reading on the peace and good behaviour act … · reading on the peace and good behaviour act 1982...

C o n t i n u i n g L e g a l E d u c a t i o n ( C L E ) 1 2 J u l y 2 0 0 5

J o h n A b e r d e e n 1

READING ON THE PEACE AND GOOD BEHAVIOUR ACT 1982

CONTENTS

I Origins of the Act II Nature of Proceedings III Standard of Proof IV Elements of Proof V The Order

a) In respect of whom does it apply?

b) Stipulations and conditions

c) Duration of the order

d) Revocation, amendment or variation of the order VI “Breach of the Peace” VII “Good Behaviour” VIII Costs IX Other matters

a) the 2004 Amendment

b) Application as a basis for an action of malicious process

c) Must the enjoined conduct be unlawful per se?

d) Can a PGBO be made against a child?

e) Does an actual assault preclude an application?

f) Can an order be made “by consent”? ANNEXURES

I



Origins of the Act

“The Act is a modern restatement of the very ancient power of justices of the peace in England to bind persons over to keep the peace”1

It is proposed to re-enact in a modernized form the repealed provisions of the Justices Act which related to

surety of the peace and for good behaviour and to incorporate a means for effectively dealing with breaches of the orders of the courts made with respect to the keeping of the peace and for good behaviour as well as

to provide realistic penalties for the breaches2.

Since at least the 14th century, the justices of the peace in England have dispensed a form of

“preventive justice”. If there appeared to be grounds for suspecting that a person could commit a

breach of the peace, or other anti-social act, at some time in the future, a justice could require that

person to enter into a recognizance, that is, an “agreement” with the Crown, to the effect that if the

person did breach the peace, or commit the act, in the future, they would forfeit a certain sum of

money. It was also a common requirement that the person would have to find perhaps two other

people to stand as “sureties”; each of these sureties would also have to pledge a certain sum of

money which, in the event, of a breach of the peace by the first party, would be forfeited to the

Crown. The amounts of money varied, according to the seriousness and perceived likelihood of the

potential breach, and the means and station of the subject. In one case, the amount of £10,000

was required from the subject himself, along with two sureties each in the sum of £5,0003. The

recognizance, or undertaking, would be ordered to remain in force for a certain length of time –

periods of one or two years were not uncommon; in one case a period of 14 years was specified;

under the prevailing legal theory, a person could be subject to a recognizance for life.

To say that the recognizance was an “agreement” is to overstate the true situation. If the subject

refused to enter into the recognizance, or if the required sureties could not be found, then the

subject would be imprisoned for a specified period, unless the pledges were forthcoming.

1 Per McPherson JA in Laidlaw v Hulett ex parte Hulett [1998] 2 Qd R 45, 50. 2 288 QPD 841 (14/09/1982) per Hon S S Doumany (Minister for Justice and Attorney-General). 3 R v Bowes (1787) 1 TR 696 [99 ER 1327].



There were two limbs to the practice of binding-over: a person could be bound over to “keep the

peace”; or a person could be bound over “to be of good behaviour”. The two limbs were often

combined in one order.

The origins of each of these two procedures is open to argument, but it has been usual to venture

the opinion that the power to bind over to keep the peace arose from the terms of the Commission

of the Peace to justices, while the power to bind over to be of good behaviour was based upon the

Statute of 1361 (34 Edw III c 1)4. One can nevertheless find statements to the effect that both

powers predated the 1361 statute5, an interesting possibility if one needed to consider whether or

not these common law powers still reside ex officio in justices of the peace in Queensland.

As a result of more than five hundred years of consideration, the ancient binding-over powers

attracted their own forms of practice and procedure, traces of which can be detected today in the

Peace and Good Behaviour Act.

For example, a defendant was unable to give evidence which contradicted what was said in the

affidavits filed by the applicant for the order, nor could he cross-examine the applicant or the

applicant’s witnesses6. The defendant could lead evidence to show that the application was

brought out of malice or bad faith7. Traces of this practice are visible in s 6(2) of the Act.

Queensland Antecedents:

4 C K Allen, The Queen’s Peace (London 1953) pp 61-66; D Feldman, “The King’s Peace, the Royal Prerogative and Public Order: The Roots and Early Development of Binding Over Powers” [1988] Cambridge LJ 101. The powers were intimately associated with the office of Justice of the Peace, and a history of the development of that office is necessary to an understanding of the emergence of the binding-over powers. The basic historical materials are C A Beard, The Office of Justice of the Peace in England in its Origin and Development (1906, repr 1967), and Sir Thomas Skyrme, The History of the Justices of the Peace (1991) (3 volumes). An important discussion of the “good behaviour” power is C G Crump and C Johnson, “The Powers of Justices of the Peace” (1912) 27 (106) EHR 226-238. 5 See eg Lansbury v Riley [1914] 3 KB 229; Feldman op cit. 6 Lord Vane’s Case (1744), R v Doherty (1810) 13 East 171 [104 ER 334]; Ex parte Bowman (1858) Wilkinson’s Queensland Magistrate (1879) Part III p 76 (SC NSW); Lort v Hutton (1876) 45 LJMC 95; G L Williams, “Preventive Justice and the Rule of Law” (1953) 16 Mod LR 417, 423; W K T Allen, The Justices Acts of Queensland (3rd Ed, 1956) p 462. 7 Per McPherson JA in Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45, 50.



These ancient procedures were received into the Colony of New South Wales, and upon

Separation, became part of the law of Queensland. It is possible to find occasional references to

the process in contemporary sources -

HAMPSON v HILL

Central Police Court, Brisbane Messrs Petrie, Cowlishaw & Martin

28 November 1871

This was a charge brought by one Wm Henry Hampson v. Henry Hill, for abusive and threatening language. The complainant, a bootmaker by trade, residing in Edward-street, Spring Hill, deposed that about 3 o’clock on the morning of the 24th instant some stones were thrown at his place; a constable came in answer to his summons and ran after defendant and another man; previous to calling for the police saw the defendant throw the stones; the police did not overtake defendant; subsequently saw the accused, who had some stones in his hand; an altercation took place between them, and in the presence of a witness defendant threatened to break his sanguinary head and nose; on four previous occasions stones had been thrown at his premises; was afraid that defendant would do him some bodily harm. A witness named Charles Henry Sutton corroborated the statement of complainant. Defendant was bound over to keep the peace for six months, himself in £20, and two sureties in £10 each. (Brisbane Courier, 30/11/1871)

In 1882, the Full Court of Queensland, in O’Kane v Sellheim, confirmed that the 1361 statute

applied generally in this Colony8. The Justices Act 1886 did not expressly repeal the 1361 Act9,

although there is no doubt that Samuel Griffith, having acted as counsel in O’Kane v Sellheim, and

having been intimately involved with the passage of the Justices Act10, would have been well

aware of its operation. The Justices Act 1886, in Part VIII, introduced a statutory process for

binding-over, based upon s 25 of the English Summary Jurisdiction Act 1879. In 1900, the Criminal

Practice Rules, by Order XI, prescribed the procedure to be followed in applying for Articles of the

Peace11.

8 Although, in the circumstances under consideration in that case, the Court held that the operation of the Act had been suspended where the act complained of fell within the Defamation Act 1847 (NSW). The appellant, Thadeus O’Kane, was the proprietor of the Northern Miner in Charters Towers. He was no stranger to litigation: see D H Johnson, “To Silence a Jackdaw: Gagging the Northern Miner” (1994) 15 (6) RHSQ Jnl 299. 9 The First Schedule to the Act contained the repealed enactments. The 1361 Act was not repealed by the Criminal Code Act 1899. 10 Higgins v Comans & DPP [2005] QCA 234, at [3] per McPherson JA. 11 For previous rules, see Justice G R Harding, The Acts and Orders Relating to the Jurisdiction , Practice, and Pleading of the Supreme Court of Queensland (on the Crown Side) (1887) pp 48-49; compare the English practice outlined in R J & A B Corner, The Practice of the Crown Side of the Court of Queen’s Bench (1844) pp 17-23; F H Short & F H Mellor, The Practice on the Crown Side of the King’s Bench Division (2nd Ed, 1908) pp 377-385; for the practice at Quarter Sessions, see T S Pritchard, The Jurisdiction, Practice and Procedure of the Quarter Sessions (1875) pp 627-638; R G S Baker, Archbold’s Practice of the Court of Quarter Sessions (5th Ed, 1898) pp 254-265. General reference may also be made to J Paterson, 1 Commentaries on the Liberty of the Subject (1877) pp 187 et seq.



Part VIII of the Justices Act was itself repealed in its entirety in 1964, although the reasons for such

repeal are not clear12. The Criminal Practice Rules 1999 repealed the Rules of 1900, but contained

no comparable provisions governing Articles of the Peace.

It can be assumed that the 1361 Act was eventually repealed by the Imperial Acts Application Act

1984.

The Peace and Good Behaviour Regulations 1999 have been passed to facilitate some areas of

practice.

As at the time of writing, the Queensland Law Reform Commission has the Act under review, and

is due to report on 31 December 200513.

12 Compare McPherson JA in Laidlaw v Hulett op cit at p 50. The relevant Parliamentary Debates make passing reference to the repeal of “obsolete” provisions. E Campbell and H Whitmore noted: “Part VIII of the Act was repealed in 1964 following a committee report that the binding over jurisdiction was seldom invoked. It is understood that consideration is being given by another governmental committee to the re-enactment of the repealed provisions”: Freedom in Australia (1973) p 152. 13 QLRC WP 59, March 2005. For those who may be interested, there are general discussions of the binding-over powers in Australia in various texts, notably E Campbell & H Whitmore, Freedom in Australia (1973) pp 144-157; G A Flick, Civil Liberties in Australia (1981) pp 113-118; S Bronitt & G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adel LR 289. Perhaps the most exhaustive treatment remains the valuable article by P Power, “An Honour and Almost a Singular One: A Review of the Justices’ Preventive Jurisdiction” (1981) 8 Mon ULR 69-133.



II

Nature of Proceedings

The classification of a proceeding as either “criminal” or “civil” may have implications in a number

of procedural areas. It will generally affect the standard of proof applicable to the hearing of the

matter. It may impact upon the question of costs, although under the PGBA this is governed by

section 8 (see VIII post). Further, it may have a bearing upon the rules of evidence applicable in

the proceeding, having regard to the fact that there are some divergences between evidential rules

in civil and criminal proceedings14.

The question which arose in Laidlaw v Hulett, ex parte Hulett was primarily directed to the

appropriate standard of proof in an application under section 6(3) of the PGBA. Basic to that

determination was the proper clasification of the proceeding.

In support of the contention that the proceedings were “criminal” in nature, reliance was placed

upon section 8 of the PGBA:

Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of a prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6 as if such complaint were a complaint in respect of such an offence. This section, it was held, did not operate to convert what was, on its face, a civil proceeding, into a

criminal proceeding15.

III

14 This was the main issue in the English ASBO cases, see III post. 15 Laidlaw v Hulett ex parte Hulett [1998] 2 Qd R 45, per Fitzgerald P at 49; McPherson JA at 51; the third member of the Court, Shepherdson J, decided that the proceedings under s 6 were “analogous to a criminal proceeding”: at 53. The English courts have also ruled that proceedings under the Crime and Disorder Act 1998 for an Anti-Social behaviour Order are civil proceedings: see III post.



Standard of Proof

(i) The Making of the Order:

The main issue addressed by the Court of Appeal in Laidlaw v Hulett, ex parte Hulett16 concerned

the appropriate standard of proof in the making of an order under s 6(3)(b). Each of the members

of the Court were of the view that the standard, having regard to the fact that what was being

alleged by an applicant could well constitute criminal offences, was that described by the High

Court in a series of cases commencing with Briginshaw v Briginshaw.

Fitzgerald P said17:

Even if proof beyond reasonable doubt of “the matter of the complaint” is not required (as is my tentative opinion notwithstanding Percy v DPP [1995] 3 All ER 124) before an order can be made under s 6(3)(b)of the Peace and Good Behaviour Act, it is plain that the strength of the evidence necessary to establish the basis for an order under s 6 must take into account the seriousness of the allegation made against the person against whom the complaint is made: see, for example, Briginshaw v Briginshaw (1938) 60 CLR 336; Helton v Allen (1940) 63 CLR 691; Rejfek v McElroy (1965) 112 CLR 517; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. McPherson JA agreed18: …I respectfully agree with the view adopted in the reasons of Fitzgerald P that the character of the allegation in proceedings under the Act ought to be considered in assessing the weight of the evidence in a case like the present. See Briginshaw v Briginshaw (1938) 60 CLR 336, as well as Rejfek v McElroy (1965) 112 CLR 517 and other authorities in that tradition which are cited in his Honour’s reasons. The third member of the Court, Shepherdson J, said19: I have concluded that although proof beyond reasonable doubt is not required before an order can be made under s 6(3)(b), nevertheless, as the President has said in his reasons for judgment “the strength of the evidence necessary to establish the basis for an order

16 [1998] 2 Qd R 45. 17 Ibid at p 49. 18 Ibid at p 52. 19 Ibid at p 55.



under s 6 must take into account the seriousness of the allegation made against the person against whom the complaint is made…” Having regard to the Court’s opinion, it is useful to re-state the relevant part of the majority

judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Others20:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw [60 CLR at p 362]: ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…’ (ii) Proceedings for Breach of an Order:

20 (1992) 110 ALR 449-450, per Mason CJ, Brennan, Deane & Gaudron JJ; 67 ALJR 170. It is of some interest to contrast the position under the (repealed) Part VIII of the Justices Act 1886 and at common law. In commenting upon the standard of proof under the former, Mr Kennedy Allen expressed the view that the criminal standard of proof would probably be appropriate (referring to Helton v Allen (1940) 63 CLR 691): The Justices Acts of Queensland (3rd Ed, 1956) p 462. However, under the old s 204, imprisonment of up to six months could be the result of failing to enter into the required recognizance. This possibility of imprisonment in default was also suggested to be the basis of the decision in Percy v DPP [1995] 1 WLR 1382; [1995] 3 All ER 124: see B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340; [2001] 1 All ER 562 (both Fitzgerald P and McPherson JA in Laidlaw referred to Percy’s case). The fact that previous statutory provisions governing recognizances were contained within the Justices Act, and were not part of a separate enactment (as they are since 1982) may also have been relevant: see McPherson JA in Laidlaw at p 52. The superior English Courts, in considering the nature of the Anti-Social Behaviour Order under the Crime and Disorder Act 1998 (which, in legislative structure, is not too dissimilar from the Queensland Act) have also concluded that the proceedings are civil in nature, but that the heightened civil standard of proof appropriate in such cases approximates to the criminal standard, ie proof beyond a reasonable doubt: see R (McCann & others) v Crown Court at Manchester; Clingham v Kensington and Chelsea Royal London Borough Council [2003] 1 AC 787, affirming R (McCann & others) v Crown Court at Manchester [2001] 1 WLR 1985; [2001] 4 All ER 264; and S Macdonald, “The Nature of the Anti-Social Behaviour Order” (2003) 66 (4) Mod LR 630-639.



Proceedings for breach of an order made under the PGBA are criminal proceedings, and the

appropriate standard of proof is “beyond a reasonable doubt”.

~ Notes ~

IV

Elements of Proof

There are three different procedures contained within the PGBA. They are:

i) the laying of the complaint, under section 4(1);

ii) the hearing of the application, under section 6(1); and

iii) proceedings for an offence under section 10.

(i) The Laying of the Complaint:

Under section 4 subsections (1) and (2), the complainant may make a written complaint, on oath,

before any justice. That complaint must attest to two fundamental facts:

(a) that one or more of the events described in section 4(1) or (2) has occurred; AND

(b) that the complainant is in fear of the defendant.

Before the originating process is issued, two further conditions must be satisfied. Firstly, the

“matter of the complaint”21 must be satisfied to the justice’s satisfaction. Secondly, the justice must

consider that it is “reasonable” in the circumstances for the complainant to be in fear of the

defendant22.

21 The “matter of the complaint” is the act, or acts, specified in section 4(1) or (2), and the fact that the complainant is in fear of the defendant: Laidlaw v Hulett ex parte Hulett [1998] 2 Qd R 45, 47 per Fitzgerald P. 22 If it were the case that it appeared to the justice that the defendant’s actions, the subject of the complaint, were made in the heat of the moment, and did not justify ongoing fear in the complainant, then the process should not issue. Compare Morse v Klooger [1918] VLR 204, where Cussen J said: “…the question is whether this was not a momentary ebullition of temper, whether it was not manifestly bluster, and whether the complainant was in any real alarm…I cannot think the complainant was in any real fear or that what the defendant said was anything more than bluster…”


J o h n A b e r d e e n 1 0

The issuing justice must consider the material presented by the complainant. The function at this

stage is a ministerial one, but the discretion to issue process must be exercised in a judicial

manner23. The justice is entitled to act upon the truth of the statements contained in the sworn

complaint, and must assess whether the facts constitute a “threat” or as the case may be. Whether

it is “reasonable” for the complainant to be in fear at the time of laying the complaint is clearly a

decision for the justice to make, upon the material presented.

If there is a need for further material prior to the making of a decision, section 5 of the Act would

seem to provide for that eventuality:

The justice of the peace, in the consideration of the substantiation of the complaint to the justice’s satisfaction, may make or cause to be made such inquiries and receive such evidence as the justice thinks fit.

This section permits an inquisitorial function on the part of the justice. It would also appear that

there is intended to be some flexibility as to the evidence upon which the justice is to act, although

it is probable that any such evidence (even that which may be hearsay in nature) would still have to

presented under oath.

(ii) The Making of the Order:

Under section 6(1) the Court shall “hear and determine” the “matter of the complaint”. The matter

of the complaint is as stated above: that the act or acts complained of took place, and that the

complainant is in fear of the defendant.

It is notable that section 6 does not require that the Court be satisfied that it is “reasonable for the

complainant to be in fear”, as is the case with section 4(2A). However, if it were the case that the

Court came to the conclusion that it was not reasonable for the complainant to be in fear, it would

usually be inappropriate for an order to be made24.

23 Electronic Rentals v Anderson (1971) 124 CLR 27; R v Peacock ex parte Whelan [1971] Qd R 471. 24 Laidlaw v Hulett supra, per Fitzgerald P at 47; Scheumack v Duncan, Dist Crt, Mackay, 28/04/97, Wall QC DCJ.



In Scheumack v Duncan25, Wall QC DCJ upheld the decision of a Magistrate to refuse to make an

order under section 6 where it appeared, at the time of the hearing, that it was not reasonable for

the complainant to then be in fear of the defendant. This, the Court held, was a relevant matter to

consider in exercising the discretion to make or refuse an order. This reasoning is similar to that

applied in England, where an order will not be made unless there is a real possibility of a future

breach of the peace26.

(iii) Proceedings for an offence:

Offences against the Act, constituted by the breach of an order, are created by section 10. In so far

as proceedings for an offence are concerned, there is no reason why the normal incidents of

criminal proof should not apply to a prosecution under section 10.

V

The Order

(a) In respect of whom must the defendant keep the peace, etc? The Act requires that the complaint be laid by a particular person, namely, the “complainant”.

However the terms of the order, as set out in section 6(3)(b), do not specifically refer to a

25 Unreported, Dist Crt Mackay, 28/04/97. 26 M Dalton, The Countrey Justice (1619) p 144: “Note also, the suretie for the Peace shall not be graunted but where there is a feare of some present, or future daunger; and not meerely for a battery, or trespasse that is past, or for any breache of the Peace that is past; for this suretie of the Peace is only for the security of those who are in feare…”; R v Aubrey-Fletcher ex parte Thompson [1969] 2 All ER 846, per Lord Parker CJ at 847: “…it seems to me there is no jurisdiction to make this order unless, in the course of proceedings, it emerges that there might be a breach of the peace in the future”; per Edmund Davies LJ at 848: “There must emerge during the course of the hearing…material from which it may fairly be deduced that there is at least a risk of breach of peace in the future”; in R v Inner London Crown Court ex parte J [1993] Crim LR 41, it was said that there must be a “real and not a fanciful possibility” of future problems. See also Lister v Morgan [1978] Crim LR 292; R v South Molton JJ ex parte Ankerson [1988] 3 All ER 989.



requirement that the defendant keep the peace and be of good behaviour towards the

complainant. Conceivably, then, an order could take any one of a number of forms, that is: (i) it

could refer to the complainant alone; (ii) it could refer to the complainant and other named persons;

(iii) it could refer to the public at large; or (iv) it could include each of the aforementioned objects

within its terms.

Dalton stated that the justice had a discretion as to the objects of the order27:

If the recognizance be, to keep the peace towards the king, and all his people, but not

towards any person certain, yet it seems good.

So if the recognizance be to keep the peace towards A only, it seems good; or to keep the

peace towards A and his servants, without being bound toward the king, and all his

subjects, it seems good.

But the best form is to bind the party, to keep the peace towards the king and all his

people…

The form usually applied in practice was to require that the subject kept the peace towards the

public, and especially towards the particular complainant. Thus, Forms 25 and 26, in the Third

Schedule to the Justices Act 1886 provided:

…that you AB keep the peace towards Her Majesty the Queen and Her people, and

especially towards CD of [address] [occupation]

In similar form was the recognisance prescribed by Form No 5 to Order XI rule 5 of the Criminal

Practice Rules 1900 (repealed).

(b) Stipulations and conditions:

There was no power to append conditions to an order to keep the peace and be of good behaviour

under the common law28; nor did the repealed Part VIII of the Justices Act provide for the

27 Dalton (1619) pp 155-156.

28 A J Chislett, “Recognisances and Conditions” [1958] Crim LR 734; R v Ayu [1958] 3 All ER 636; Goodlad v Chief Constable of South Yorkshire [1979] Crim LR 51; R v Wright, ex parte Klar (1971) 1 SASR 103, 112-113, 135-136; Lister v Morgan [1978] Crim LR 292; Power op cit at 120-122; compare Sawyer v Bell (1962) 106 SJ 177.



imposition of any conditions under the recognizance. The P&GBA has departed from this

traditional position, and section 6(4) provides:

(4) The Order made by the Court may contain such other stipulations or conditions as the

Court thinks fit.

This is reinforced by section 10(2), which creates the offence of breaching an order:

(2) For the purposes of this section, a contravention or failure to comply with an order

includes a contravention or failure to comply with any stipulation or condition thereof.

No specific criteria are given in the Act with respect to the possible content of any stipulation29 or

condition30. During the Second Reading speech on the 1982 Bill, the Attorney-General said31:

The order may include such stipulations and conditions as the court sees fit. For example, conditions requiring the defendant to keep the peace and be of good behaviour especially towards the complainant and any other person on whose behalf the complaint is made, such as a child, may be included. As has been seen above, the common law permitted the order to apply in respect of particular

persons, or the public at large, or both. Such a stipulation, it is suggested, would have been

permissible even without the inclusion of section 6(4).

It will be necessary to relate “stipulations” and “conditions” to the purpose of the order, ie, keeping

the peace, and maintaining good behaviour. Such broad phraseology could conceivably

encompass an enormous range of conditions32, unless it is “read down” by the Courts, as a matter

of policy.

29 Considering the definitions of “stipulate” and “stipulation” in the Shorter Oxford English Dictionary, it is difficult to see that “stipulation” adds a great deal to “condition”. 30 Statutes authorizing the imposition of conditions governing future conduct are not uncommon. The Domestic and Family Violence Protection Act 1989 provides for the imposition of conditions, but then goes into considerable detail with respect to the possible content of such conditions (see esp ss 25, 25A, 26). The Bail Act 1980 lays down a more concise set of criteria governing the content of conditions. (On bail conditions, reference could be made to R v A (1968) 13 FLR 342 (ACT); Re Bayliss, Sup Crt Qld, 24/05/85, McPherson J; Re Ferrier & Georges, Sup Crt Qld, 04/04/85, Carter J; Levy v Strickland (1983) 8 A Crim R 236 (Tas); K Warner, “Bail Conditions and Civil Liberties” [1983] LSB 124; R v Mansfield JJ, ex parte Sharkey [1984] 3 WLR 1328 (QBD) ). 31 288 QPD 842. 32 There are interesting parallels between these very broad terms, and the Anti-Social Behaviour Orders (ASBO) made under the Crime and Disorder Act 1998 (Eng). For explanations of these orders, the reader is referred to S Cracknell, “Anti-Social Behaviour Orders” (2000) 22 (1) Jnl Social Welfare & Family Law 108-



(c) Duration of the order:

Under section 6(3)(b), the Court may make an order to have effect “for such time, specified in the

order, as the Court thinks fit”.

At common law, a person could, in theory, be bound over for life33. The common practice, as

reflected in the cases, would seem to have favoured a period of 12 months34. These cases,

however, were decided when the subject was required to find sureties, and could be imprisoned for

failing to do so. There is clearly a distinction where, as under the PGBA, no sureties are required

(nor is there imprisonment in default), but the subject is simply ordered to keep the peace and

good behaviour.

It is probably still reasonable to impose an order for periods extending from perhaps 6 months to 2

years. In determining an appropriate period, it is necessary for the Court to have regard to the

particular circumstances of the parties, and to impose an order “for such a length of time as will

best answer the ends of public justice”35. It may be relevant to consider such matters as the

seriousness of the threats, or the assault, the number of occasions on which such have been made

(and the overall period encompassing such threats or assaults), and whether the subject of the

order has a known history of violence against any persons.

115; K Reid, “Anti-Social Behaviour Orders: Some Current Issues” (2002) 24 (2) Jnl Social Welfare & Family Law 205-222; S Macdonald, “The Nature of the Anti-Social Behaviour Order: R (McCann) v Crown Court at Manchester (2003) 66 (4) Mod LR 630; A Samuels, “Anti-Social Behaviour Orders: Their Legal and Jurisprudential Significance” (2005) 69 (3) J Crim L 223-231. On conditions specifically, see R v McGrath [2005] EWCA Crim 353. 33 Dalton (1619) pp 154-155. 34 See eg R v Bowes (1787) 1 TR 696 [99 ER 1327], per Erskine arguendo pp 1327-1328. In Bowes, the subject was ordered to keep the peace for a period of 14 years. Although the Court had no doubt that such a period was lawful, it nevertheless reduced it to 2 years. See also 1 CLOS 197-199. 35 R v Bowes at p 1329.



VI

“Breach of the Peace”

With the passing of the 1982 Act, many of the historical idiosyncrasies associated with binding-

over orders were jettisoned, and a more streamlined procedure was put into place. What was

retained, and what is central to any consideration of the Act, was the time-honoured, but

nevertheless curious, expression, “to keep the peace and to be of good behaviour”. The

Legislature’s action in continuing in use this formula is an indication that any attempt at

interpretation, even in its modern context, should not disregard its early foundations.

What is involved when a person does not “keep the peace”? The most logical answer is that the

person is in “breach of the peace”. Certainly, that is the concept which was central to ancient

authority on the binding-over process. The idea of a “breach of the peace” also survives in other

modern statutes36. As the commission of a “breach of the peace” by the subject of an order under

the PGBA constitutes a criminal offence, it is important that the concept should be properly

understood. Surprisingly, that has not always been the case.

“Peace”, as a matter of general usage, could have a number of different meanings. In “peace and

quiet” it describes a general state of affairs, generally free from disruption or disturbance37. To take

a more technical approach, it could be used in the context of “the Queen’s peace”, which

36 For example, s 260 Criminal Code; s 42 Police Powers and Responsibilities Act 2000. 37 Perhaps its usage in the well-known phrase “disturbing the peace”.



conceivably could include every offence against the law38. Its meaning, in the context of breach of

a recognizance, is even more restricted.

The earliest explanation of “breach of the peace” remains among the most authoritative. In 1503,

Thomas Marowe delivered a reading in the Inner Temple entitled De pace terre et ecclesie et

conservacione ejusdem, Westminster primer, capitulo primo. In Chapter 7 of that reading, he dealt

with breaches of the peace in considerable detail. Marowe provided a large number of factual

examples as to what would, and what would not, constitute a “breach of the peace”. If general

principles can be extracted from these various instances, it is suggested that the end result is as

follows39:

“Breach of the peace” is constituted by:

either (a) the doing of unlawful violence by one person to the person of

another;

or (b) an act which is in terrorem populi such as unlawful assembly,

affray, or going armed to cause fear.

If this definition is accepted, then under paragraph (a), the act must also constitute an offence

under the Criminal Code. It would not include force used lawfully in cases such as self-defence or

a lawful arrest40. It would also not include “accident”. Under paragraph (b) it could be said that

most, if not all of the acts encompassed therein are also offences under the Code41.

38 This thesis is advanced by the editor of Kenny’s Outlines of Criminal Law (19th ed, 1966) p 578: “Strangely enough what constitutes a ‘breach of the peace’ has not been authoritatively laid down. But, as it seems to mean a ‘breach of the Queen’s peace’, it should include every crime”. For reasons advanced above, it is suggested that this view is not correct. Compare G L Williams, “Preventive Justice and the Rule of Law” (1953) 16 Mod LR 417, 418. 39 See Aberdeen op cit p 199. 40 See eg Lutwyche J in R v Royds ex parte Sidney (1860) 1 QSCR 8, 9: “…by arresting a man’s person without proper authority a breach of the peace is committed; and that reason does not apply to an illegal distress upon goods”. Semble an arrest made with authority was not considered a breach of the peace; note also R v Ormer (1804) 5 East 304 [102 ER 1086]. 41 Compare R v Cotter (1974) 2 QL 265 (Dist Crt, Bris, Demack DCJ). An old Public Defender note on “Breach of the Peace” records that R v Cotter was followed and applied by Maguire DCJ in R v Finnegan, Dist Crt, Qld, 01/11/78; but that there may have been different views expressed in R v Shaw (Dist Crt, Bris, 11/10/78, Kimmins DCJ) and R v Curr (Dist Crt, Qld, Loewenthal DCJ, details not known). Regrettably, full records of these decisions have not been located to date. On the in terrorum populi acts, see Chapter 9 of the Code.



Marowe’s reading was well-known to, and cited (clearly with approval) by William Lambarde in his

Eirenarcha42, and later by Michael Dalton in The Countrey Justice43. It is Lambarde and Dalton

whose works form the basis of most later discussion of “breach of the peace” by Courts and text

writers. Few, if any, expounders of this part of the law have ventured to return to Marowe’s original

text. Indeed, by 1819, even the continued existence of the reading may have been uncertain44.

Marowe’s original work was destined to be largely ignored, possibly due to his early death in 1505.

The manuscripts of his reading survived, in “Law French”, in various forms, but were not

resurrected until Professor Bertha Putnam edited, collated, and published his reading (still in “Law

French”) in 192445. Today there is still no authoritative translation of the reading in English.

Support for this quite-narrow view of “breach of the peace” was to be found in Halsbury’s Laws of

England. There it was defined, for the purpose of arrest without warrant46:

A breach of the peace is committed, so as to justify a private person in arresting the

offender without a warrant, where there is an actual assault, or when public alarm and

excitement are caused by a person’s wrongful act, or when a person obstructs a police

officer in the execution of his duty. Mere annoyance and disturbance or insult to a peron or

abusive language or great heat and fury without personal violence are not in general sufficient.

The general position remained as outlined in Halsbury until R v Howell, in 198147, where the Court

of Appeal said48:

We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in

42 (1581-2) see esp Ch 17. 43 (1619). 44 See Willes v Bridger (1819) 2 B & Ald 278, per Knowlys arguendo: “…for this [Hawkins] quotes the authority of Marrow, a Master in Chancery, who wrote on this subject…and the MS of whose work is said to be still preserved in Lincoln’s Inn Library”. 45 B H Putnam, “Early Treatises on the Practice of the Justices of the Peace in the Fifteenth and Sixteenth Centuries”, in Sir Paul Vinogradoff (ed), VII Oxford Studies in Social and Legal History (1924) pp 289-414. 46 9 Halsbury’s Laws of England (2nd Ed, 1933) p 86; 10 Halsbury (3rd Ed, 1955) p 343; 11 Halsbury (4th Ed, 1976) p 77, where the reference to obstructing the police has been deleted. 47 [1982] QB 416; [1981] 3 All ER 383; 73 Cr App R 31. 48 All ER at 389f; Cr App R at 37.



fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. The Court of Appeal expressed the view that the statement in Halsbury was inaccurate. The

Court’s own formulation differs from Halsbury in a number of respects: it includes harm likely to be

done to a person or in his presence, to his property. These were not within the definition in

Halsbury. Further, the putting of a person in fear of harm is said to be attributable to inter alia an

assault, which would appear to go well beyond acts in terrorem populi.

In any Queensland case where “breach of the peace” is raised, it is probable that the decision in R

v Howell will be prominent in argument. It has been accepted and applied on numerous occasions

in the United Kingdom49.

Whether a threat to damage property falls within the proper scope of the “breach of the peace”,

when considering the 1982 Act, is probably academic. Section 4(1) specifically includes threats to

damage property. There can be no doubt that a threat to damage property, made by a person

subject to an order, would breach the order, irrespective of whether it fell within “breach of the

peace” or “bad behaviour”. It is the 1982 Act itself which lends colour to the various terms used

within it.

VII

“Good Behaviour”

The expression “good behaviour”, like “breach of the peace”, has an impressive pedigree. The

phrase continues to find a place today in a number of statutes prescribing standards of future

behaviour50. On any view, it is an expression capable of encompassing within its terms a vast

range of human behaviour. A failure to be of “good behaviour” could include acts which are

49 For instance, Jarrett v Chief Constable of West Midlands Police [2003] EWCA Civ 397; Chief Constable of Cleveland Police v McGrogan [2002] EWCA Civ 86; Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29; compare R Stone, “Breach of the Peace: the Case for Abolition” [2001] 2 Web JCLI. Relevant authority before May 2000 is cited in Aberdeen op cit pp 199-260. 50 Sections 188, 189 Juvenile Justice Act 1992; ss 19(1)(b)(i), 32 Penalties and Sentences Act 1992; s 22 Domestic and Family Violence Protection Act 1989; rule 930 UCPR (contempt); s 19B Crimes Act 1914 (Cwth). The content of “good behaviour”, however, may vary, depending upon the terms of the particular statute, and the context in which the expression is used: compare Dowse v Gorringe [2004] QDC 477 para [21].



unlawful, immoral, or simply in bad taste. But where a penal sanction, of fine or imprisonment,

attaches to a failure to be of “good behaviour”, there is a compelling argument that some limitations

should be placed upon the otherwise-expansive scope of “good behaviour”.

Interpretation in Australia:

There is limited direct authority in Australia on the interpretation of the term “good behaviour”. The

most-detailed examination of the phrase, in a comparable context, has taken place in South

Australia51. In Higgins v Goldfinch52, the Full Court had to consider the case of a juvenile who had

been sentenced to five months detention for robbery, which had then been suspended upon his

entering into a recognizance to be of good behaviour for a period of twelve months. During the

period of the recognizance, he was convicted of three traffic offences, all arising from the same

incident, namely driving with an excess blood-alcohol concentration, driving whilst unlicensed, and

driving without due care. By a majority (King CJ and Legoe J) the Court held that these later

offences did not constitute a breach of the recognizance.

King CJ said53:

It is true…that the words “good behaviour” are ordinary English words. The meaning of words varies, however, according to context and purpose. When a child is told that his behaviour must be good, what is envisaged is quite different from that which is envisaged when a husband is told that he ought to behave well towards his wife. Good behaviour may refer, according to context and purpose, to personal habits, domestic or social obligations or commercial dealings, and the content of the concept differs in each case. Section 2a of the Offenders Probation Act and s 51(6) of the Children’s Protection Act are concerned with the criminal law. The purpose of the sections is to rehabilitate convicted persons by encouraging them to abandon criminal ways. The suspended sentence offers them freedom in lieu of imprisonment in order to direct them away from criminal conduct and in the direction of a law abiding way of life. I think that the words “good behaviour” in those sections must be understood in that context and in the light of that purpose. I think that in order to amount to a departure from the standard of good behaviour so as to activate a suspended sentence, conduct must not only be such as to constitute a breach of the law attracting penal sanctions, but must constitute such a breach as can fairly be regarded as a relapse into non-law abiding ways.

51 R v Malone (1980) 23 SASR 195; Devine v Carey (1980) 24 SASR 338; Higgins v Goldfinch (1981) 26 SASR 364; Rijnbeek v Daire (1982) 31 SASR 146; Rix v Murray (1984) 34 SASR 517; DAT v Police (2002) 83 SASR 237. 52 (1981) 26 SASR 364. 53 At pp 366-367. The whole of the judgment in this case repays careful study.



It follows from what I have said that, in my opinion, there are many offences on the statute books the commission of which would not be a departure from the standard of good behaviour for present purposes. A person is not necessarily in breach of the good behaviour condition of his bond because he infringes one of the many rules prescribed by statute and by subordinate legislation for the regulation of social and economic activity and for the protection and safety of the public. Traffic offences would not generally be breaches of good behaviour. Nevertheless the fact that an offence is created by the Road Traffic Act does not mean that its commission cannot be a departure from good behaviour. For instance, the offence of using a motor vehicle without consent is found in the Road Traffic Act (s 44) and that is a serious crime of dishonesty. Legoe J, in a summary of relevant issues, concluded:54

Proof of the commission of an offence subsequent to the bond will not necessarily be on its own sufficient proof of a breach of the condition to be of good behaviour. Several examples were discussed in argument; eg where a man is assaulted by the husband of the woman with whom he is in bed, in which circumstances the husband when being charged with assault does not have the defence of provocation available to him, at least in South Australia. If the husband, defendant, happened to be on a bond at the time, the conviction for assault would not on its own be sufficient proof in my opinion of a breach of that bond. The husband could and should be given the opportunity to explain the circumstances in answer to an allegation of alleged breach of bond. Such a proposition is inherent in the reasons of Zelling J in R v Malone (1980) 23 SASR 195, 196-7, and in my own decision of Devine v Carey (1980) 24 SASR 338, 341. The fact that there may be room for different opinions as to whether, in a particular case, the

subject conduct constitutes a breach of good behaviour, is illustrated by the dissenting judgment of

Sangster J55:

[After reciting the facts] My description of the events in question is that Goldfinch deliberately embarked upon a series of activities well knowing that he did not have a licence to drive the vehicle, well knowing that he had consumed such a quantity of alcohol as must have rendered him substantially incapable of exercising effective control over the vehicle, and driving the vehicle on a public road in an irresponsible manner. This conduct had all the earmarks of a serious disregard of the rights of property owners, a serious disregard of the laws regulating driving licences and the manner of driving a motor vehicle and, above all, driving with a substantially higher blood alcohol concentration than that which the Legislature has deemed, so far as penalty and other consequences are concerned, to be equivalent of driving under the influence and with all the attendant dangers to life and property. … I find it quite impossible to regard the conduct of which Goldfinch has been guilty as being consistent with the conditions of his recognizance that he be of good behaviour.

54 At p 385. 55 At pp 376-377.



It seems that each of the judges agreed that it was necessary to look to the totality of the conduct,

and its surrounding circumstances, in order to determine whether or not it breached the “good

behaviour” condition. Simply because subsequent conduct may be in breach of the criminal law, is

not the decisive criterion56.

In Queensland, the expression “good behaviour” was considered quite recently by his Honour

Judge McGill in Dowse v Gorringe [2004] QDC 477. The case concerned the “good behaviour”

condition in an order under the Domestic and Family Violence Protection Act 1989. His Honour

carefully considered the South Australian decisions, and said57:

…I think it significant that the South Australian courts which have considered the issue concluded that even conduct which is in breach of the law will not necessarily amount to a failure to be of good behaviour, for that purpose. The inference is that conduct which is not a breach of the law will not be. It may be that the standard of “good behaviour” is more rigorous for the purpose of [the Domestic Violence] Act than for that purpose but in circumstances where the failure to be of good behaviour is made a criminal offence for which the maximum penalty is imprisonment for one year, in my opinion the standard should not be much lower. For present purposes, it is not necessary for me to go further than to conclude that, in my opinion, the mere fact that the aggrieved spouse is unhappy about the conduct of the defendant, or that the defendant is doing something that the aggrieved spouse does not want the defendant to do, or is not doing something that the aggrieved spouse wants the defendant to do, will not without more amount to a failure to be of good behaviour.

“Good behaviour” in England:

The issue of “bad behaviour” will arise in Queensland only in the context of a breach of an order

made under the Act. Further, the content of “bad behaviour” will fall to be considered against the

background of an order which is initially made as a result of a threat of violence to person or

property. These two factors render English common law ideas of “good behaviour” in the context of

binding-over orders of little relevance to Queensland law. At common law, “bad behaviour” could

provide a basis for making a binding-over order in the first place, as well as constituting a breach of

that order.

56Reference should also be made to the cases following Higgins v Goldfinch, where that case was distinguished on the facts: see Rijnbeek v Daire (1982) 31 SASR 146 (Mitchell J), and Rix v Murray (1984) 34 SASR 517 (Zelling J). 57 [2004] QDC 477 paras [21] and [22].



The early English practice books contain a catalogue of activities which would warrant the making

of a binding-over order. Ferdinando Pulton’s De Pace Regis et Regni sets down58:

…the surety of good abearing may be forfeited by the extraordinary number of people, that the party bound hath attending upon him, or by his wearing of harness, or other weapons more than before he hath usually done, or be meet for his degree or estate, or by using of rigorous or terrible words, or threatenings tending or inciting to the breach of the peace, or indemeaning himself in his behaviour, company or gesture, or doing of anything which shall tend to the breach of the peace, or to put the people in dread or fear.

Ten years later, Michael Dalton, in The Countrey Justice, filled the greater part of five full pages59

with examples of what could constitute “bad behaviour” so as to justify a binding-over order,

ranging from common barreters, common quarrellers, and rioters, mingling ratsbane with one’s

neighbour’s corn and then casting it among his fowls, to adultery or fornication60. While most of

these actions are for practical purposes obsolete (with the exception of adultery), the modern

English law can be just as quaint. In Banks, the subject was bound over to be of good behaviour

after he had entered the ladies’ lavatory at a theatre, and peered over the partition at a lady using

the facility61. In another case, the subject was bound over to be of good behaviour after having

been found coming out of the ladies’ toilet at a cinema, dressed as, and having the identification of,

a woman62. In each of these cases, one can assume that a repetition of this conduct on the part of

the recognizee would have constituted a breach of the binding-over order.

The limitation of English cases, as authority, can readily be appreciated by using one of these

examples. Assuming a person is bound over under the Queensland Act, having threatened

violence to another person, it defies common sense to suggest that an episode of transvestitism,

committed during the period of the order, should render him liable to criminal punishment.

A much more appropriate guide to the content of “good behaviour”, for the purpose of the Act, is to

be found within the South Australian cases referred to above.

58 1609, p 22a. 59 1619 edition, pp 171-175. 60 Citing YB 13 Hen VII, Mich, f 10, pl 10 (1497). 61 (1949) 13 J Crim L 226; the lady, it is reported, ran shrieking from the premises. 62 (1951) 15 J Crim L 9; two separate cases, each quite similar, are noted.



~ Notes ~

VIII

Costs

Unlike its predecessor Part VIII of the Justices Act 188663, the PGBA contains no express provision

relating to the award of costs. Section 8 of the PGBA provides:

Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of a prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6 as if such complaint were a complaint in respect of such an offence. In Besgrove v Larsen64 McGill QC DCJ held that section 8 authorised an award of costs to a

successful defendant under the PGBA via the application, through section 8, of section 158 of the

Justices Act. His Honour made two points very clear in relation to such an order:

i) that an award of costs remained discretionary, even though the proceeding was

classified as “civil”, rather than “criminal”, in nature; and

ii) a complaint under the PGBA (unlike a complaint for an offence of a public nature)

could be withdrawn. If the complaint was withdrawn, rather than “dismissed”, there

would be no jurisdiction to order costs. Such a jurisdiction depends upon the

“dismissal” of the complaint.

It would seem logical that both sections 157 and 158 would apply to an application under the

PGBA, and that the scale set out in the Justices Regulation 2004 would also be applicable65.

[Annexure “A”]

Lecture VII 63 See s 208 [repealed]; see also s 25 Summary Jurisdiction Act 1879 (UK). 64 [2001] QDC 144. 65 On the scale, and “just and reasonable” costs, see Durrant v Gardner [2000] QDC 198 (McGill DCJ).



Of Breach of the Peace

and Pacification of the Same

[1] And now by this lecture it is to be seen which things will be said to breach the peace and which not, etc. [2] And learning66 is that there are some things that are against the peace and yet they will not be said to breach the peace of which this statute67 speaks. As if one enters against the peace into another's land and disseises him, or if anyone takes the goods of any other person. These things are not breach of the peace, with respect to this, that any recognisance of the peace made will be forfeited. And yet they are supposed, by use of action upon it68, to be against the peace. But if any recognisance will be forfeited by any breach of the peace, it must be that the act that is done is against the peace, and also done to the person of any person, and it is cause of forfeiture, etc. [3] Item if one threaten another by words, or if he lie in ambush by the highway to beat him, these are not breach of the peace. But if one make assault or affray upon another, it will be said to be breach of the peace; and yet in this case the one can be found guilty of the assault, and the other guilty of the affray; quere how? etc. [4] Item if one is bound in a recognisance of the peace until a certain day, and before that day he beats or maims a person, it will be said to be breach of the peace, and he will forfeit his recognisance. But if one raise the hue and cry69 for another, it is not breach of the peace, even though it is done against his will. But if one imprison another against his will, or lay him in a river in such a way that he is in danger of being drowned, it will be said to be a breach of the peace. [5] Item if one abduct a woman against her will, it is a breach of the peace. But it is otherwise if a person abduct a ward out of possession of another, it will not be said to be breach of the peace. [6] Item if one makes a riotous assembly with a multitude of men, it is breach of the peace. But if one make forcible entry done by himself, and not otherwise, it will not be said to be breach of the peace. [7]

66 sciendum 67 State of Westminster I 68 ie, the Statute 69 crynes ou herere



Item if one steal a horse or other thing, that is felony, yet it is not breach of the peace. But otherwise if a person do burglary, robbery to the person, murder or manslaughter, because in all these cases the peace is broken to the same person, and sic nota diversitatem between theft and these cases, etc. [8] Item if one commit any treason to the person of the King, it will be said a breach of the peace, and yet [f.89b] the recognisance is: quod ipse geret pacem versus cunctum populum domini Regis & precipue versus J de T, and not speak 'of the King'. But for the reason that the act which is done against him who is the principal Head of the Realm, is adjudged in prejudice of all the subjects, and thus against the peace. [9] Item in various cases the battery alone is not done in breach of the peace, but in the way it is done: for instance, one beats his servant, his wife, or his villein, because these persons he can lawfully chastise without breach of the peace. But if he beat them excessively, so as to maim them, or other excessive beating, this will be said to be a breach of the peace. And if he maim his servant he70 can lawfully take leave of him and also have an action of trespass or appeal [of mayhem]. But if his wife should be so beaten she can not leave her husband nor can she have an action, etc. But if a person chastises his villein excessively he will be said to breach the peace and also an enfranchisement of the villein, as if he had maimed him, etc. [10] Item in some cases however the chastisement done be not excessive, nevertheless it shall be said to be breach of the peace; as if he chastises his villein or servant in the presence of the King, or in his palace, as was decided in 27 Lib Ass71 etc. [11] Item if my servant departs out of my service during his term without licence, I can retake him but not chastise him for his departure. But for his bad service I can beat him. But if my wife depart from me, I can retake her and also chastise her for her departure; but the servant will not be [chastised] except for his bad service. [12] Item a school grammar master can chastise his scholars, and a gaoler his prisoners, and so can the usher of the school or the under-gaoler, without any special authority from their masters, and no breach of the peace in this case. But the servant of the gaoler or school master can not do this except by special order of their master; because the under-gaoler and usher have a general authority when they enter into their offices which is sufficient without any other. [13] Item in various cases one can commit battery to a person, and yet none of them has broken the peace; … [14] And in various cases, although the battery may be done with his volition, yet it will not be said to be a breach of the peace if the reason was lawful beforehand; for instance, the King orders Royal

70 ie, the servant 71 27 Lib Ass f 140 pl 49



Justice to be [done] within his realm at his pleasure, and if any person may be hurt in [the course of this] royal Justice, it is not breach, etc, and yet it has been done with intention. [15] Item if one wage battle in a writ of right where the original is good, it is no breach, etc. But if the parties join battle where no original exists beforehand, or after which the plaintiff is non suited in this writ, this joinder of battle will be said to breach the peace if the one hurt the other. But it is otherwise where the Justices may wish to award battle to be done, in this case where [f.90] no such battle lies, as in cases where a child may want to bring appeal of robbery or murder, and the defendant wage battle with the child, even though one of them may be hurt, it is not breach of the peace, and it seems thereby that there would not be any default in themselves, but in the Justices, etc. [16] Item if a person wish to order another person to shoot an arrow towards him, and thereupon the other does so, and hurts him, it is a breach of the peace; because the order was not lawful to start with. But if a person holds a knife in his hand, and another strike him upon his arm to the intent of making him who holds the knife hurt another standing next to him, by force of which he hurt him, it is breach of the peace in the person who caused this act to be done, and not in the person who did the act, etc. [17] And also note that in various cases, one can commit battery to another person, and yet this battery will be said to be breach of the peace in the one who is beaten, and not in the one who committed the battery; as if a person assaulted me and {jeo fue en taunt que jeo puisse pur jeopardie}, and then I make defence and in my defence hurt the other, it will be said to be breach of the peace in him and not in me.

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