Howard v Jarvis [1958] HCA 19

High Court of Australia Dixon C.J. Fullagar and Taylor JJ. Howard v Jarvis [1958] HCA 19

ORDER Appeal allowed with costs. Discharge order of Full Court of Supreme Court of Tasmania. In lieu thereof order that appeal from judgment of Gibson J. be dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 30 Dixon C.J., Fullagar and Taylor JJ.

This is an appeal from a judgment of the Full Court of the Supreme Court of Tasmania, which allowed an appeal from a judgment of Gibson J. in an action tried by him with a jury. The action was brought under the Tasmanian equivalent of Lord Campbell's Act. The plaintiff, who sued for the benefit of herself and four young children, is the widow of William John Jarvis, whose death in tragic circumstances occurred during the night of 13th to 14th November 1955 at Hamilton, a small township in southern Tasmania.

The appellant Howard was at the material time a constable of police stationed at Hamilton. He was the only policeman there stationed. Jarvis was employed by a Mr. Downie on a station property known as Glenelg near Hamilton. On the evening of 13th November, which was a Sunday, he returned to Glenelg from a week-end fishing trip under the influence of liquor and aggressive and disposed to violence. Howard was summoned by telephone, and proceeded to Glenelg. At the entrance to the property he met Maxwell Roy Strong, another constable of police, who was stationed at Bushy Park, a township near Hamilton. Jarvis and his wife were at the time at the house of Johnson, another employee on Glenelg, and the two constables proceeded to Johnson's house. Very shortly after their arrival Jarvis knocked Johnson to the ground unconscious. A little later Howard arrested him, and the two constables took him to the police station at Hamilton, where a charge of assault was entered against him. The constables then proceeded to lock him up for the night in a cell at the station. Howard and Strong gave evidence that, before he was locked up, he was searched by Howard in the presence of Strong. Just before this he appears to have lighted a cigarette. The constables' account of the search would appear not to have been accepted in its entirety by the jury. Howard's account had better be quoted in full as recorded by the learned trial judge. Howard said:—"I started from top pocket of his coat and continued down through the pockets to his trouser pockets, searched his jacket and shirt—jumper, then ran both hands down both legs to the top of his boots. I then ran my hands down his arms. Strong took no part in the search. I took £19 4s. 10d. in money from him; two boxes of matches—a packet of cigarettes and part used packet of tobacco—a pocket knife—wallet and personal papers—a small quantity of papers in top pocket—could have been cigarette papers among these. When I was taking papers out of top pocket he commented that I didn't have to go that far in searching him. The property was entered in the charge book, and the money was counted in front of him. I asked Strong to take him to the cells. Trooper Strong asked him to butt the cigarette—he did so. Strong then asked him to let him see the butt. This was half way between the office and the cell. Before he walked into the cell Strong asked him to show him the cigarette. Strong caught hold of the end of the cigarette in his thumb and fingers. Jarvis then placed the cigarette in his coat pocket." In cross-examination he said:—"I left nothing on deceased with which he could start a fire within the cell."