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

R v Rossi, Principal Superintendent of Police [1826] NSWSupC 43

criminal procedure - compounding of felony - magistrates, corruption - supervision of inferior courts - receiving stolen goods

Supreme Court of New South Wales

Forbes C.J., 20 July 1826

Source: Australian, 22 July 1826

 

On Thursday last a Rule was moved[1 ]for in the Supreme Court to shew cause why a Criminal Information should not be filed against the Principal Superintendent of Police, on affidavits stating that he had induced, or endeavoured to induce, a prosecutor to forego a prosecution against the accused, for reasons which, though they might be satisfactory to himself, were not exactly so to the injured party - The Chief Justice, when the application for the Rule was made, inquired if notice of the intention to submit the motion to the Court had been served on the Defendant.  In reply, it was suggested to his Honor that the act complained of should be considered as not having been done in the execution of his office.  On the affidavits, however, being read, the Chief Justice thought that what was really done in the execution of his office was so mixed up with that which it was attempted to separate from it, as to induce him to require the terms of the statute to be adhered to.[2 ]

In the course of a desultory conversation, which took place while this matter was pending, the Attorney General[3 ]intimated to the Court, that the defendant had had notice; for he had had that sort of public notice which rumour gives; and, indeed, from the parties who brought this matter forward.  The Attorney-General was immediately given to understand that, as far as regarded Counsel, what he was stating was utterly destitute of truth.

We have been induced to make this brief allusion, to the application to the Court, in order to prevent exaggeration on any side, and meet the absurd rumours which have for some time been afloat.

 

Forbes C.J., 1 August 1826[4 ]

Source: Monitor, 4 August 1826

 

The Court was occupied in hearing the arguments of Counsel in the matter of the King, at the instance of Mrs Reynolds, against Mr. Rossi, the Superintendent of Police, on a motion for making the Rule absolute which had been granted, as reported a few days ago.  By the affidavits of Mrs. Reynolds and others, it appeared that a woman had been charged before Mr. Rossi with having lace in her possession which had been feloniously stolen from Mrs. Reynolds; and that, from some peculiar circumstances connected with this women, Mr. Rossi had contrived to have the case dismissed; and further, in order to appease Mrs. Reynolds, had procured her (Mrs. R.) to accept of a twenty dollar note, and that Mrs. R. had taken this note with a view of establishing a case of corruption against the Superintendent of Police.  Captain Rossi, on the other hand, swore, that he had repeatedly asked Mrs. Reynolds, in the course of an investigation, which, according tot he statement of both parties, had been conducted in a private parlour, and not in the public office - if she thought the accused had stolen the articles in question, and if she wished the case to be proceeded with, and that she always replied, no, and seemed anxious that the accused should be discharged.  Mr. Rossi also swore, that he had not been influenced in what he did in any way whatever, by any one, but that throughout the whole business he had been actuated with the most conscientious feelings.  Other affidavits were put in, contradicting, in some minute points, the affidavits in support of the Rule.

The Attorney General submitted to the Court various reasons why the motion should not be granted.-  The learned Gentleman recapitulated the subject of the charge brought against the defendant and the replicatory affidavits of Captain Rossi, which set forth the particular circumstances of the case, with a minute account of every incident connected with it, and a detail of his feelings and impressions, and the motives actuating him on the occasion.  The affidavits of the Chief Constable, Israel Chapman, and Joseph Raphael, in different measures corroborative, were read, as also of Thomas Amsden and F. Garling, Esq.  The Attorney General was glad that the affidavits had been read, as they opened to the Court new facts of law, which a selection of passages would not have done so fully.  The public were of opinion that it was the duty of law officers to carry cases into Court - sometimes however it was found necessary to reject them - it would not now be difficult to extract the case from the two bodies of affidavits before the Court; it was clearly his opinion that the woman would not have brought the case forward without she had had an adviser.  The present case was not criminal in form, it was one of a mixed class of cases where forms were in a considerable degree criminal, yet, on some important principles, of a civil character.  In the Court of King's Bench fixed rules are determined and regulated by an Act of the 4th and 5th of William and Mary, ch. 18, which recited the evil that arose from the right of bringing cases without leave of Court - this enactment was made to prevent malicious prosecutions, which were frequent from the yielding of persons to the effect of passion rather than a love of justice.  He would, as the case proceeded, refer to a variety of bearings on it; in his opinion, all rules had been violated by the Prosecutrix - he would not stand on a nicety of time, inasmuch as the rules of Terms were not so strictly applicable here as in England - the lapse of time was not arising from pressure of business, but from the fact of this Drama having been delayed from time to time, which gave it the character of one of those malignant prosecutions to which the Act of Parliament referred.  The subject of the present charge took place on the 16th of April, a charge of compounding felony and an inferential charge of corruption - compulsion also was included.  Some degree of respect ought to be paid to the act of a public officer, but if it should appear that there was a dissuasion from an honest prosecution, such a charge would be equally honest; but from the affidavit of Harriet Weavers it was distinctly clear that no felony was attributed to Mary Anne Cole - by her own shewing it appeared that there was an anxiety to sift the matter to the bottom.  In reply to the interrogatory whether Mrs. Reynolds believed that the woman Cole had stolen the property, she said distinctly, "No," and that "she did not know," - Upon her own shewing it was but a misdemeanour.  A commentator on Blackstone had in a note stated that compounding a misdemeanour was not an offence - 4 Blackstone's Rep. 836, Note 3, Ed. 15, 1819 - inasmuch as a remedy at common law is open to recover damages - he does not depend on this as correct.  It was quoted from Noy in Viner's abridgment, vol. 15, page 17, sec. 5. - the Court observed of Justices that they might persuade and conciliate petty quarrels, but in a fine to the King, compounding was illegal; that principle was good in this case, and by it, it appeared, that Mrs. Reynolds was the true compounder and not essentially the Magistrate.  In the case of Williams, Captain Rossi said most distinctly he knew of no such charge.  In going through the affidavits and drawing a conclusion of the truth, it would be evident that the affidavit of the Prosecutrix was not worthy of credit - her mind was in a miserably disturbed and malicious state - she was acting under a delusion, and he was sorry he had occasion to say this much of any woman, but her conduct in this case justified the assertion.  She did not appear before the Court as the oppressed Prosecutrix - the means of going to a Grand Jury were open to her but she had not done so, though three or four dollars would have taken it there.  He could, though the privilege was a new one, fearlessly affirm that there was no ignorance on her part, - all circumstances taken together would impress the Court with the fact of these matters being on her mind in a variety of shapes - Raphael's deposition stated that on the day of examination she evinced kind feelings towards the prisoner, and was anxious to get her off, and on leaving the parlour of the Superintendent she said "all was right."  A circumstance occurred in May which raised her choler and gave additional violence to her feelings - the fact alluded to in Chapman's deposition - the proffered return of some muslin purchased by Mrs. Rossi which occasioned a sort of ill feeling - but still she appeared to have a conviction that the Magistrate had acted justly.  The affidavit of one Meech was read, and he must take occasion to remark that the looseness of swearing evident on the face of it was highly discreditable to him - and how greatly he must have got into the affairs of Mrs. Reynolds was evident when he had sworn directly contrary to the truth.  The Court would not send a Magistrate before a Tribunal with the disadvantage of a previous sentence - on such a shewing it was of extreme importance that before whatever tribunal he should appear, the colour cast on him should be dissipated - his own explanation and assertions were highly creditable to him; a sick child in the arms of the prisoner "had excited his compassion - had induced him to wish her innocence, and might have had some influence on his feelings, - he could lay his hand on his heart and say, (morally and honourably speaking,) he had done no wrong," - if these assertions were not credible, it would be extremely prejudicial to him - he was content to admit that there had been irregularity - he was disposed to go so far as to allow there had been impropriety in not sending her to trial, either before a Court, or as a prisoner of the Crown before a Bench for disposal - if Christian's Ed. of Blackstone was correct he had admitted too much.  When a pitiable object was before a Court, could a Magistrate not act as the defendant had done, without an imputation of dishonourable motives, and in order to bring the Court to a conclusion that he had acted honourably, for he was disposed to allow that in Courts of Justice there should be no exercise of privatr [sic] feeling, yet, if he had wished secrecy, many private channels might have been found to convey the 20 dollars - it was this that designated the criminality or purity of intention - the transaction in a private room was not peculiarly indicative of secrecy - there was perfect openness in the whole matter - a perfect innocence of intention - a rebuttal of corrupt motives - he by his own necessary means built up a case against himself indicative of the purity of his mind - there was an irregularity in not hearing the case through - he did not mean to advocate discussion in a magisterial court, that was highly improper, still there was a slight irregularity.  If there was any benefit His Hononr's [sic] superior judgment would allow it to the defendant - with these views and only with reference to the granting the motion, he should conclude his remarks.  Costs the learned Gentleman observed would not attach to his side.  The case called for punishment.  In Barnwell and Alderson's Reports the laws relative to the unpaid Magistracy of England were fully laid down.  The defendant was not of that denomination yet stood much in the same relation.  Magistrates were accountable to the Court for their conduct, but when in an error, the act was not so strictly considered as the motives, whether honest or biassed by fear or favour - favour to one party against another in contradistinction to error or mistake.

Dr. Wardell in opposing the rule, felt himself called on to answer the observations which had fallen from the learned counsel.  It would be extreme bad taste, he conceived, to follow him through all his erratic remarks; yet those of a preliminary nature he would briefly apply himself to.  The Attorney-General had been about to indulge himself in his opinions as to gentlemen at the bar accepting cases; he (Dr. Wardell) would now give his on the subject.  In advocating the present case, the propriety was obvious in two points of view; he would bring it forward for the sake of the prosecutrix if she felt aggrieved, if justice had been denied; and if so, to shew from what source if the case could be made out - if it could not, to shew her the mistake she laboured under : if it were possible for him to exercise an election as to what cases he would bring forward, this is one he most certainly would.  The Attorney-General had favoured the court with law of a century standing; it was certainly very true, that malicious prosecutions were less frequent when informations had to be applied for.  Many people there were, who would be anxious to submit any imaginary case which they might trump up; there might be found those who would seek to harrass and oppress parties.  This prosecutrix came under a sense of wrong, had a grievance to complain of, to shew that she was compelled to apply for the interposition of the court whether the application could be entertained or not, there could not exist a doubt that the rule should be made absolute.  The law that had been presented to the court was on the authority of a learned lawyer; a commentator on Blackstone, who never held a brief in his hand.  On his authority, the court was called on to discharge the rule, and the authority of the Chief-Justice of Ely was opposed to the learned Viner.  He need not, however, enter into this part of the argument, but leave it as the Attorney-General had done.  If obstructing justice was a misdemeanour only, it was a most accommodating principle.  On the affidavits themselves, a case of felony had been made out; with respect to time elapsed, and the argument built on it, he would shew in a few words that the prosecutrix came into court blameless.  The original case occurred in April; these circumstances which Captain Rossi suggests as provocative took place in May, and it was long previous to that she applied to have her case brought forward, therefore this argument entirely failed.  The affidavits had been made by one who had treasured up in her mind all the incidents connected with the case.  There was nothing to interrupt her in the remembrance of all the items.  On the part of the defendant it was distinctly shewn that a multiplicity of business daily intervened - thirty, or forty, or fifty cases of felony, &c. were brought daily before him, which drove it from his mind, to a remembrance of which he was called only by Mr. Carter.  This was all second-hand evidence and brought back under doubtful circumstances, and not in that clear unmingled manner it would have been, had the circumstance never escaped the memory.  It was not npon [sic] his own remembrance of facts, but of others - and by those means only did he form an affidavit.  To which, therefore, did credibility attach? if there was accuracy on one side, there must be inaccuracy on the other, not from want of integrity in the parties, but a defect in particulars.

On comparing the affidavits (the learned Counsel continued,) Mrs. Reynold's would be found to contain every material point; and in which they were most materially supported.  It was agreed on both sides that a party had been brought before the Superintendent of Police upon a charge, and instead of going through the ordinary course of investigation had been withdrawn into a private room - was it to discover accomplices in an extensive robbery?  Was it to spare the feelings of the party placed nnder [sic] some most peculiar or painful circumstances?  Was it to keep secret facts that it would have been improper for the public at the time to have been made acquainted with?  Was it the critical situation of the party charged to whom such might be a source of irreparable injury if it went abroad?  It could only have been on these reasons that the defendant could have acted as he had done without some shade of suspicion attaching to him.  But the Court were not left in ignorance of the facts which transpired in the apartment - there was a particular relation of the whole.  The Prosecutrix described minutely to the Court her feelings - the sort of satisfaction she expressed upon the proposition of compromise, which being urged on the plea of the prisoner having in her arms an infant, she replied, "What am I to do with my six children?" - but the proposal being repeated, she said, "If you are satisfied, I must be so," - and again to Raphael, "All's right," - Now here was a wide range to draw an inference of her satisfaction from, from one extremity to the other - it might be sullen or satisfactory - he collected a contrary deduction - it appeared to have been said in a jeering way.  She found it in vain to press her charge.  She insinuated that it was all right in one sense, if not in one way it would in another; if she was not able to obtain justice in one Court she had another to apply to.  Why was not Amsden called to prove that the 20 dollars were not accepted cheerfully - that there was still a disinclination to compromise - that there was dissatisfaction still evident.  Had the money not have been accepted there would have been not tangible proof of corruption.  Amsden might have been brought forward to make a kind of skeleton affidavit, but nothing more substantial without the proof of the tender of the note.  The learned Attorney General had, if he (Dr. Wardell) understood him right, admitted all that was necessary to constitute the case - a denial of justice! and yet the Court was told it was done conscientiously! and with a feeling of correctness! was it credible that a Magistrate of even six months standing could be found to come forward and say on oath that compounding felony was conscientiously done?  Could it be for a moment, he would ask, believed, that such a compromise could have been effected, and so many consents should have existed, and that still the Superintendent of Police and Mrs. Reynolds could have believed the prisoner Cole not guilty - that they should have believed her innocent when it must be known to all that she was necessarily otherwise - it must be absolute nonsense such an idea - that a magistrate could so have glided into error.  When His Honour recollected the circumstances under which the affidavits were made, it would be impossible to come to any other conclusion than that the present application was properly made - it would be a second denial of justice were she sent from Court without having the Rule made absolute.

Mr. Wentworth at considerable length followed on the same side.

The Chief-Justice finding that the affidavits had been filed since he had entered the court, deemed it necessary to look over them with much nicety and attention, which from their voluminous nature would necessarily occupy some time.  The case was one of extreme delicacy, but not as it regarded the position of the parties, because a like measure of justice should be meted to all indiscriminately.  For the furtherence of justice the court was open for informations, but in reference to English courts it was placed in extreme difficulty.  In respect to the legal points his honour observed, a receiving of stolen goods was set forth; ergo, that was not felony.  If the body of facts did not constitute a prima facie case, it would be difficult to grant the application.  He conceived that the case varied as a magistrate from a private individual, but the facts necessary for his discussion were, 1st. - Was there sufficient to create felony?  And 2nd. was there a sufficient justification shewn as to the inducing motives that had actuated the Superintendent of Police?  In reference to the high situation of the defendant, it would be incumbent on him to use all expedition, and name an early day for giving his decision.

 

 

Forbes C.J., 8 August 1826

Source: Sydney Gazette, 12 August 1826

 

The King, on the prosecution of Mary Reynolds, v. F. N. Rossi, Esq.[5 ]

The Chief Justice. - In this case, a rule was granted, calling on the defendant to shew cause why a criminal information should not be exhibited against him, on a charge of procuring one Mary Reynolds to accept a 20-dollar note, for compounding various felonies previously committed by one Mary Ann Cole.  A motion was made to make the rule absolute, at which time a number of affidavits, on the part of the defendant, in answer to those which had been before filed by the prosecutrix, were laid before the Court, and, after hearing the arguments of Counsel, the Court deferred its decision to see how far the application could be sustained upon the matter contained in the several affidavits.  I have carefully looked through all the affidavits, as well on the part of the plaintiff as of the defendant, and, upon a full consideration of all the facts contained therein, the Court is now about to pronounce its judgment.  This case must turn upon two main principles, whether there is corruption on the part of the Magistrate, disclosed upon the shewing of the prosecutrix; and also, supposing such to be shewn, whether, upon the whole face of the case as presented to the Court, there is raised a sufficient corpus dilecti[6 ]to grant the rule prayed for.  The principal affidavits in support of this application, are the affidavits of Mary Reynolds, of her daughter Harriet Weavers, and of one Wm. Henry Meach.  The affidavit of Mary Reynolds, in substance, sets forth, that for a considerable time she was in the habit of losing various articles of property from her shop, and amongst other things a parasol belonging to her daughter Harriet Weavers, in March, which, in the following month, April, was detected in the possession of a woman named Mary Ann Cole.  She declined giving any account as to how she came by it, in consequence of which, Mr. Amsden, Assistant Superintendent of Police, was sent for, and after some enquiries, he proceeded to the house of a person named Pate, where in some drawers, said to contain wearing apparel belonging to Mary Ann Cole, were found several remnants of lace, also identified as the property of the deponent.  The affidavit further goes on to state, that after the women, Cole, was taken into custody, and brought before the Superintendent of Police, certain circumstances took place between the deponent and the Superintendent of Police, and upon these particulars the merits of the case must depend.  The affidavit of Mary Reynolds further goes on to state, that Harriet Weavers, having been sworn, stated that the parasol was her property; she could not, however, say who had stolen it, but that Mary Ann Cole had been in the habit of coming back and forward to the shop about the time that it was lost.  That Mary Ann Cole being interrogated, stated she had purchased it from a servant in the house of the deponent, and had given four dollars for it.  The deponent then goes on to state, that after this, she retired with the Magistrate to his parlour, when some conversation took place, the substance of which is stated to this effect, that he asked the value of the property which deponent had lost, and upon her stating that it amounted to £30 or £40, he asked whether £5 would not satisfy her, upon which she replied, that if he was satisfied, she supposed that she must, or words to that effect.  The affidavit further goes on to state, that at this examination, Mary Ann Cole observed, that she had no stolen property in her possession, when the deponent's daughter said she had, and shewed some lace on the child's cap which she had in her arms, that she said was part of the property stolen from her house, and that Mary Ann Cole being asked to give an account of it, stated that she got it from Mrs. Brisbane; that on being asked what Mrs. Brisbane, she said Lady Brisbane; and deponent further states, that Lady Brisbane had left the colony long before the lace had been stolen from her shop.  The affidavit goes on to state, that the deponent believes the unwillingness on the part of the Magistrate to have arisen on account of the child which Mary Ann Cole had in her arms, and which deponent has heard, and believes to belong to a gentleman who was in the habit of intimacy with the defendant, and a constant visitor at his house.  That on the following day, a person came to deponent's house with the parasol, which deponent refused to receive, and that shortly after a £5 note was tendered to her, which she took as the only proof she could have, except her own personal testimony, against the defendant.  This deposition is confirmed in all its main particulars, by the deposition of Harriet Weavers.  In aid of these two depositions, there are also the affidavits of Wm. Henry Meach, and Francis Shewel.  The affidavit of Meach, who is a clerk in the Police-office, states, that Mary Ann Cole was brought up, charged with having some articles of stolen property in her possession.  That Mrs. Weavers having made a deposition, the defendant made some remark about a young child which the accused had in her arms, when Mr. Thomas Dunn, the Chief Constable, whispered the defendant that the child belonged to a gentleman who was in habit of intimacy with him, but whose name deponent refrains from mentioning, from motives of delicacy: that afterwards the complainants were taken by the defendant into a private room, and after office hours Mary Ann Cole was set at liberty.  I should observe upon this affidavit, that all it amounts to, is the mere fact of whispering, and, to put the most charitable interpretation on, it appears to have been made under a mistaken impression.  It is distinctly stated, in the affidavit of the defendant, that Mary Ann Cole and her child came under his cognizance three weeks before, and Mr. Dunn expressly states, that he communication relative to the child, was made by him to the defendant on a prior occasion, when Mary Ann Cole was before the Police, and not at the time sworn to by Meach, so that, at best, his testimony is given under a mistake.  I have no hesitation, therefore, in dismissing the affidavit of Meach from the case altogether, as having an evil tendency, and as the only circumstance set forth in it is, in fact, not true, merely observing on it, as a matter of charity, that at best he was mistaken.  In reply to the depositions that have been exhibited on the part of the prosecutrix, we have now the affidavit of Captain Rossi himself.  He states, that his attention was particularly drawn to the situation of Mary Ann Cole, on account of her having an infant child in her arms, about three months before the case of Mrs. Reynolds, when she was brought before him to be returned to the Factory, the person with whom she was then living, one Raphael, having no further occasion for her, and that the remark made by Mr. Dunn, was made at that time, and not at the time mentioned in the affidavit of Meach; that on the charge preferred against Mary Ann Cole, by Mrs. Reynolds, she (Mrs. R.) appeared to the acting person.  That, believing the accused to be innocent of the charge, and compassionating her situation with an infant child, he requested Mrs. Reynolds to walk into his parlour, when she distinctly stated that she did not accuse Mary Ann Cole of stealing the property, and that she might have received it from some of her own servants.  The accused herself stated that she had bought it, and for this reason, believing her acconnt [sic] to be true, and to save her any further trouble, he promised that the property should be returned, and asked Mrs. Reynolds if she would take twenty dollars, which she expressed herself satisfied to receive, at the same time cautioning Mary Ann Cole how she bought such things in future, and in which caution Mrs Reynolds joined.  That when Harriet Weavers was informed by the defendant that the parasol was to be delivered up, he frequently asked whether she suspected Mary Ann Cole of the theft, to which she repeatedly declared she did not, and appeared quite satisfied.  I, however, throw out of the case the deposition of Harriet Weavers, it is a mere circumstance, forming no part of the rule, and only intended to shew motive.  On the 18th of April, Mr. Amsden told the defendant that Mrs. Reynolds refused to take back the articles, upon which he smiled, and gave him from a drawer a 20-dollar note, which was taken to her, and for which Mr. Amsden received a receipt.  The defendant then goes on to state, as a probable motive for Mrs. Reynolds making this application, the circumstance of his having some time after purchased of Mrs. Reynolds, in company with Mrs. Rossi, some muslin in the dusk of the evening, which on the following morning not being found to answer, was sent back, when Mrs. Reynolds refused to receive it, in consequence of which, the defendant sent the money for it, with a message, that he thought Mrs. Reynolds a very bad woman, and an unfair dealer.  Chapman, the constable, takes up the case here, and deposes to several expressions of a vindictive character towards the defendant, having been made use of by Mrs. Reynolds these are the material parts of the different allegations on which the Court is now called on to pronounce its decision.  There is a supplementary affidavit of Captain Rossi filed, in which he distinctly swears, that the money he so sent to the prosecutrix, was Bona fide his own, and proceeded from no other source whatever.  Upon the whole of the affidavits before the Court, there is a considerable difference, not so much in point of facts, as in the manner of tracing them, and the inferences which are drawn from them.  The substance of the affidavit of the prosecutrix would go to shew, that from time to time she had lost a quantity of property; that she had traced it to the possession of Mary Ann Cole; that she was apprehended and brought before the Magistrate, who having called upon the party accused, she stated that she had purchased it for four dollars; that after this, the defendant took the prosecutrix into his private room, and there induced her to accept of 20 dollars as a compensation, at the same time admonishing the accused party, thereby shewing, that even, in his own mind, hed id [sic] not think her free from blame.  Upon the part of the defendant, this is denied.  He states, that on the occasion of the complaint being made, he considered Mrs. Reynolds as the prosecutrix; he does not deny having had some foreknowledge of the accused, but distinctly denies acquiring that knowledge on the day when the examination took place, but 3 weeks before.  That he believed the statement made by Mary Ann Cole, and that the prosecutrix and her daughter also stated that they believed it, and this fact, that they distinctly stated, that they did not suspect her of committing the theft, is so directly affirmed in the affidavit of Captain Rossi, that we have it beyond dispute, at least as his assertion.  Now, between these different statements, what inference can the Court draw?  It is a painful, a difficult situation for the Court to determine the value of testimony, but in the circumstance relative to the muslin, as stated in the affidavit of Captain Rossi, there certainly seems to have been something on the mind of the prosecutrix, something of a vindictive character which does not at all seem favourable to her.  As to the circumstance of her having received the money, I do not place much reliance on that fact, but I do place reliance on the expressions which were used.  Time had elapsed, a new dispute had taken place between the parties, and supposing that the defendant was conscious that he had acted improperly, that he had put himself in the power of the prosecutrix, was it morally probable that he would have this quarrel with her, or have exposed himself to her anger, by sending the message he did, one calculated as it was to irritate her?  This certainly is the moral probability of the case, though we have before the Court affidavit against affidavit.  Whatever credit, however, is to be attached to either statement, there is still a serious difficulty, one which was raised by the Attorney General on the argument.  If I am to express a general opinion on the case, I would say, taking all the circumstances of the case together, that most conscientiously I believe, the error of the Magistrate did not proceed from a corrupt motive, but from a mistaken feeling, though it certainly was of a reprehensible character.[7 ]  The motives and conduct of a Magistrate, should not only be correct, but above suspicion.  He had no right to step aside from the Bench, to hold a colloquial intercourse with these people.  It was a departure from the direct course of justice, but though this conduct was reprehensible, still I must express my full belief, that there was no corruption.  But I am relieved from the necessity of resting my decision in this case on my impression as to the motive of the Magistrate, by an objection which was taken by the Attorney General, that the whole body of facts before the Magistrates, as against Mary Ann Cole, did not amount to a charge of felony.  Though the receiving of stolen goods is made a statuteable felony, yet, upon looking into the whole of the case, upon the depositions of Mary Reynolds, and of Harriet Weavers, there does not appear to me to be a sufficient basis on which I could grant this rule.  If the case had been put in a course of proof, it must have been proved that  there was this procuring which is charged; it must have been proved that a felony had been committed.  Now, Mary Ann Cole was charged before the Police with having in her possession a parasol and some lace, the property of the prosecutrix and her daughter.  As a general proposition, being in possession of the property of another, throws the onus upon the person with whom it is found to account for that possession, or otherwise the presumption in law is raised, that it was come improperly by.  But here the accused, upon being questioned, states the person of whom she bought it, and the price paid for it, and whether this statement was in itself true or false, still it was proved to be false, the charge was, at best, but a suspicion.  The Magistrates should have enquired into the truth of that statement, but until that was determined, the party accused was entitled to the benefit of the excuse which she had set up, as it might have been proved then, and might still be proved, that, as matter of fact, she did buy it.  Can there then be a composition of felony, where no felony was proved?  There was an excuse which might have been true, or might have been false, but until its falsehood was established, certainly a case of felony was not made out.  With respect to the lace, it is not stated in any of the affidavits when it was lost, and this is a material circumstance.  It was relied on a good deal in argument, that Mary Ann Cole's account of it could not be true, as Lady Brisbane had left the Colony previous to its being stolen; but non constat but the excuse might have been true.  The time is most material, as recent possession is one of the matters on which to ground a charge of receiving stolen goods.  Here then was a charge against Mary Ann Cole, for having in her possession some lace, and a parasol, the property of the prosecutrix; she gives an account of the manner in which she became possessed of them, and she undoubtedly was entitled to the benefit of her excuse, until its truth or falsehood was ascertained.  I do not think there is, upon the face of the depositions, a sufficient corpus dilecti upon which I can grant this application, the rule therefore must be dismissed.  Rule discharged.[8 ]

 

Notes

[1 ] The rule was moved by Dr. Wardell and W.C. Wentworth: Sydney Gazette, 22 July 1826.  The allegations were that Rossi procured Mary Reynolds to take a note for 20 dollars, and the compounding of felonies by Mary Anne Cole.

Forbes C.J. commented on this issue in a letter to Horton, dated 15 May 1827 (Mitchell Library, Reel CY 760).  He said that "Now I admit it, I had strained hard to prevent any cases being inquired into, prior to the passing of the New South Wales act, and the establishment of regular tribunals of justice in the Colony - I knew that not one, but one thousand cases of unauthorized jurisdiction and irregular sentences, would be found on the records of the different benches of Magistrates, in the course of two or three years."

[2 ]Actions against magistrates required special notice.  Wardell argued that the inducement to compound the felony was not done in Rossi's official capacity.  Forbes C.J. concluded that notice was necessary under the statute: Sydney Gazette, 22 July 1826.

[3 ] Saxe Bannister.

[4 ] The arguments were also reported in the Sydney Gazette on 5 August 1826.  The Monitor claimed that the arguments were heard on Tuesday 2 August, and the Gazette on Tuesday, 1 August.  The Gazette was right, because 1 August 1826 was a Tuesday.

[5 ] The Monitor reported this decision on 11 August 1826; and the Australian on 9 August 1812.

[6 ] The facts which make an act a breach of the law.

[7 ] The Monitor, 11 August 1826, reported Forbes C.J. as saying here: "He (Forbes) was however inclined to think that there had been no corrupt motives influencing the Superintendent of Police, but a mistaken feeling, - yet his conduct had been irregular; - a Magistrate should never step aside from the simple line of Magisterial duty; he should not afford the world a shadow of suspicion; he should be free from taint, and pure as an angel, if possible.  This case was illustrative of the impropriety of the slightest deviation from strict forms of duty; there should be no stepping aside from the Bench save where public advantage demanded it; no holding colloquial conferences but in cases of necessity.  Still upon the whole body of facts, it did not appear to him that there was sufficient on which to ground the charge of a composition of felony; receiving stolen goods may be in law a misdemeanour, but not a statutable felony.  On their own shewing therefore, (i.e. the Counsel for the prosecution) there was not a sufficient basis whereon to grant a rule.  Where no felony was proved, there could not of necessity be a composition; the assertion of the prisoner that she purchased the property was good, until disproved; and as no means were taken to disprove it, she was entitled to the benefit of her excuse.  He should dismiss the rule, and as there was much irregularity in the conduct of the Magistrate, he should not allow him his Costs.

"His Honour also observed on quoting the authority of Chief Justice Buller, in the case of the King, v. Jackson - 1st. Term Reports, `that the only ground on which the Court would at any time grant an information against a Magistrate, was, when there was substantial proof of corruption; mere error of judgment the Court would not interfere with."

[8 ] While the Australian, 12 August 1826, thought that the result of the case was fair and reasonable, it said that Rossi, although not acting corruptly, had acted "irregularly, and somewhat reprehensibly".  What was required, the Australian thought, was for magistrates to act according to law rather than according to their notions of conscience. 

The Monitor, 18 August 1826, also thought that the result in the case was satisfactory.  It said that the judgment was based on two points, the absence of felony, and the lack of evidence of corruption.  It thought that Cole deserved no sympathy.  She was not young, a convict, a concubine or a prostitute.  The illegitimate child was that of a gentleman.  There, thought the Monitor, was the key to the mystery.  Rossi deserved criticism for his actions.

The Sydney Gazette commented on the decision on 16 August 1826.  Its focus was on the supposed inconsistencies of the views of the Australian, rather than on the case itself.  On 26 August 1826, the Gazette reported that there was an attempt to raise a subscription to pay the expenses of the prosecution in this case.  The Gazette saw that as casting a slur on Forbes C.J.

Published by the Division of Law, Macquarie University