The spectators at the Brisbane Police Office, on Tuesday last, witnessed a singular exhibition of a respectable man, (a resident in the western suburbs) being brought up before that august Bench, under warrant, for using offensive language in the hearing of one of our majestic Beaks, (the usual process of issuing a summons to appear and answer the complaint being dispensed with.)
The high crime laid to the charge of the delinquent being nothing less than calling out quack—quack—quack— as the dog-cart of dignified J.P. passed through the town. I have annexed the report of this case, simply because I should like readers of the Darling Downs Gazette, to be aware of this fact that there, are other places besides bush Benches where these “Men of Mutton” would like to ride rough-shod over the peaceable town-folk.
Darling Downs Gazette and General Advertiser (Toowoomba, Qld. : 1858 – 1880), Thursday 30 September 1858, page 4
Moses Adsett surrendered to his recognizances having on the previous day been arrested and held to bail on a charge of using insulting language towards Mr. J. F. McDougall, J.P., of Milton, with intent to provoke that gentleman to commit a breach of the peace. Mr. Lilley appeared for the defendant.
The complainant stated that on the previous Saturday, whilst driving his carriage with his family down Queen-street, he passed the defendant Adsett, who shouted after him, “Quack!” “quack!” “quack!” The complainant wished to enter into an explanation as to some previous grievances, but Mr. Lilley objected to anything being given in evidence that had not occurred on the day mentioned in the information. Mr. McDougall, as a justice of the peace, ought to know that he was not at liberty to depart from that course. The Bench told Mr. McDougall he must confine his statement to that day.
On cross-examination the complainant said he was driving quickly past. His family were with him. He was sure the words were used, they were too offensive to him to be mistaken. They had been used on previous occasions.
Mr. Lilley, in defence, urged it as a strong fact against the complainant that although he had his family with him, he had not called a single witness to substantiate his statement. He should call witnesses to prove that the words were never used, but even if he admitted that they were, there was surely nothing in them that could excite a reasonable man, a justice of the peace, to commit a breach of the peace. The Magistrates would surely not enforce a highly penal statute for every trifling word spoken in anger. Mr. McDougall’s family, seated quietly in the carriage, had a better opportunity of hearing the words if they had been used than the complainant who was driving. It was a mistake on the part of Mr. McDougall, he should show that the words were never used. The tendency of the words must be judged from the effect they produced on the complainant’s mind.
Now, it was clear he had not stopped to fight, or commit a breach of the peace, had never challenged the defendant in any way nor asked him what he meant, had never shown that he had even heard the words but had driven right on. He thought the defendant had reason to complain of being dragged away from his business under a warrant, when a summons would have answered the purpose.
Mr. Brown: The Attorney-General has given his opinion, and it has been decided in this Court, that persons cannot be summoned under the Vagrant Act.
Mr. Lilley: Sir John Jervis’s Act gives the Magistrate a discretion to summon if he likes.
Mr. Brown: The Vagrant Act was passed after that.
Mr. Lilley: The Vagrant Act is also discretionary, it says, “It shall be lawful” for the Magistrate to issue his warrant, it is discretionary and not peremptory. And the general law of England is, that a Magistrate may summon where he has power to issue his warrant, unless the statute is peremptory. Where a man, like the defendant, has land and effects in the neighbourhood, he ought not to be arrested on a trifling charge.
The Bench said it was the decision of the Attorney-General and they must be guided by it. Mr. Lilley: Of course, the Magistrates have power to issue their warrant if they like, but it is a stringent exercise of it. It matters little, how over, to discuss it now. I shall shew that the words were never used by the defendant.
Mr. Henry Payne was then called, and he deposed that he was at Adsett’s elbow when Mr. McDougall passed in his carriage, the wheels of the vehicle coming very close to Ad-sett’s horse. The defendant went to the horse’s head and said, ” Come Peg—Come Peg—that’s close shaving.” No other words were used, and if defendant had said “quack-quack-quack,” he must have heard them.
Mr. McDougall cross-examined the witness as to his being “a great friend” or “partner” of the defendant, but Mr. Payne denied it. The Police Magistrate made several anxious enquiries relative to the state of the witness’s hearing, but the witness could not be persuaded that he was deaf, or even partially so, or that he was other than “too sharp in hearing for some people.”
The Bench, having considered the evidence, said they had no alternative but to dismiss the case.
Moreton Bay Courier (Brisbane, Qld.: 1846 – 1861), Wednesday 22 September 1858, page 2
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