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

Criminal procedure case [1825] NSWSupC 46

indictments - criminal procedure - supervision of inferior courts - criminal appeals

Supreme Court of New South Wales

Forbes C.J., 3 October 1825

Source: Australian, 6 October 1825


Writ of Certiorari - Quarter Sessions.


On the motion of Mr. Wentworth, stating that several indictments had been removed from the Quarter Sessions into the Supreme Court, and praying that the Court would prescribe some course of proceeding upon such indictments in the Supreme Court, ----[1 ]

The Chief Justice said, that the Court could not lay down any rule of practice: as the proper mode of proceeding was rather to be considered as a deduction from the principles of law, than as falling within a rule of practice.  He felt, however, the less difficulty in stating his opinion upon the proper course to be pursued in cases of indictments removed from the Sessions into the Supreme Court, as from the peculiar structure of the Court, no case in point would be found in the books; and, it was not unfrequent for the Courts in England, in former times, as appeared by the early reports, to intimate what would be their opinion under supposed circumstances, with the view of facilitating the path of justice over ground not sufficiently settled and defined.  That the Supreme Court of New South Wales possessed the power of removing indictments was clear, both by the express terms of the act, and the general principles of law.  The Court would of course exercise a sound discretion; and, if it should appear that an impartial or a sufficient trial could not be had elsewhere, it would restrain the prosecutor from proceeding in the Court below (3 Bl. Com. 320).  So far it would act in perfect accordance with the practice of the Court of King's Bench in England; but, the question was whether this Court could proceed to try an indictment removed from the Sessions, and if it could not, what ulterior course of proceeding was left open for the prosecutor.  He did not consider that the Court could try an indictment, as such; it being provided by the act under which he sat, that the form of trial in all criminal cases should be by information, in the name of the Attorney General, or other officer duly appointed for such purpose by the Governor.  But, although this Court could not try an indictment, it was still within its power to open the door of justice to the prosecutor, and that upon the soundest principles of law.  The pendency of one criminal prosecution was no plea to another (Doug. 240).  Supposing that an indictment should be pending in the Sessions, it would still be within the discretion of the Attorney General to proceed by information in this Court against the same party, and for the same offence; and it would be within the discretion of the Court to allow a private prosecutor to proceed in the same manner.  In the exercise of its discretion the Court would be governed by circumstances. [sic] and would require the prosecutor to suspend all other remedies.  There was no substantial difference where the indictment was removed by the defendant; for, if the Court should be of opinion that there was sufficient ground to prevent the prosecutor from proceeding in the inferior Court, it would still be open to him to proceed by information in the Crown Office; if he desired to proceed, he must conform to the practice of the Court; and if he would not, the Court would be bound to restrain him for ever, if necessary, by postponing its judgment upon the certiorari.  The first rules of justice and the analogies of law would bear out the Court in restraining a prosecutor from proceeding in an improper Court, in the same manner that it would from proceeding without proper testimony (1 Cowp. 179).  Reasoning from principle, he did not feel the force of any difficulty, in the removal of indictments from the Sessions into the Supreme Court, and accomplishing by indirect means the same substantial ends of justice, as if the form of trial in the Supreme Court had been left to follow the ordinary course of common law.  After the first step, the case was cleared of every difficulty; because it was laid down in the books of practise, because that whether the prosecutor or defendant removed the indictment from an inferior Court into the Superior Court in England, all subsequent proceedings were to be conducted in the same manner as on informations granted in the Crown Office for misdemeanors (Hand's Prac. 40-3).



[1 ] Reported by the Sydney Gazette, 6 October 1825.

Published by the Division of Law, Macquarie University