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

R. v. Johnson [1824] NSWSupC 7

bail - habeas corpus - killing of Aborigines - Bathurst

Supreme Court of New South Wales
Forbes C.J., 2 and 6 July 1824 
Source: Sydney Gazette, 8 July 1824

 

THE BLACK NATIVES.

An application was made on Friday last [1] to the Supreme Court, to admit to bail Mr. John Johnson, one of the six persons "charged (as the committal stated) on suspicion of the murder of three black women." - These women were said to be original natives of the Colony, and their murders, or deaths, were supposed to have taken place, if at all, in the neighbourhood of Bathurst. The grounds of the application, as stated by Mr. Rowe, were - First, that there was so much informality in the warrant of commitment, as to render it probable that no deaths had taken place. This was supported by an affidavit, averring, that no Inquest had been held by the Coroner, although the alleged scene of murder was only about seven miles from his residence; upon which oversight of that officer, if the outrage complained of were committed, several remarks were made in Court.

The second, and chief ground of this application was, that the case against John Johnson was so slight, that his innocence was much more probable than his guilt. He was brought into Court by Habeas Corpus. A difficulty arose as to the mode of bringing before His Honor the Chief Justice the depositions on which Mr. Johnson was committed by the Magistrate, in case the Chief Justice should not deem the committal sufficiently informal to warrant his granting bail upon it. In pursuance of the former practice of the Colony, these documents had been transmitted to the Attorney Geueral. [2] [sic] This practice seemed to have been borrowed from the practice in England, directed by certain ancient Acts of Parliament, although, under the modifications rendered necessary by our present institutions, the sending to the Attorney General depositions, taken on committal for the Supreme Court, was stated to be in all respects convenient and tending to the good administration of criminal justice; but the nature of the charge, in this case, rendered a disclosure of the contents of the depositions as improper by the Attorney General, as that of the evidence before a Grand Jury would be. The Court, however, thinking that the committal was not sufficiently defective to authorise bail, it was agreed by consent, that His Honor should read the depositions in order to determine on the application, without any further disclosure being made.

On Tuesday [3] His Honor, after much deliberation, delivered his opinion, that the prisoner could not, upon the face of the depositions, be admitted to bail. But the prosecution, His Honor observed, would be required to be had with the least possible delay. [4]

The Court adjourned sine die.

Notes

[1] 2 July 1824.

[2] Saxe Bannister.

[3] 6 July 1824.

[4] The trial (for manslaughter rather than murder) was held on 6 August 1824: R. v. Johnston, Clarke, Nicholson, Castles, and Crear, 1824. All the defendants were acquitted.

Published by the Division of Law, Macquarie University