Enever v R

3 CLR 969

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(Judgment by: Griffith CJ)

Enever
v R

Court:

Judges:
Griffith CJBarton 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

Hearing date: 20 February 1906; 21 February 1906; 22 February 1906
Judgment date: 12 March 1906

Melbourne

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Judgment by:
Griffith CJ

This was an action brought by the appellant against the Crown, as represented by the Executive Government of Tasmania, for damages sustained by him in consequence of his wrongful arrest by a constable of police. The Tasmanian Crown Redress Act 1891, (55 Vict. No. 24) provides (s 4) that "any person having or deeming himself to have any just claim against Her Majesty in respect of any contract entered into on behalf of Her Majesty by or under the authority of the Government of Tasmania, or in respect of any act or omission, neglect or default of any officer, agent or servant of the Government of Tasmania which would be the ground of an action at law or suit in equitybetween subject and subject, may file in any Court of competent jurisdiction of Tasmania a supplication setting forth the particulars of such claim, and the Court in which such supplication is filed is hereby empowered to hear and determine such claim in manner hereinafter provided." Dodds C.J. and McIntyre J. were of opinion that the action did not come within the terms of this section; Clark J. was of the contrary opinion.

By the Police Act 1865, (29 Vict. No. 10), s 197, it is provided that a constable may take into custody without warrant and forthwith take before a justice "any person who within his view commits any of the following offences ... every person who disturbs the public peace." It is not disputed by the respondent that the arrest complained of was wrongful, the appellant having been the victim and not the aggressor in the disturbance of the peace which took place within the constable's view. The constable was, therefore, personally liable for his wrongful act; but the question is whether under the terms of the Crown Redress Act the Government are responsible for it. It is not contended by the appellant that the Statute imposes any liability upon the Government except in cases where the relationship between the officer and the Government is such that, if a like relationship existed between subject and subject, the maxim respondeat superior would apply. It is necessary, therefore, to consider the nature of the office of a constable, and what, according to the law of Tasmania, is the nature of the relationship between a constable and the Executive Government by whom he is appointed.

At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown. The appointment to the office was made in various ways, and often by election. In later times the mode of appointment came to be regulated for the most part by Statute, and the power of appointment was vested in specified authorities, such as municipal authorities or justices. But it never seems to have been thought that a change in the mode of appointment made any difference in the nature or duties of the office, except so far as might be enacted by the particular Statute. Again, at common law constables had large powers necessarily incident to the discharge of their functions as peace officers orconservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions, of which the 179th section of the Police Act is an instance. But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed. In Stanbury v Exeter Corporation ^[F1] , at p. 841, Lord Alverston C.J., referring to the subject, said:"This case ... is, I think, very analogous to that of police and other officers, appointed by a corporation, who have statutory duties to perform, where, although they owe a duty to the corporation appointing them, there is no ground for contending that the corporation are responsible for their negligent acts." In the same case Wills J. said ^[F2] : "This case is, 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." The learned Judge went on to say:"I think that the reason why that is so, although it is not stated in any English authorities, is expressed in the passage quoted from Beven on Negligence, 2nd ed., vol. 1, pp. 388-9. If the duties to be performed by the officers appointed are of a public nature and have no particular local characteristics, then they are really a branch of the public administration for purposes of general utility and security which affect the whole Kingdom; and if that be the nature of the duties to be performed, it does not seem unreasonable that the corporation who appoint the officer should not be responsible for acts of negligence or misfeasance on his part." Whether this be the reason for the rule or not, I think that the passage which I have quoted contains an accurate statement of the law, and that the rule was firmly established that the authorities by whom a constable wasappointed were not at common law liable for his acts, whether of omission or commission.

A consideration of the general doctrine of the law of agency as applied to the case of a constable leads to the same conclusion. In considering whether a master is liable for the acts of his servant the test is, as stated by Crompton J., in Sadler v Henlock ^[F3] , quoted with approval by Bowen L.J., in Donovan v Laing, Wharton, and Down Construction Syndicate ^[F4] , at p. 634, whether the party sought to be made responsible retained the power of controlling the act. Now, the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion, and must be reasonable to him. If he arrests in a case in which the arrest may be made on view, the view must be his view, not that of someone else. Moreover, his powers being conferred by law, they are definite and limited, and there can be no suggestion of holding him out as a person possessed of greater authority than the law confers upon him. I am disposed to think that this is a sounder basis for the rule of the immunity of those who appoint constables for their acts than that suggested by Wills J. A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.

The authority of the master of a ship at sea to maintain order is analogous. He derives his authority from his office, to which he is appointed by the owners of the ship. But the authority which he exercises in this respect is, I conceive, an original and personal, and not a delegated, authority. And I do not know of any instance in which it has been sought to hold the owners responsible for an excess by the master, though there are several reported cases of actions against masters.

It has always been assumed that the common law, so far as it regulated the powers and duties of peace officers for the preservation of the peace and the apprehension of offenders, was introduced into Australia on settlement. On the first settlement, however, the appointment of peace officers, as of all other officers, was of necessity vested in the representative of the Crown. At that time the maxim respondeat superior did not apply to the Crown, so that it was not important to consider whether the circumstance that the appointment was made by an authority representing the whole community would make any difference as to the responsibility of the appointor for the acts of the appointee. In may be suggested that, if the reason given by Wills J. for the rule of non-liability is the true one, it would no longer apply when once the maxim just referred to was by the Crown Redress Act made applicable to the Crown. I have already sufficiently dealt with this suggestion, and will now proceed with the history of the law of Tasmania as to the appointment of constables. Up to 1865 the appointment continued to be made by the Executive Government, but by the Act 29 Vict. No. 9, the appointment and control of constables was vested in municipal authorities where they existed, being however retained, where no such authorities were in existence, by the Government. The law continued in this state until 1898, when the Police Regulation Act (62 Vict. No. 48) was passed, by which the appointment and control of constables was vested in an officer called the Commissioner of Police, who was himself appointed by the Executive Government. During the period from 1865 to 1898 there can, I think, be no doubt that the municipal authorities were not liable for the acts of constables appointed by them. But, if the argument for the appellant is sound, the liability of the Government for the acts of the non-municipal police attached as soon as the Crown Redress Act became law in 1891. This argument, if accepted, leads to the singular result that the applicability of the maxim respondent superior to the case of constables then depended, not upon the nature of the office or of the relationship between the appointor and the appointee, but upon the personality of the employer, with the still more singular consequence that the maxim applied as against the Crown only, and not as against other authorities exercising a precisely similar power under the same Statute. This would in effect be to construe the Act of 1891 not merely as abrogating a rule conferring a special immunity upon the Crown, but as creating a new kind of liability which hadnever existed as against any subject exercising similar powers. This is not likely to have been the intention of the legislature. In my opinion, both the Act of 1865 and the Act of 1898 were intended merely to deal with the appointment and disciplinary control of constables, leaving the nature of their powers and duties and the responsibility for their actions to be governed by the common law as modified by the Statutes (if any) dealing with that subject. It was not, indeed, contended for the appellant that he could rest his case upon the later Act.

I am, therefore, of opinion that the case does not fall within the governing words of s 4 of the Crown Redress Act 1891: "any person having ... any just claim or demand ... in respect of any act ... or default of any officer, agent, or servant of the Government of Tasmania which would be the ground of an action at law ... between subject and subject," since the acts of commission or omission of a constable never were the ground of an action at law as between subject and subject against any person but the constable himself, or some other person who had personally directed the act complained of. For these reasons I am of opinion that the appellant's case fails.

In addition to the arguments which I have so far dealt with, counsel for the respondent relied upon the authority of the case of Tobin v Regina ^[F5] . That was an action against the Crown for loss sustained by reason of the wrongful seizure of a vessel by the commander of a ship of war employed in the suppression of the slave trade, and it was held (1) That the commander in seizing the vessel was not acting in obedience to a command of Her Majesty, but in the supposed performance of a duty imposed upon him by Act of Parliament; (2) That if he was an agent employed by the Crown, he was not acting within the scope of his authority in seizing a ship not engaged in the slave trade, and for that reason did not make his principal liable for a seizure made without authority from that principal; and (3) That a Petition of Right would not lie to recover unliquidated damages for a tort. The third ground is no longer the law of Tasmania. Clark J. thought that, this ground being of itself sufficient to justify the decision, the reasons given by Erle C.J. in deliveringthe judgment of the Court might be regarded as obiter dicta . I cannot so regard them. The case was decided more than forty years ago by Judges of great eminence, and even if I had a difficulty in following their reasoning, I should have much hesitation in dissenting from their conclusions. For the purpose of construing the Statutes which have been passed in the Australian colonies for extending the right of redress for wrongful acts committed by officers of Government, I think it is proper to refer to the pronouncements that had been previously made by the English Courts as to questions of agency as between the Crown and its officers, and that it should be held that prima facie it was not intended to create a responsibility in respect of the acts of officers under circumstances which, according to the decisions, did not constitute them agents for the Crown. In my opinion, the Court ought to follow Tobin's Case ^[F6] , which is not in principle distinguishable from the present.

The railway cases relied on by the appellant are in my opinion inapplicable. In all of them the question was one of evidence whether the fact of actual delegation of authority by the defendants to the persons by whom the wrongful act complained of had been committed was proved. In the present case it was not attempted to be proved that any delegation had been made in point of fact, other than that alleged to arise from the nature of the constable's office. If a constable commits a wrongful act by direction of a superior officer, that officer is no doubt personally responsible. Whether the Government would also be responsible under the Crown Redress Act would depend upon other circumstances which do not exist in the present case.

For all these reasons I am of opinion that the judgment of the majority of the Supreme Court was right, and that the appeal should be dismissed.