Skip to Content

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

In re Byrne et al. [1827] NSWSupC 9

habeas corpus, supervision of inferior courts, convict service, judicial independence, Stephen J. and Governor Darling, conflict between

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 26 February 1827

Source: Australian, 1 March 1827

Doctor Wardell moved, that fifteen men who were before the Court, by writ of habeas corpus be discharged, on the ground that they could not be legally detained in gaol.  It appeared that they have been apprehended by warrant, under the hand and seal of Mr. Dalhunty, J. P. on a charge of cattle stealing.  The warrants were dated on the 9th of January, and the men had been apprehended within a few days of the date of the warrant, and forwarded from Bathurst, to Sydney goal, where they had lain without undergoing examination, for five or six weeks, or without any thing being done in their case, except an endorsement made on the warrants of commitment, (not by the magistrate signing the warrants,) stating that they were to be remanded to Bathurst again.  The names of the parties were, Patrick Byrne,[1 ] Andrew Dunn, Boyce Eagan, Thomas Gallagher, Thomas Power, William Dunn, Patrick Cosgrove, Samuel Phillips, John Hanly, Dennis Eagan, Joseph Smith, William Peterson, James Gulliver, George Bryan and Edward Walsh.

The Court strongly animadverting on the business, was of opinion, that there was no legal authority to justify the detention of the prisoners, and ordered their discharge from the bar immediately.[2 ]


[1 ] See also R. v. Byrne, 1827.

[2 ] The Sydney Gazette, 3 March 1827, gave more detail here: "The Crown Officer offered, in explanation, why the Magistrates had imagined they were warranted in detaining the men, the circumstance of their being prisoners of the crown, but His Honor, Mr. Justice Stephen, stated that he knew of no law whereby, because men happened to be in the unfortunate situation of prisoners of the crown, that they were not to have the same measure of justice meted out to them as to other individuals.  He was aware of no law whereby Magistrates, without any charge being preferred, were empowered to shut up persons in a watch-house for five or six weeks, merely because they were prisoners of the crown, and he should, therefore, certainly order their discharge.  The men were accordingly discharged; the ticket of leave man altogether; and the two others directed to be sent to the Barracks."

After the Gazette's account was published, the governor wrote to Stephen J. to ask whether he had said what the Gazette reported.  Stephen J. replied that he did not think it a very accurate report, but that it was inappropriate that a judge should be questioned in this way.  In reporting this exchange on 27 March 1827, the Australian took it as a matter of constitutional privilege, and one which attacked the independence of the judiciary.  See also, Monitor, 30 March 1827, which took a similar line.  The Monitor linked this to the Sudds and Thompson case, as to which, see R. v. Wardell (No. 3), December 1827.  See also In re Foster, 1827.

The Sydney Gazette, 28 May 1827, said that the trouble began with the Monitor's account of the judge's statements.  The Monitor embellished this with references to the Magna Charta, implying that they had been made by Stephen J.  It was this which led Captain Rossi, Superintendent of Police and a magistrate, to enquire how the bench was to act in future, and this led to the letter to Stephen J.

Published by the Division of Law, Macquarie University