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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Sutter [1808] NSWKR 4; [1808] NSWSupC 4

rule of law - seditious libel - Rum rebellion, against Governor Bligh - courts, legality of in rebel period

R. v. Sutter [1808] NSWKR 4; [1808] NSWSupC 4
Court of Criminal Jurisdiction
Kemp A.J.A., 8 December 1808
Source: Sydney Gazette, 15 December 1808, 2 [1]

         On Thursday morning at ten the court assembled, when Mr George Sutter, of Baulkham Hills, settler, was placed at the bar, and indicted, for having directed unto his honor the Lieutenant Governor a letter, containing certain contumelious expressions, with intent to bring into contempt his Honor's authority in this territory, etc.

           The indictment being gone through, and Mr Sutter called upon to plead, he replied.

           "Gentlemen, I deny the legality of this court. You may do with myself as you please. My unfortunate wife and family I leave to the mercy of God until peace shall be restored in the colony. I have nothing more to say."

           The Judge Advocate then addressed the prisoner as follows.

           "Mr Sutter, you are called upon to plead to your indictment; and whatever you may have to offer in your defence will be attentively considered of. I again ask, are you guilty or not guilty?"

           Prisoner. "Sir, all that I have to say I have already said I deny the legality of this court. My allegiance is due to Governor Bligh, and Governor Bligh alone, and every drop of blood within my veins prevents me from ever acknowledging the legality of this court. You may do with me as you think proper."

           The Judge Advocate. "Mr Sutter, it is my duty to acquaint you, that it is provided by Act of Parliament, that in case a prisoner shall refuse to plead to his indictment, the effect will be the same as if he pleaded guilty. Once more I call upon you. Are you guilty or not guilty?"

           Prisoner. "I stand as before. I have said all I have to say. You are to do with me as you think proper."

           The court ordered to be cleared and in about 20 minutes re-opened, when the Judge Advocate addressed the prisoner as follows:

           "Prisoner at the bar, in consequence of your refusal to plead to your indictment, the court, in conformity to Act of Parliament, have found you guilty, and sentence you to be imprisoned six calendar months, and to pay a fine of one shilling."

Note

[1] This trial is one of several in which the defendant rejected the legality of the post-coup rebel courts. The court in this case consisted of six officers and, most importantly, the return of Atkins to the bench. Major Joseph Foveaux commented in relation to the restoration of Atkins to the position of Judge Advocate:

"I had no choice left but to restore Mr Atkins, or expose the public to the serious inconveniences which must inevitably have followed from leaving so indispensable a department vacated.

"I had previously offered it to such persons as I though capable of properly discharging its various and important functions; but the great trouble and responsibility attached to it, the inadequate recompense, and the uncertainty of its duration, induced them to decline it, and necessity alone obliged me to have recourse to Mr Atkins." (See Evatt p. 186 citing Historical Records of New South Wales, 39-40).

Evatt suggests at p. 189 that Bligh regarded the reappointment of Atkins as a "plan of the rebels to gain over those persons who had been turned out of office to accept their former appointments". This case was an "opportunity ... to Mr Atkins to show his principles as a rebel judge".

While in jail, Suttor reflected on his own demise and the current state of the colony (see Evatt, 189-190 citing Historical Records of Australia, 136-137):

"I would ask any unprejudiced man what chance of justice I could expect, when out of respect and duty to your Excellency I had given offence to Colonel Foveaux; he appoints six of his officers to try me, men immediately under his command. This is contrary to every principle of justice. It is true, while there is a Governor independent of the military, there is an appeal beyond them; but in the present unfortunate state of the colony there is none, and all causes, both civil and criminal, will be decided agreeable to their interest."

On the broader causes of the rebellion Suttor observed at H.R.A., 136:

"One of the first causes of our present evils was the officers of the establishment connecting themselves with the convict women, with whom they think it no disgrace openly to co-habit and appear in public as though they were lawful wives; and, indeed, these women have a much greater influence over them than a virtuous woman, and instigate them to things which a virtuous woman would be ashamed of. This brought on a connection with the other class of the convicts, and laid the foundation for dealing and extortion, and made the interest of the officers and convicts inseparable. Another evil had its root in the enlisting convicts into the New South Wales Corps. How is it possible that men who have for the most part, from the earliest period of their lives, been accustomed to violate law and property can become the guardians of either?"

See also Court of Criminal Jurisdiction, Minutes of Proceedings, February 1801 to December 1808, State Records N.S.W., 5/1149, p. 541; H.R.A., series 1, vol. 7, 132-133,136-137; H.R.N.S.W., vol. 7, 39-40; Evatt, Rum Rebellion, 186-190.

For other cases concerning the coup against Governor Bligh, see R. v. Gore, 1808; R. v. Macarthur, 1808; Crossley v. Johnston and others, 1810.

Published by the Division of Law, Macquarie University