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

R v Tindal [1826] NSWSupC 24

habeas corpus - certiorari - supervision of inferior courts - women defendants in crime

Supreme Court of New South Wales

Stephen A.C.J.[1 ], 19 April 1826

Source: Sydney Gazette, 22 April 1826


Jane Tindal, convicted before the Magistrates of selling spirituous liquors without licence, contrary to the provisions of the Act of Council, No. 2, and in default of paying the fine of £25 sterling committed to prison, was this day brought up by habeas corpus, on the motion of Mr. Rowe, who applied for her discharge on the ground of illegality in the commitment.  It appeared, that by the Act of Council, No. 2, the Magistrates were empowered, on a conviction before them, of a violation of its provisions by selling spirits without being duly licensed, to levy a penalty of £25 sterling, and in default of payment, within ten days, to commit the offender to gaol for any time not exceeding four months.  Upon an examination of the commitment, in the present case, it appeared that the defendant was adjudged to pay the above sum, and in default to stand committed until the said fine was paid.  Mr. Rowe therefore submitted, that the Magistrates had exceeded the powers vested in them by the Act, in committing for an indefinite period, which would amount to perpetual imprisonment if the fine was not paid, and upon this ground, the committal being clearly illegal, inasmuch as there was an excess of jurisdiction, he contended that the defendant was entitled to her discharge.  Mr. W. H. Moore, in the absence of the Attorney General, contended in reply, that it was a mere mistake or informality in drawing up the warrant, which only required the words "until delivered by due course of law" to be inserted to make it perfectly legal.  Besides which, the defendant had not suffered by it.  She could apply for her discharge at the termination of the four months, and if she was then detained she had ground of action.  His Honor observed, that the Act expressly provided that he defendant was only to be committed for a certain period if the fine was not paid within ten days, and therefore he thought, that even if the words which Mr. Moore had mentioned were inserted, it would amount to nothing, as the defendant had a right to know the exact time for which she was committed.  All laws relating to the liberty of the subject were in strictissimi juris, and he had therefore no hesitation in saying that the warrant was incorrect, and could not be supported under the Act, which only empowered the Magistrates to commit for a period not exceeding four months.  His only hesitation, therefore, in deciding the question was, on account of the mode in which it had been brought forward, as being an adjudication of the Magistrates, he thought the more regular way would be to apply for a Rule to bring the matter before the Court by certiorari, which would give the Magistrates an opportunity of hearing the grounds of objection, and enable them to correct the error, if it was one, in future.  Mr. Rowe assented to the suggestion of His Honor, and gave notice of his intention to apply for a writ of certiorari.



[1 ]Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.

Published by the Division of Law, Macquarie University