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

R. v. Davison [1827] NSWSupC 52

criminal procedure, criminal informations, arrest of judgment, Magna Charta, autrefois acquit, presumption of innocence, stealing, cattle, death recorded

Supreme Court of New South Wales

Forbes C.J., 17 August 1827

Source: Australian, 22 August 1827

A case of some singularity occurred in the Supreme Court last week.

Two trials of prisoners took place, one on Monday,[1 ] and the other on Tuesday.[2 ]  A conviction was obtained in each instance, but after the verdict of the Jury was pronounced on Tuesday, it was discovered that the Informations presented to the Court were in the name of Mr. Moore, the Acting Attorney General, or predeceasor of Mr. Baxter.

It appeared that Mr. Baxter's Commission as Attorney General, bore date on the first of August, and that he was sworn in on the day on which the above informations were presented.  A point naturally arose as to the validity of the Informations; and on Friday,[3 ] after hearing the arguments of Counsel thereupon, the Court decided the question in favor of the prisoners, by setting aside the proceedings which had taken place.  The point was mooted by a motion in arrest of judgment, but the Court considered the case before it in the nature of an application to do away with the proceedings which had taken place, on the ground of irregularity.

The Court, it was observed, had on some occasion been censured for attending to the niceties of the law, and to prevent an impression going abroad, that it was too critical in its decisions, his Honor the Chief Justice adverted to the reasons which induced him to give the prisoners the benefit of the objections raised in their behalf.

By Magna Charta, and by the Constitution, as acknowledged and settled in various public Acts, no one could be tried except by his Peers, that is by a Jury composed of his equals.  Except under the 4. Geo. IV. there exists no power to try by Information persons accused of felonies.  That Act varies the mode of trial - is in derogation of the common law, and ought therefore to be taken strictly.  By a section in that Act it is provided that Informations shall be presented in the name of the Attorney General, or such other person as the Governor shall think fit to appoint for that purpose.  By exhibits it appeared that the Attorney General is the officer of the Court for that purpose, and by the date of a Commission that Mr. Baxter was in office at the time of filing the Informations.  Officers created by patent are officers without delivery of the instrument creating them, and are eligible to act from the date of their Commission.  There cannot be two Attorney Generals, as the subsequent Commission supersedes the preceding one, and Mr. Moore therefore was not Attorney General when the Informations against the prisoners were presented to the Court.  If the objection then raised be substantially valid, it would be hard, his Honor thought, not to allow the prisoners the benefit of it, though not in arrest of judgment.  As therefore the statute was extremely in derogation of the Common Law, it was necessary to adhere to the strict letter of it, and the proceedings, initiated by a person not occupying the office described in the Act, could not be valid.  The Court would consequently set them aside, and leave the Attorney General to institute proceedings anew, if he thought fit.  The prisoners were detained, as it is supposed, with the view of putting them on their trial again on the same charges, when a question will arise, whether they can plead successfully a former conviction in bar.


Forbes C.J. and Stephen J., 1 September 1827

Source: Sydney Gazette, 5 September 1827

James Davison, late of Pitt-town, in the Colony of New South Wales, was indicted for stealing three cows, and two bullocks, the property of Richard Cobcroft, at Wilberforce, on the 12th of June last.

After the indictment had been read, Mr. Rowe rose and stated to the Court, that the prisoner put in a plea in bar, to the present prosecution, namely, that he was before arraigned for the same felony, on the said 13th of August, 1827; that he then pleaded not guilty to the information, and that he was, also, the same person, so arraigned and convicted, and for greater certainty prayed, that the former indictment be read and compared with that under which he was then charged.

The ATTORNEY GENERAL, on the part of the Crown replied, that, in order to render the prisoner's plea available, it was necessary he should have been before tried on an information, on which he could be legally punished.  His life had not been in any jeopardy by being twice put to the bar; because the former conviction had been had on an information which was insufficient, having been presented by a party who had no right to exercise such a power.  Neither, he contended, was there any blame attributable to the Attorney General; because a stranger, as Mr. Moore must be considered, had chosen to file an information, when he was functus officio, his power to do so having ceased after the date of the Attorney General's commission.  In the case of the King against Taylor, it was laid down by Chief Justice Abbott, that a plea of autre foit arquit must shew that the prisoner was before acquitted on an indictment which might have induced punishment.  That the information on which the prisoner had been already convicted was not of such a nature, but was altogether insufficient, as was apparent from the records of the Court.

Dr. WARDELL, in support of the plea, contended that the only points for the consideration of the Court, in order to render the prisoner's plea available, were, first, the identity of the prisoner; secondly, whether the offence were the same; and thirdly, the sufficiency of the information under which he had been before convicted.  As to the first two points there was no question raised, and it only remained, therefore, for the Court to say, whether the indictment, under which the prisoner had been before found guilty, was substantially the same as that then before the Court - that is, whether the present indictment charged the same offence, and to have been committed at the same time, as in the former case.  It might be useful to enquire what an indictment or information was?  It was that which described the offence with which a prisoner was charged - a written accusation of one or more persons, of a crime, presented upon oath by a Jury of twelve men, or, as in this Country, where the common law privilege was taken away, by the Attorney General, who so far, stood in the place of a Grand Jury.  The offence, then, with which the prisoner was charged in the information then presented, was the precise words and language used on the occasion when he was previously charged and found guilty; and to try the merits, of a plea of autre foit convict, or autre foit acquit, it was only necessary to enquire whether the evidence which supported the former indictment, would support that before the Court; and, in the present case, it did not appear that different proofs would be called for.  The defect, he contended, also appeared upon the record, inasmuch as the Court would take judicial notice of its officers, equally as of an Act of Parliament.  The learned Counsel argued at considerable length, and cited various cases to shew that the prisoner was entitled to the benefit of the plea.

Mr. ROWE followed iu [sic] support of the argument of Dr. Wardell.  The only question, he contended, was, had the prisoner been once in jeopardy for the same crime with which he was then charged; for, if the crime were the same, and he the same person, he was then autre foit convict, which was all the Court had to enquire into, in order to its giving judgment in favour of the prisoner.  It was admitted by the Crown Officer, that the offence was the same as that of which the prisoner had been already found guilty, and that he was the same person, but it was contended that he was not tried on a sufficient indictment.  That on which the Attorney general maintained his argument was presenting of the information by another person, not authorised to do so.  But, did the mere presentment form a necessary part of the indictment?  He contended it did not; and as an improper or erroneous process the prisoner had a right to take advantage of it in a plea of autre foit convict or acquit, as the case might be (4th Hawkins, 417.)

The SOLICITOR GENERAL contended, that what had been advanced by the Attorney General was a complete answer to the arguments in support of the plea.  The Court had already decided that the first information on which the prisoner had been tried and convicted, was insufficient, and that no execution could be awarded on it; the life, therefore, of the prisoner, could not be said to have been before in peril.  Even though the prisoner was the same, and the offence the same, if the indictment were insufficient, he might be tried again.  That po[i]nt had been already decided.  With respect to the argument of Dr. Wardell, that the statute under which the Attorney General derived his power to present informations to the Court should have been set forth, it only made against his case, as it shewed that the proceedings were still more defective.  He (the Solicitor General) conceived that the Court could not receive informations except they were presented by a person authorised, under the statute to do so.  Consequently the proceedings were altogether irregular, and the prisoner was just the same as if he had never been tried.  The learned Gentleman concluded by observing, that in a trial for murder, it would be no plea that the party had been already tried by the Sessions who had no power to entertain such a case.

Dr. WARDELL replied, that in that case the Court had no jurisdiction; here it had, and had taken cognizance of the offence.

Mr. JUSTICE STEPHEN.  Are you prepared, Dr. Wardell, to shew that, if the Court should think the proceedings irregular, and arrest the judgment, a new information might not be presented against the prisoner?

Dr. WARDELL stated, that if the prisoner had demurred he was liable to be tried again; but he certainly contended that, by an arrest of judgment, the party was placed in a better situation than by a demurrer.  The conclusion from all the Authorities on the subject was, that if the prisoner did not demur, but took advantage of a defect in arrest of judgment, he was not liable to be tried again.  If the case were otherwise, where would be the use of taking advantage of defects in informations.

The SOLICITOR GENERAL observed, it had been already decided, that where an indictment was a decidedly defective that no judgment could have been had on it, it was no bar to another prosecution.

Dr. WARDELL.  But this is a substantial defect.

Mr. ROWE contended, that there was not a single case in all the books to shew, where a prisoner got off on arrest of judgment, that he had ever been tried again.

The CHIEF JUSTICE. - The facts of this case seem to be these.  The prisoner, James Davison, was prosecuted before this Court, on the 13th of the present month of August, for a certain offence; was tried and convicted; but, upon a motion, the proceedings were set aside, it appearing that the person prosecuting was not legally authorised so to do.  The identity of the offence, and of the party before the Court, are admitted, and, upon a new information being exhibited, a plea of former conviction has been put in by the prisoner, to which a replication had been made by the Attorney General, that the former information being insufficient, and such as no judgment could have been had upon, the proceedings must be considered to have been coram non  judice, and consequently the prisoner could not have been in jeopardy.  These facts being admitted, it becomes a simple point of law, whether his plea will so far avail the prisoner as to protect him from another prosecution for the same offence.  It is a principle of law, about which there is no dispute, and which is laid down by every authority, and I quote particularly from Lord Coke, the fountain of all authorities, that no person can be put in peril of his life or liberty a second time for the same offence; but the same writer goes on to say, that this is intended only of a lawful acquittal or conviction; because it is equally clear that where there is a substantial defect either in the indictment, so that no judgment could be had on it, or in the jurisdiction of the Court, the plea of autre foit convict or autre foit acquit cannot avail a prisoner in bar to another prosecution.  The argument of Counsel is, that the defect in the information is a mere formal defect, that judgment might have been had on it, and that consequently the prisoner's life was put in peril.  But there is no other mode of proceeding, in this Court, in a case of felony, except by information presented in the name of His Majesty's Attorney General.  The Act of Parliament has created a new mode of proceeding, unknown to the common law, whereby no individual could be put upon his trial unless on the accusation of, at least twelve of his fellow subjects.  Wherever a statute acts in derogation of the common law or take away a common law privilege, it must be interpreted strictly.  The Act of Parliament, then says, that all informations must be presented in the name of His Majesty's Attorney General, or other Officer duly appointed for that purpose.  Mr. Moore the late Attorney General, exhibited the information against the prisoner at the bar, when he was no longer in office.  The Act does not contemplate two Attorneys General, and, as it has been distinctly laid down, in the case of the King against John Horne, as the Attorney General is in fact an Officer of the Court, and has a place in the Court of King's Bench; and considering ourselves sitting down here to administer justice according to the Act, we feel bound to take judicial notice of who was the Attorney General, at the time this information was presented, and to state, that he must commence proceedings or they cannot be legally prosecuted here.  The Court, however, would to be understood as viewing this application, not in the light of an arrest of judgment, as nothing appears upon the record by which they could raise the question as to who was or was not the Attorney General without a reference to extrinsic circumstances, but as an application to set aside proceedings upon the ground of irregularity shewn by a [?] being brought before the Court of which they are bound to have judicial knowledge.  We, therefore, direct that the proceedings be set aside as irregular and, discharging the prosecution on this ground, and viewing the proceedings as such that judgment could not have been had on them, it is the opinion of myself and Mr. Justice Stephen, that the prisoner has not been before placed in jeopardy, and that, consequently, the plea of autre foit convict cannot be sustained.

Mr. JUSTICE STEPHEN was of opinion, that as the proceedings must be considered as having been coram non judice, the prisoner could not have been in peril.  Without entering into the discussion of any other points connected with the case, he agreed with His Honor the Chief Justice in dismissing the plea.[4 ]


Trial, 5 November 1827

Source: Australian, 7 November 1827

James Davison was capitally indicted for stealing ten head of cattle, the property of Richard Cobcroft. It appeared in evidence, that on or about the 10th of June last, the prisoner directed two men in his employment to drive ten head of cattle from Wilberforce to Sydney, for sale.  The cattle were driven on the first day as far as the half-way house, on the road between Parramatta and Sydney, where they stayed for the night; prisoner having, in the mean time, gone on to the Sydney market, for the purpose of disposing of them.  The following morning prisoner returned to the half-way house, in company with another man, having previously sold them to the firm of Murrel, Sandwell and Perks, butchers of Sydney.  Shortly after this, the prosecutor discovered that some of his cattle were missing, in consequenee [sic] of which he instituted an immediate search, and finally discovered the cattle he had lost in the custody of the Police at Sydney.

Mr. Wilmot, the keeper of the house before mentioned, recollected two men coming there one evening, in the month of June last, with ten head of cattle which they put into one of his paddocks; there were a number of other cattle penned in adjoining one's, but the condition of the fence was such, that the cattle could intermix at pleasure; he took no notice what were the brands of the cattle brought by the two men, nor could he swear that the cattle brought on that occasion were the very cattle afterwards taken from his hands by the mounted police, and brought into Sydney.  The drivers of the cattle also swore that they took no notice of any brands.

The learned Judge, after a few minutes consideration, addressed the Jury, telling them that there certainly did appear in the present case, a defective link in the chain of evidence, which could not be supplied by circumstances.  It was better, said his Honor, that a prisoner escape, whatever might be the moral conviction of the Court as to his guilt, than that the rules of evidence should be strained to bring about a conviction; the evidence of a material witness in the present case was wanting; this fact was known to the Court, inasmuch, as a subpoena requiring his attendance on the trial that day had been issued from the crown-office.  His Honor, therefore being particularly cautious in looking into the several bearings of this case, thought the evident absence of legal testimony to bring the charge home to the prisoner, made it imperative on the Court to tell the Jury that the prisoner was entitled to his acquittal.  Verdict, not guilty.

Upon a motion of the Attorney General,[5 ] the prisoner was detained in custody, to answer to another indictment for cattle stealing.  The Crown Officer, however, intimated that he despaired of being able to prosecute this charge to conviction, from the want of an evidence, whose non-attendance that day had frustrated the charge against the prisoner, and the learned gentleman suspected stratagem had not been wanting to keep the evidence out of sight.


[1 ] 13 August 1827.  This was the day of Davidson's trial: see Sydney Gazette, 15 August 1827.

[2 ] 14 August 1827.  The only conviction reported by the Australian (17 August 1827) the Sydney Gazette (15 August 1827) or the Monitor (16 August 1827) for this day was R. v.Goodman, Spalding, Welch and Welch, August 1827.  See also Sydney Gazette, 29 August and 5 September 1827, on a similar objection being made in the case against John Cooper Briggs.

[3 ] 17 August 1827.

[4 ] The Australian, 5 September 1827, reported the Chief Justice's judgment as follows:

"The CHIEF JUSTICE - The facts in this case being admitted, the question of law is simply whether the plea of autrefois convict be sufficient to protect the prisoner from the present Information.  The mode of proceeding in this Court, in prosecution of crimes, is created and regulated by Act of Parliament; and the directions of the Act must be strictly followed, as the source of our jurisdiction, and guide of our proceedings.  The Act directs that all crimes shall be prosecuted by Information, in the name of the Attorney General.  By the Attorney General is intended an officer similar to his Majesty's Attorney General in England.  Of the Attorney General in England, it is said, "HE IS, IN TRUTH, AN OFFICER OF; and has a place in, THE COURT OF KING'S BENCH, 20. St. Tr. 802.  "The Courts will take (20. St. Tr. 802.) notice judicially of the Attorney General (19. St. Tr. 1130.) and a fortiori, this Court will judicially take notice of the officer, especially directed by the statute to call forth its proceedings in the highest branch of its jurisdiction.  It is this peculiarity in our proceeding upon which the whole point turns.  The principle of law is clear, that no man's life can be twice put in jeopardy for the same offence; but it is equally clear, that where from any defect in the indictment, the jurisdiction of the Court, or the mode of trial, there could be no good judgment, then the life of the prisoner has not been legally put in jeopardy, and the plea of autrefois convict will not avail.  Now the stress of the arguments of Counsel has been, that the defect in the original Information was matter of form.  But we have already considered, in setting aside the proceedings, that it was matter of substance; of which we were bound to take judicial cognizance.  Suppose that it were to be discovered to day, after a prisoner had been put upon his trial, and evidence gone to the Jury, that the party prosecuting was a stranger, not known to the Court, and not authorised by the Act of Parliament to prosecute for felony, would the Court allow the case to proceed?  It could not - it must discharge the prisoner, as not being legally put upon his trial; [?] than would the case be helped; if the defect in the [?] should not be discovered until it had gone the length of a conviction?  The proceedings would not be the less irregular, and consequently void."

[5 ] A.M. Baxter.  In fact, Davison was convicted at a subsequent trial: Sydney Gazette, 7 December 1827.  His sentence was death recorded: Sydney Gazette, 10 December 1827. Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

In this case, however, the Monitor, 10 December 1827, reported that Stephen J. said that "the sentence did not necessarily imply, that his life would be spared."

Another complication in cattle stealing case concerned wild cattle claimed to be the property of the Crown: see Forbes C.J. to Governor Brisbane, 28 November 1825, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 64.  In the very early days of the colony, some cattle belonging to the Crown escaped and bred in the wild.

Published by the Division of Law, Macquarie University