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

R v Galvin [1826] NSWSupC 52

reception of English law - counties - Cawdor - evidence - contempt - service of process - Court of Quarter Sessions, jurisdiction - witness refusing to be sworn

Supreme Court of New South Wales

Forbes C.J., 10 August 1826

Source: Australian, 16 August 1826


Thomas Galvin was indicted for refusing to be sworn before the Justices of the Peace at Cawdor, touching certain matters pending before them on the 10th of July last.[1 ]

Mr. John Wylde examined - Is clerk to the Cawdor bench; knows defendant; was present at a certain proceeding which took place before the Magistrates at Cawdor on the 10th July last.  There were two Justices sitting on that occasion, Major Antill and Mr. James McArthur.  The complaint was made by one Fletcher against Thomas Campbell, for selling spirits without a license.  Defendant was produced as a witness before the bench, and refused to be sworn.  The gospels were tendered to him in witness's presence, but he persisted in refusing to be sworn.  The Justices were employed for the space of one hour and a half in endeavouring to persuade him to take the oath.

Cross-examined. - The parties were summoned to attend on the 26th of June, it was on a Monday; but defendant did not appear.  A warrant was issued, in consequence, to compel his attendance, which he subsequently did on the 16th of the ensuing month, when he was tendered as a witness and then refused to be sworn; his excuse for not taking the oath, was that he, Galvin, was intoxicated at the time of the alleged sale of spirits taking place.  Cawdor is on one side of the Nepean River, the residence of the defendant was on the other, and within Campbell Town district.

Re-examined. - Defendant was not intoxicated at the time he refused to be sworn.

John Robinson, a constable, was ordered to summon defendant, to give evidence before the Cawdor Bench; which the latter defendant promised to do, but did not fulfil it.  A warrant being issued to enforc [sic] his attendance.  Robinson served it upon him - but in doing so, stated, that he did not himself touch defendant, but took him before the chief constable.

Cross-examined - Witness left no copy of a summons with defendant; nor did he read it, but merely shewed it to defendant, who said he was willing, and would have attended without a warrant.

This was the case for the prosecution.

On behalf of the defendant several legal objections were taken.[2 ]  The first set forth, that the service of the subpoena was defective - no copy having been left with the defendant - that although he did subsequently attend, it was from compulsion, - his person being taken as in common cases of arrest; and that a witness so forced, could not be compelled to give evidence. - Secondly, that the Cawder Court had no jurisdiction over the offence under investigation, the same being in the Campbelltown district - that on the face of the information it appeared the Sessions had been adjourned from June to July; between which times, the General Quarter Sessions had taken place; and that the adjournment was thereby illegal and void.  The third objection concluded, that the parties alluded to had no power to hold a Court at Cawdor; and that even if they had, the day on which they held this Court, was not lawful.

The Attorney-General replied.  The point to be agitated, was not whether the subpoena was regularly served or not, but whether defendant, being corporally before the Court, had refused to be sworn from any scruple of conscience.  The proclamation of July 1824, was modified by 18th April, 1826; and the jurisdiction of hearing complaints, for selling spirits without due license, given to Justices of the Colony, without being limited to particular Justices residing within particular districts where the offence alleged had been commited.

The Court reserved the p[oin]ts of law.[3 ] - The Jury returned a verdict of Guilty.


Forbes C.J., 2 September 1826

Source: Sydney Gazette, 6 September 1826[4 ]


In this matter His Honor the Chief Justice proceeded to give judgment.  He thought the case might be reduced within a very small compass.  A mistake seemed to have occurred in supposing that the Proclamation of the 18th of April, 1826, was co-extensive with the first Order of the 21st of July, 1824, as to holding of Sessions generally for hearing and deciding cases within their summary jurisdiction.  And here His Honor thought he might rest the case, and say, that as the Order of the 18th of April empowered the Magistrates to hold Sessions for the trial of offences committed by transported convicts only, and did not relate to other matters, that the Court at Cawdor had no power to entertain any other cases, as he was not aware of any Proclamation in which Cawdor was mentioned in connection with Liverpool or Campbell-town.  The offence, of which the defendant before the Court had been found guilty, was of a serious character as an obstruction of public justice.  The Court saved all the objections that were taken on the trial, and which were that the Court at Cawdor had no Jurisdiction over the offence of which they were taking cognizance, and consequently, no right to call on the party to be sworn.  That certain irregularities appeared on the face of the information, in consequence of which, the Court was ousted of its jurisdiction; that the Sessions were held before one Magistrate, who proceeded to enter on the complaint, and issued his summons, which only a Bench could have done; that the Sessions were adjourned, and in the mean time another General Sessions were held, and that thereby the adjourned Sessions merged into it; and further, supposing all other points to be right, the Court had no power to hear the offence, as it was committed at Campbell-town and not at Cawdor.  The Courts in this Colony were differently constituted from the County Courts in England, and His Honor looked upon it, that a Court of Sessions in this Colony, in other respects regularly convened, had a right to entertain any complaint that came before it.  This Colony, for all legal purposes, was but one County - no division had ever taken place by authority of the Crown, and until such was the case, it was virtually but one County, and all the rules which, in such matters, applied to the County of Middlesex, were in force here generally.  The Magistrates in this Country were Magistrates of the Territory, and had jurisdiction throughout the whole Colony, which, until regular boundaries are marked out by order of the Crown, is for all legal purposes one County.  But by the Proclamation of the 21st  of July, 1824, which recites the words of the Act of the 4th of Geo. IV. It was clear that the Magistrates were limited to times and places to be appointed by the Governor, which accordingly, acting on that authority, he did appoint.  The only Proclamation, appointing Sessions to be held at Cawdor, was in April last, by which certain powers were given to the Justices for punishing offences committed by prisoners of the crown, and was not co-extensive with the Proclamation of July, 1824.  The simple question then was, whether there was any jurisdiction over this particular offence at Cawdor.  He thought not.  The Magistrates there had only authority by the Governor's Proclamation to hold Courts for the trial of transported convicts; this was a breach of the local laws, in selling spirits without a licence.  This, then, he was of opinion, was a fatal objection on which the judgment should be arrested.

Previous to the defendant being discharged, His Honor admonished him on the serious consequences of the offence of which, by the unforeseen chance, he had escaped the punishment.  It was to protect the persons and property of the public, to enable them to sleep quietly in their beds, not for the gratification of the Judge, or of the Court, that witnesses were called upon to give their testimony; and, to bring the consequences of such refusals home to the defendant himself, His Honor would only suppose that his house had been plundered, and the persons of some of his family violated, and that, when he had gone before a Court with his complaint, the only witnesses who could have brought the offenders to justice had refused to be sworn, what would he have said?  His wisest course, therefore, would be to return home, and instantly tender himself to give evidence in any cause where he might be called on.

Mr. Rowe stated that he would take care to urge his client to comply with His Honor's admonition, and the defendant was then discharged.



[1 ] The case was reported by the Sydney Gazette on 16 August 1826. On service of process, see also In re McQueen, Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 10 (1830), which Dowling J. summarised as follows: "Where the owner of lands in this Colony resident abroad had employed indented servants in England who could not get paid the Court refused to allow a summons on the Defendants agent in this Colony to be deemed good service."   See also Klenzendorlfe v. Carter, Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 323 (1830): "In an action against Sheriff for false return of a summons of 'Served' against a defendant where the proceedings were set aside by the Court on the ground that the Summons had not in fact been served, Dowling J. refused to receive in evidence the affidavit on which the proceedings had been set aside because the matter of those affidavits was not binding on the Sheriff and he left as a question of fact upon the parol evidence to the Assessors whether the Summons had been duly served."

This was not the only problem in the law of evidence at this time.  On 12 August 1826, the Australian referred to "the decision of the Chief Justice, delivered several weeks ago, relative to the admissibility of witnesses who may have been present in Court, during the trial on which they are called upon to give evidence.  The Chief Justice stated, that a witness remaining in Court, after all witnesses had been ordered to withdraw, was not a ground for the to[t]al rejection of his testimony.  It was proper that he should be heard; but, that the degree of credibility, to be attached to him, was a matter to be left entirely with the Jury, who would, of course, consider the breach of the order of which he had been guilty."  The Australian said that this was the best course to adopt because refusal to hear evidence in these cases would give prisoners grounds of raising doubt about the verdict.  The innocent would also be put at risk if the evidence were rejected for this reason.

[2 ] Mr Rowe appeared for the defendant: Monitor, 25 August 1826.

[3 ] The Monitor, 25 August 1826, said that "The Chief Justice observed, that the cases cited in support of the first objection raised by the defendant's Counsel are, whether Courts of Law have been called upon to attach witnesses by summary proceedings for not attending Courts in obedience to its progress.  The case before the Court is, a refusal to be sworn, the defendant being de facto before the Court, and produced as a witness.  A witness before the Court, produced as a witness, is bound to take the oath administered to him.  A witness casually in attendance in any criminal case is compellable to be sworn and give his evidence upon mere motion in Court, then and there as a matter of fact, also it appeared that the defendant did not refuse to be sworn, by reason of any one complaint of his having been brought improperly before the Court, but because he said he was intoxicated at the time the transaction took place, upon which he expected to have been interrogated, But, [sic] non constat, what question would have been put to him.  It would have been time enough to have mentioned his scruples in case he had been asked any questions relative to occurrences which took place at that time he conceived himself incompetent to answer; but he refused to be sworn altogether, an offence of itself, supposing it to have occurred in a cased in other respects before a competent tribunal."

"His Honor reserving the points of law relative to the authority of the Magistrates, and the proclamation of the Governor for further consideration, put the case to the Jury. - Verdict, Guilty."

Non constat: it does not follow.

The Sydney Gazette's version of this speech was very similar: 16 August 1826.

[4 ] See also Monitor, 8 September 1826; Australian, 6 September 1826.  The arguments of Rowe and the Attorney General on 1 September 1826 were summarised in the Sydney Gazette, 6 September 1826.


Published by the Division of Law, Macquarie University