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

R. v. Howe [1824] NSWSupC 2

criminal procedure - prosecution by information - private prosecution - criminal libel

Supreme Court of New South Wales
Forbes C.J., 17 June 1824
Source: Sydney Gazette, 24 June 1824 [1]


In the course of the last week several cases of misdemeanor have been brought before the Criminal Court. One of them, a case of private libel, was conducted at the expence of the private prosecutor, and by his own legal adviser; the others were prosecuted at the charge of the Public. We understand that, on more than one occasion, the Attorney General [2] has submitted observations to the following effect, on this distinction, to the Court. He has stated, that the subject seemed to require much consideration with reference to public and private interests; and that the reasons which he at present felt to be proper for him to be guided by, were open to the examination and correction of His Honor the Chief Justice, of the Gentlemen who had practised in the Court, and of the Public.

The late Act of Parliament, introducing certain new forms of criminal procedure into the Colony, is expressed in general terms:- "That all crimes, misdemeanors, and offences cognizable in the Supreme Court, shall be prosecuted by information in the name of the Attorney General." [3] - The question arises, What is the force of this enactment? Where the law and customs of England are not changed, they must be taken to be the rule by which, as nearly as circumstances permit, we must be guided. By these words nothing more seems to be done, in regard to expence, than the substitution of informations for indictments presented by a Grand Jury. The Attorney General, therefore, of the Colony, in executing the act, must look to the law and practice at home as to indictments, and, in some degree, to the former practice here. [4] - All informations being to pass in his name, it seemed to him necessary to form an opinion on the merits of each case; and that after examinations, he must allow them or not, according to their several natures, and with the incidents as near as possible to which they would severally be subject, if instead of informations they had been indictments. In this extremely delicate task he would be much relieved by the Magistrates having first examined most of the cases. Where the proceedings should commence in a manner similar to the ex officio informations, and to those in the name of the Master of the Crown-office, the known rules which govern them in England, would, with the necessary alterations, as to forms, be applicable here.

In some cases, as in that of libel before alluded to, there seemed little doubt of the propriety of leaving the trial to the exertions of the private prosecutor; - such would be the course in England, although the King's name would be used. The question is not merely one of expence; several further considerations deserve attention upon it. Here, however, more cases seem to have been prosecuted from time to time at the public expence than at home - and probably for good reasons; but, looking to the establishing of a system of Criminal Law under the Act as in some measure new, it is of the greatest possible importance to introduce the various arrangements with caution.




[1] It is not certain that this is the name of the defendant. The report of the case refers to a private prosecution for libel "last week"; the only libel prosecution mentioned in the Sydney Gazette for the week preceding 24 June 1824, was an action against Howe, the publisher of the Gazette. It is possible, but very unlikely, that there was another private libel prosecution in the same week, which was not reported. At this time, the Gazette was the only newspaper in the colony.

[2] Saxe Bannister.

[3] The reference is to (1823) 4 Geo. IV c. 96, s. 4, which states "That all Crimes, Misdemeanors, and Offences cognizable in the said Courts respectively, shall be prosecuted by Information in the Name of His Majesty's Attorney General, or other Officer duly appointed for such Purpose by the Governor or Acting Governor...". The "said courts" are the Supreme Courts of New South Wales and Van Diemen's Land. Despite this, the convention in New South Wales, followed here, was to record these cases as "R. v. [defendant]" rather than "Attorney General v. [defendant]". There was no provision for grand jury investigations in 4 Geo. IV c. 96; on jury trials see R v Magistrates of Sydney, 1824. On procedure by information (which lasted until 1883, when it was replaced by indictments), see J.M. Bennett, A History of the Supreme Court of New South Wales, Law Book Co., Sydney, 1974, 69-70.

[4] Serious criminal trials were formerly held before the Court of Criminal Jurisdiction, which consisted of a Deputy Judge Advocate (known generally as the Judge Advocate) and six military or naval officers. Prosecutions were conducted by the Judge Advocate, who also wrote down the charges: see (1787) 27 Geo. III c. 2, s. 1, and First Charter of Justice for New South Wales, Letters Patent, 2 April 1787. The Second Charter of Justice (4 February 1814) dealt only with civil matters; it created the first Supreme Court which began sitting in 1814 but that court had only civil jurisdiction. The old Court of Criminal Jurisdiction continued in operation until it and the first Supreme Court were both replaced by the second Supreme Court, which was granted both civil and criminal jurisdiction: see (1823) 4 Geo. IV c. 96, and the Third Charter of Justice (Letters Patent, 13 October 1823). The first criminal case heard by the second Supreme Court was a murder trial (R. v. Murphy and Sullivan), conducted before Forbes C.J. on 10 June 1824: Sydney Gazette, 17 June 1824. On the old Court of Criminal Jurisdiction, see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, chap. 4. The three Charters of Justice are reproduced in J.M. Bennett and A.C. Castles (eds), A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, Law Book Co., Sydney, 1979, but the most authentic printed version of the Third appears to be that in the personal papers of Forbes C.J., Mitchell Library, A1381, p. 66.

Published by the Division of Law, Macquarie University