ITM847303 Colonial Secretary's Inwards Correspondence - 1889 No.1701-1999

Colonial Secretary's Office

Inwards correspondence

01 jan 1889 - 31 Dec 1889

Item ID 847303

1701 - 1999

Pages copied in original order

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Digitised at Queensland State Archives, Brisbane, Australia

Queensland State Archives Department of Science, Information Technology, Innovation and the Arts

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[stamp] [illegible] QUEENSL[AND] 22 [illegible] 01701 [tick]

[text] M Silberman

Brisbane 20^th Feb^ry 1888.

To

The Hon:

The Chief Secretary

Brisbane

Applying for compensation in re his being wrongfully arrested, assaulted tc by Serg^t Walsh at Bowen

{Previous 88 10414 Police Police [?]-2-89}

{No action B.D.M 27/2/89}

{M. Silbermann 28 - 2 - 89 782}

Sir

I have the honor to bring under your notice, the following matter viz

At the civil sittings of the Northern Supreme Court, held at Bowen, befor M^r Justice Cooper on the 21^st day of November 1888 an action was tried wherein I was Plaintiff, and John Walsh Sargeant in charge of Police at Bowen was defendant. The cause of action was as follows

"False Imprisonment, Malicious prosecution, Assault, and Detention of property" and the amount of damages I claimed from the defendant was £1000-0-0.

The following is a copy of the evidence (including His Honors summing up) adduced at the hearing, of the before mentioned action viz

Supreme Court Bowen

Nov: 21^st 1888.

Before M^r Justice Cooper and a Jury of four

SILBERMAN V. SERGEANT WALSH.

Mr. Virgil Power (instructed by Mr. Macnish) appeared for the prosecution, Mr. Petrie appeared for Sergeant Walsh.

Jury:-Messrs G. Pott, J. E. Smith, F Clifton, and G. Betzel.

This was an action for wrongful imprisonment, and malicious prosecution. As compensation, plaintiff asked for £1000 damages, and the sum of £20 for loss of property.

Mr. Power, in opening the case, said that if it was proved to the satisfaction of the jury that Silberman was right, Sergeant Walsh was either one of the most stupid of policemen, or he was not fit to hold the position he now held. He said the Sergeant must have been actuated by some improper motive, and his actions were not worthy of a child seven years old.

George Dingwall's (telegraph clerk) evidence was taken on commission as regards the date of telegrams.

The evidence of H. Mayall, detective office, Brisbane, was taken by commission.

Joel Barnett's evidence was also taken on commission, part of which is as follows:-He was at Mackenzie's hotel and heard a noise: he went out and saw Silberman on the ground with the Sergeant on top of him; a man named Kenna was present; Walsh then took Silberman over to the lockup; said to the sergeant "you have made a mistake in arresting this man;" he said "mind your own business;" wanted to see the accused, but the sergeant refused positively, and I said "alright, I don't care, I don't want to be mixed up in the matter."

Michael Silberman, travelling jeweler, deposed: Was in Cooktown on the 3rd April; received a hawker's license there; arrived in Bowen by the Barcoo on the 7th of May from Cooktown; it was about 12 p.m.; saw Joel Barnett on the Jetty; asked him which was the best hotel to stay; he said there were only to decent hotels in the town-Cooke's and Mackenzie's; went to Mackenzie's hotel and took a bedroom, and had my jewellery with me in a Gladstone bag and a box; next day I sold some of jewelry in the town; went out hawking my wares on the morning of the 10th April; Walsh came into the hotel about half-past 12, I was sitting down reading; he said "a[r]e you a commercial travelling for a firm, or for yourself?" I said "why;" he said "you called at my place yesterday, have you got a license?" I said "would you like to see it" he said "yes;" I told him to come into my bedroom and I would show it to him; he said "Haven't you got it on you;" I said "what do you mean;" He said "It is a rule that every hawker must carry his license in his pocket;" I said "what difference does it make wh[e]re I keep it, come to my room and I'll show it ot you;" he went to my room; told him to sit down; then showed him two licences; he said, without looking at them, "that's all right:" he asked me if I had any studs; I said "yes;" showed him a set, and told him they were 15[?]; he said he did not want the whole set; he said give me two it won't spoil the set. nobody will notice it; I said nobody would buy a broken set; he then said "Oh never mind. I might buy a brooch from you before you go, and you can stick it on then; I said "that won't do me; if I sell anything I want money for it; he said "you are not half a man, a traveller once gave me a whole box of cigars;" I said "Thats' nothing to do with me; he threw the two studs on the bag and they fell on the floor; I said "Don't chuck my goods about, because I didn't give them to you don't get in a scott; he then said "Show me your license again;" handed them both to him: he read one and he said "it's right;" whilst he was reading it I said "Dinner's nearly ready, and I want to have a wash, make haste, as you told me the license was right;" he said

2.

Evidence continued

Evidence continued

"you seem to be in hurry;" he asked me if I knew the Townsvill C.P.S.; I said yes; he asked if I knew Buttaushaw, and he said he is a peculiar old cock, is he still alive;" I said it had nothing to do with me; he said "If you show me cheek like that I'll smack you across the jaw;" I said "You'll do nothing of the kind, because you are sergeant do you think you can do what you like;" he made a grab at me by the collar and dragged me round the room; I said if you knock me about I will go and make a complaint to a magistrate; he said "look here, old man. I arrest you on suspicion for a man named Scott, who robbed some jewellery in Sydney;" I then said "I'm not Scott, you've seen my license, I am Silberman, if that is not sufficient I will open my portmanteau and show you my papers;" he said "you are Scott, and I'll arrest you;" he gave me a violent kick on the ankle and knocked me down suddenly, and then got on top of me; I cried out "help" several times, and he struck me several times about the head; I saw two men come up named Kenna and Barnett; Barnett said "What's the matter;" they lifted me from the ground as my ankle was sprained; defendant again said "I arrest you for being Scott, who robbed some jewellery;" a man named Strange came up then; Barnett said to me "Go quietly;" defendant held me by the collar; when I came to the gate Constable Doran made a grab at me and took me into the lockup; two constables searched me; they asked the sergeant what the charge was; he said never mind; they took all my money and property from me; they locked me up; some time after I asked Doran to give me something to eat; he said I don't know, I'll ask the sergeant; I told him to go over to Mackenzie's and get me some; asked Doran what had become of my jewellry; he told me the sergeant had got it; he said "You have got a little money in the bank;" he said that they looked through my papers; asked them to allow me to see a doctor, or Barnett, or Macnish; he said I would have to ask the sergeant; defendant came afterwards and opened the grating and looked in and said "How do you like that little parlour, are you in a better humour;" did not reply; he then called the two constables and asked them if they had searched me well; they said "yes;" he said search him again; defendant came into the cell and pulled my coat off, and said "I'll have to search you again, old man;" he ran throngh all my pockets, and couldn't find anything there; he pulled my shirt form my trousers and exposed my naked body to the two constables, saying I want to look for marks; he took my studs and solitaires away and said we don't know what these blackguards are, we must examine them properly; I asked him if had not enough revenge on me; am a German; he then went away; about 3 or 4 o'clock he came back and asked me if I was quite contented; told him I wanted to see Macnish, Barnett, or the doctor as my foot was injured; he said "I'll allow no man to go near you while you are in my charge;" I said "You have punished m[e] to-day but you'll have to suffer for it;" I asked him to send a telegram to Hoffnung and Co. in Brisbane to tell them of my arrest on a charge of being a man named Scott; he said "Do you think I can trust you;" he then said "I'll do nothing of the kind," and went away: some of the invoices in my bag were from Hoffnung and Co.; heard the sergeant say as he went away "Don't give him anything;" remain in the cell all night, without a mattrass or a blanket, or furniture of any kind; my tea and breakfast were sent over from Mackenzie's; when I came into the Court next morning my ankle was very painful, and I suffered very much agony; no bandages were given me in the cell for my ankle; told defendant that my foot was injured; was placed inside the prisoner's box; was charged with stealing jewellery from the shop of H. Benjamin, Sydney; defendant gave evidence, and asked the bench for a remand; heard Dr. Browne say you can't convict a man on this description; defendant said "I wouldn't have arrested him if he had not been so impudent;" the remand was refused, and I was discharged; the magistrates gave me an order to get my things; I went over to Mackenzie's and said I would take proceedings against defendant; sent a man for my things, and the sergeant said I must come myself; got assistance and went over to lockup; Constable Doran returned me all the goods he had taken from my person; I signed in the book for them; I then went with Constable Doran to a room where

3

evidence continued

defendant was, who had a document already drawn up and he told me to sign that to show that I had all my things correct ; I said I will have a look if all my jewellery is correct before I sign it : "Look at it;" he picked up the keys off his table and said here they are : Doran had not handed me the keys with the other things ; when I opened the bags I found all my clothes and jewellery upset; I found my papers away, and the sergeant said here are your papers, which he took off the table; found two gold watches and a little diamond ring absent from my bag; I refused to sign the document until I got the missing articles; defendant said "You won't get a thing out of them until you do sign it;" I asked him to let me have my clothes; he said "You won't get a d---d thing without you sign it;" he refused to allow me to take out a white shirt or a coat; I called upon the man who was with me to witness this refusal; I then signed it on protest, and took my things away; the value of the watches and rings was £20, and have never received them since; Dr. Browne examined me, and I paid him 10/6; the pawn tickets in my possession were shown to the bench; the hammer and chisel the sergeant said were housebreaking implements I now produce in court, I bought them three years ago for repairing my buggy; my ankle was so bad that I have not been able to walk well for the last six weeks; have on two other occasions paid half guineas for doctor's advice, and they have told me my ankle may never be well.

By Mr Petrie: Remember defendant seeing me at the hotel at 1/2 past 12 on the 10th; defendant never asked to see my jewellery; did not at that time tell me about a robbery; did not strike the sergeant when he arrested me; did not slam the door in the sergeants face; never put my hand on defendant; my conduct was good, and not likely to raise suspicion; had no list of a[r]ticles in my possession, but knew what I had; gave a receipt as I was compelled to sign it to get my clothes; do not think words in receipt were interlined when I signed receipt; do not think Dennis Walsh was present at the time; did not hear defendant tell me to see the things were all right before I signed paper; it was about dinner time when defendant kicked me; will swear I gave defendant no other cause than I have mentioned; never saw defendant before I came to Bowen; the only reason of malice on the part of the sergeant was because I would not give him the studs; limped unassisted to the Court-house from Mackenzie's on the 11th; had lumps and cuts on my head; defendant used more than ordinary f[o]rce to arrest me; did not hear defendant call out to Mr. Mackenzie to send for a constable to assi[st] him[;] Doran met us at the gate; complained immediately I got in the lockup of my ankle being hurt; will swear that it was through the kick I received from defendant that my ankle was so bad.

Further examined by Mr. Power: I am just on 22 years of age; have property near Mount Perry; it was about the 16th May I gave Messrs Roberts and Roberts instructions to proceed against defendant.

William [Aguew?] Browne, duly medical qual[i]fied practitioner, desposed : Remember the plaintiff consulting me on the 11th May; he was suffering from a sprained ankle; was a sitt[i]ng magistrate on that day; the Bench refused to grant an application for a remand of three days, as there was no grounds for the arrest; when the pawn tickets were produced I said it was absurd to show tickets that were issued before the robbery.

By Mr. Petrie: From the sergeant's statement, which was only one side of the question I did not consider he was to blame; did say to Silberman that I thought there was no necessity to examine the lump on his head; a sprained ankle is always more or less serious; it would be difficult to say when it would be cured; saw him walking about afterwards rather lame.

Edwin J. Strange, photographer, deposed: My gallery is next to Mackenzie's hotel; was in my place on the 10th, and my attention was called to the cries of "help, help;" jumped over the fence and went into Mackenzie's yard; saw Sergeant Walsh conducting plaintiff to the lockup he did not appear to be resisting; was in the court next day during the prosecution; he had only one boot on and the other in his hand; he appeared to be lame; heard Walsh say if he had not been so impertinent in refusing to show his jewellry he would not have taken him up; do not remember whether the Bench rebuked Walsh.

This closed the case for plaintiff.

4.