordinary course of his duty as constable under the authority conferred on a constable by s 179 of the Police Government Act (20 Vict. No. 10). The Act is one for the preservation of order, decency, and public health in municipalities and towns; that section makes the disturbance of the public peace under certain circumstances an offence punishable on summary conviction, and gives authority to arrest for the offence in the following words:"And any Constable or Public Officer may take into custody without warrant and forthwith convey before a justice any person who within his view commits any such offence." The liability of the Government, therefore, did not arise directly, but it was sought to be implied from the general relation of master and servant between the Government and the constable created by the Police Regulation Act 1898 under which the constable served. It becomes necessary, then, to considerwhat is the relation between the Government and a constable serving the Government under the Police Regulation Act 1898, when the constable is using the power conferred on him by Statute for the preservation of the peace. It will be noted that the constable by his oath under the Police Regulation Act 1898 swears that he "will well and truly serve ... the Queen in the office of constable for the Colony of Tasmania" and that he will to the best of his power etc ... "cause the peace to be kept and preserve and prevent all offences against the persons and properties of Her Majesty's subjects" and will hold the "said office" to the best of his ability while he continues to "discharge all the duties thereof faithfully according to law." The "office of constable" is still further recognized in s 15, which provides that every member of the police force appointed under the authority of the Act shall have such powers and privileges, and be liable to all such duties as any constable duly appointed now has or hereafter may have, either by the common law or by virtue of an Act of Parliament now or hereafter to be in force in Tasmania. Whilst, by the joint effect of ss. 31 and 62, any member of the police force who is guilty of misconduct, neglect, or violation of duty in his office may be punished by fine on summary conviction, and, as at common law, he may be proceeded against for such offences by any member of the public who may complain against him. By s 18 it is provided that a person taking the oath shall be deemed "to have entered into a written agreement with and be thereby bound to serve Her Majesty as a member of the police force in whatsoever capacity he may be at any time thereafter required to serve" at the current rate of pay for the rank to which he may be appointed.

The common law has always recognized the office of constable. The duty of locally preserving the peace in England from the earliest times has been placed upon local bodies, upon the decennaries and hundreds in the time of Alfred, and later upon different local bodies, in more modern times upon the Boroughs and Municipalities. The recognized officers for the preservation of the peace in these localities have been the constable or constables chosen, elected, or appointed by the local bodies as by law provided. The power to arrest for breach of the peace orother offences is given by the common law, not to the local bodies responsible for keeping the peace, but to their officer the constable, who in the words of Bac. Abr. ("Constable" Chapter C.) "is not only empowered as all private persons are to part an affray in his presence, but is bound at his peril to endeavour it." In another passage of the same work the constable's duty is stated as follows:"And it is said that if he sees persons actually engaged in an affray whether the violence were done or offered to another or even to himself or see them upon the very point of entering on an affray; as where one threaten to beat another ... he may either carry the offender before a Justice of the Peace in order to his finding sureties for the peace," etc Statutes giving power to arrest have followed the same principle. The power to arrest is given not to the local body, nor the municipality, nor, in cases where a Government Police Force exists, to the Government-but to a constable, that is to a person who for the time being holds the office of constable. It is in this form that the power to arrest without warrant is given under s 179 of the Police Government Act which I have quoted-not to the Municipality, which at the time when that Act was passed employed and controlled the police in towns, but a constable of police, the holder of an office, which by law carried with it an obligation to the public to discharge its duties faithfully and efficiently, and a liability to punishment on summary conviction at the suit of any member of the public if those duties were violated or neglected. The Police Regulation Act 1898 makes it clear from the sections I have cited that the office of constable, with its duties, obligations, and responsibilities directly to the public, was intended to be recognized under the Act just as it was recognized by the former Act, the Police Regulation Act 1865, under which the municipality, instead of the Government, controlled the police in towns. I can see no difference between the two Acts in their recognition of the office of constable with all its direct responsibilities and liabilities to the public. It is abundantly clear that the municipality could not have been held liable for this arrest if it had occurred while the Police Regulation Act 1865 was in force. That a municipality would not, under such circumstances, be liable appears from thejudgment of Wills J. in Stanbury v Exeter Corporation ^[F24] , at p. 842: "This case is," he says, "to my mind, almost exactly analogous to the case of a police officer. In all boroughs the watch committee by Statute has to appoint, control, and remove the police officers, and nobody has ever heard of a corporation being made liable for the negligence of a police officer in the performance of his duties." In that case the servant for whose act it was sought to make the defendant corporation liable was not a police officer. He was an officer of the corporation appointed by them to carry out certain duties for enforcement of the Diseases of Animals Act 1894, which Act directed the enforcement of its provisions by local authorities. The power to do the act complained of was given by the Statute, not to the local authority, the Corporation of Exeter, but to "the Inspector of the local authority or other officer appointed by them in that behalf." The same principle was held by Wills J. to apply as if the act complained of had been done by a constable in the discharge of his duties as constable. Lord Alverstone C.J. ^[F25] , puts the position in the following words: "To adopt the language of the county court judge, the inspector was not acting in performance of duties imposed by Statute upon the defendants, or, in other words, was not performing as their agent duties imposed upon them and delegated by them to him, but was acting in discharge of duties imposed on him as `inspector by the order of the Board of Agriculture.' " The principle thus applied was stated in a more general form by Erle C.J. in Tobin v The Queen ^[F26] , at p. 351, as follows:"When the duty to be performed is imposed by law, and not by will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment." That principle is, to my mind, clearly applicable to the facts under consideration. In this case the duty of arrest in the particular instance was imposed upon the constable by the law, and not by will of the Government. For the proper discharge of that duty he was responsible to the public in the first instance, and if the Government had taken upon themselves to interfere with him in the discharge of that duty, it would have been no answer to a prosecutionby a member of the public for neglect of duty that he had been commanded by the Government to abstain from carrying it out. The appellant's counsel relied upon Goff v Great Northern Railway Co ^[F27] , and Moore v Metropolitan Railway Co ^[F28] , in which cases it was established that where powers of arrest are given to servants of railway companies, the companies themselves are liable for the improper exercise of those powers. But those cases are clearly distinguishable. By the express words of the Railway Clauses Act, s 104, power is given to the railway servants to arrest "on behalf of the Company." Agency is thus created on the face of the authority to arrest; power to arrest is in reality given to the company to be exercised on their behalf by their servants. In this case the authority to arrest is not conferred on the Government, nor is it to be exercised on behalf of the Government, it is conferred on the constable as the holder of a recognized public office to which well known duties and responsibilities are attached. He made the arrest in the discharge of his duty as holder of the office of constable, and not by the direction or under the control of the Government. His act was thus not the act of the Government by its servant, but was his own act, done in the exercise of his duty as constable, and in the doing of it the relation of master and servant between him and the Government cannot be implied. Applying therefore the ordinary principles regulating the law of master and servant to the relation between the Government of Tasmania and the constable in regard to this arrest, I am of opinion that the Government cannot be made liable for the act of the constable. For these reasons I think that the decision of the majority of the Supreme Court of Tasmania was right, and the appeal must be dismissed.