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

R. v. Wardell (No. 1) [1827] NSWSupC 44

seditious libel - imprisonment for debt - Forbes C.J., liberalism of - taxation without representation - trial by jury - criminal procedure - Grand Jury - prosecutions, ex officio - reception of English law

Supreme Court of New South Wales

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

Source: Australian, 29 June 1827


The Court was occupied some hours this day, with arguments on a motion made to the Court on a preceding day by this defendant.[ 1]  The motion was not of a very specific nature, but it had arisen out of some procedings [sic] instituted by the Acting Attorney General,[2 ] in cases of alleged libel.  The Acting Attorney General it appeared from the defendant's statement, had filed three Informations and had issued to the defendant such subpoenaes upon them as were used by the King's Coroner, and further, had taken these subpoenaes out of the Supreme Court without a principe,[sic] without leave of the Court, and without entering a minute in the Supreme Court office, and had filed Informations which had not the necessary and essential conclusions which Information ought to have, whether they proceeded from the office of Coroner or were filed ex officio.  It also appeared that two of these Informations were filed on behalf of two private individuals; namely, Mr. Carter and Mr. Pedder.  The defendant contended, that as to two of the Informations the process on them must be quashed, as the provisions of the Statute of William and Mary had not been complied with; and that as to the third, no process could issue for want of the prayer to the Court at the conclusion of the Information.  Dr. Wardell, in arguing the cases before the Court, said, that the plainest way of considering the question was, to inquire what were the duties of the Attorney General of this Colony, as imposed upon that officer, by the New South Wales Act, and what were the duties and authorities exercised by that great Constitutional officer of the Crown, the Attorney General of England.  In considering the first part of the question, it would be necessary to advert to the New South Wales Act of Parliament; for that Statute had conferred whatever authority was possessed by the Attorney General here, different from that of the Attorney General of England.  It might be collected from this Act that Grand Juries were taken away from the Supreme Court of this Colony, and it was quite clear that nothing whatever was substituted in the place of the Grand Jury.[ 3]  No express words had created a substitute, and no substitute could be created by implication of law, and consequently there was no person, and no jury of persons who could perform the function of a Grand Jury.  Complainants then, who could have originated proceedings before a grand jury, could not originate them before any person or body of persons, but they must go directly before the Court and make application for a Criminal Information, or apply to the magistrates, and there originate their complaints.  They could not go to the Attorney General, because he did not supply the place of a grand jury, and consequently could not perform the functions of a grand jury.  He could neither hear the evidence of parties, nor could he make presentments.  But, by the New South Wales Act, it is required that all Informations should be presented in the name of the Attorney General or other officer appointed by "the Governor," &c.  Where there are grand juries, the Informations or rather Indictments, are presented to the Court in the name of "the jurors of our Lord the King," &c.  As there existed no grand jury here in the Supreme Court, this function which is a mere ministerial function of a grand jury, and this function only of the grand jury, is made to devolve upon the Attorney General, not because he is Attorney General, but because it was supposed that he would be an officer whose name could be most conveniently used - it is made to devolve upon him, or upon another officer appointed by the Governor.  There had been another officer appointed by the Governor, namely, the King's Coroner; and the King's Coroner, under the Act, possessed a co-existent and co-extensive power, with that power of the Attorney General derived from the Act - a power precisely similar to the King's Coroner at Westminister, which was a strictly ministerial power.  All therefore, either of these officers could do under the Act, would be to file an Information when commanded by the Court, or when he may receive depositions from the magistrates; and all the discretion either of them possessed, was a discretion, which would control the mistakes of magistrates, and to be careful not to file an Information for felony, because the magistrates had so described an offence, when in fact it amounted only to a misdemeanor.  This function had been conferred on the Attorney General or other officer, in order that there might an organ of communication between the magistrates or the public and the Court, in lieu of that avenue which was open where a grand jury existed.  If the Legislature had intended that the officer performing this function should have possessed greater powers, or a discretionary authority, to present and prosecute what Informations he pleased, the Legislature would and must have conveyed such power in express terms, for express terms were as necessary to convey an authority, as to take away an Institution or a law which the people of this Colony, without such taking away would have enjoyed of right.  The grand jury is swept away from us, and with it, all its substantial functions and all its incidental forms.  The consequence is, that the people must either seek redress intermediately through the magistrates, or directly from the Court; and the Attorney General, or other officer, when acting under "the Statute" has no discretion to institute proceedings by Information.  If he could do this, the New South Wales Act of Parliament would have impliedly and virtually repeated that most useful Statute of William and Mary, and have endangered the rise within this Colony of all those abuses which it claimed the interference of the Legislature in England to correct, and which gave rise to the above Statute of William and Mary.  As then, it was clear that the Attorney General, as to the powers derived from the New South Wales Act of Parliament, had only the powers of the coroner; and as the coroner here must be deemed to have no greater power than the coroner in England, it was equally clear that the Attorney General had exceeded his ministerial duty in presenting the two Information [sic] on behalf of the two individuals named, without the leave of the Court, and that he had exceeded his duty in taking out process upon them, before the provisions of the Statute of William and Mary had been complied with.

Dr. Wardell then proceeded.  Then, with respect to the other part of this question, which I say resolves itself into this, - what are the duties of the Attorney General in England?  For; if Mr. Moore in this case, states to the Court that he does not in filing the Informations, act under the New South Wales Statute, but acts ex officio as the old Constitutional officer of the Crown, it becomes my duty to shew that in filing these Informations in that capacity, he had acted unconstitutionally, illegally, and improperly.  He has done that, which if it were done repeatedly in England, would convince the Legislature that their interference was necessary to restrain the Attorney General, as the Coroner had been restrained; and that it would not be safe to trust to the wisdom and discretion of learned lawyers.  If Mr. Moore had been the Acting Attorney General in England, and done that in England, which he has done here, he would have laid himself open not only to public, but to parliamentary censure; but if I must tell the Attorney General, that though he may see here and there in text books vague expressions of the transcendant power of an Attorney General, his power is defined by land marks; and that he is limited within them as much as if he were bound by the strictest letters of the strictest laws; and I must tell him further, that he has gone beyond those land marks in filing the two Informations, and far exceeded his duty.  The treatises of constitutional lawyers set forth these land marks, and shew distinctly the kind of Informations which it is competent to an Attorney General to file.

Lord Bacon enumerates the offences and misdemeanors which it is expected shall claim the attention of the Attorney General, and by naming those which he shall attend to, it may be collected what those are which he shall not interfere with, but which, he shall leave to the ordinary course of law.  Books of precedents too, are full of Informations filed by Attorney Generals ex officio, by Crown Officers, and of Indictments, and from these we learn to guide ourselves; from these may be ascertained, when the Attorney General ought and when he ought not to interfere.  From these precedents it may be seen, that when Justices of the Peace have been libelled - or judges, or Peers of Parliament, or Governors of Colonies, the Attorney General of England had not interfered; but the proper course to be pursued, it has been thought, was an application to the Court of King's Bench; and so with regard to the two Informations in question ought the course to have been here.

Dr. Wardell then adverted to the copy of an information which he held in his hand, and said, he would leave it for the Court to consider what kind of faith had been used towards them when they were told by the acting Attorney-general that that was an ex officio Information, thought there was the name not only of the complainant used as prosecutor, but actually the name of "Norton" indorsed on the back as the name of the prosecutor's attorney.  With these observations as to the two Informations, and noticing the defects of all of the Informations, the learned counsel submitted whether any proceedings could be taken on them.

The Acting Attorney-general. - I scarcely know tho [sic] nature of the application to the Court.  The notice first served on me was to quash the Subpoenaes.  In filing this Information, I certainly did file them in the same view as I would have filed an ex officio Information.  But the mode of proceeding under the statute being so much the more simple, I resorted to that mode. as it was attended with less difficulty than in the other case; but, in fact, there is no Crown officer in the Colony.  The Supreme Court is the Crown office; and Informations filed by the master of the Crown office is a mere name.  The Information was filed by me in the Supreme Court, as being the only officer of that Court.  I filed this Information under the impression, that all crimes and misdemeanors cognizable in this Court should be prosecuted by Information; therefore all crimes brought before this Court are filed in the name of the Attorney-general, and are filed in the office.

The Chief Justice. - It appears to me, that one little point has been left out in the consideration of a part of your argument.  The practice of the Courts is as much the law of the land, as the law of inheritance.  Upon what principle do you prosecute for libel.  The New South Wales Act says nothing about it; it requires nothing short of an Act of Parliament to alter the laws of England.  Particular rules have been adopted, and particular rules laid down to be followed.  What are the rules of English law in cases of this kind.  Whatever they are we must follow them.  There is a broad line of distinction between prosecutions ex officio, and prosecutions by individuals.  The question is whether or not these boundaries are also established in this Colony, whether they are destroyed by the New South Wales Act. - In the line of argument taken by Dr. Wardell, it struck me very forcibly to look at the Statute of William and Mary, and there see if the New South Wales Act meant to repeal that Act, with all its beneficial effects, and whether the officer described in the New South Wales Act or such other officer - whether this officer so created shall have power of prosecuting whom he likes at his own will and pleasure, without any proceedings being first taken before the Magistrates, or without making leave of the Court.  And this in the very teeth of the statute of William and Mary, thus creating abuses in this Colony, which excited the attention of the legislature at home before the passing of that Act.  I ask of the Attorney-general if we are to consider the prosecutions before the Court ex officio, or whether he limits himself to the letter of the New South Wales Act.  He is the Attorney-general, or Coroner which under the Act are co-extensive terms, and he has great powers; but it is high time for the Court to inter pose its authority, upon that which it has previously expressed an opinion.

It is high time for the Court to interpose and make a rule and say, all proceedings in this Court shall be regulated by the Courts at home.  It appears to me much argument might be saved, if the Attorney General would give an explicit declaration whether he intended to prosecute ex officio, or to bring the information before the Court in a mixed and indefinite character, partly officio and partly private.  That the proceedings have been taken are of that private nature, strikes me from the circumstance of taking out the subpoenae, which is a process upon an information filed in the Crown Office.  I ask the Attorney General whether he prosecutes ex officio, standing in the responsible situation of Attorney General as in England, or files these instruments simply in conformity with the New South Wales Act.  We are entitled to enquire if these proceedings are intended to rest on the responsibility of the Attorney General, or whether the proceedings initiated are in conformity with the New South Wales Act.

Mr. Justice Stephen said, he wished the question might be put in some more tangible shape; as he was unacquainted with the former proceedings which had been instituted upon a certain part of the present case.

The Chief Justice explained, that some time ago a motion was made in that Court to put one of the present prosecutors, Wm. Carter, Esq. to his election in which way he would seek his remedy for that which he complained of.[ 4]  But his Honor could not suppose the present case to be the same; fore it was not to be supposed that the prosecutor, after the Court had pronounced its decisions, would drop his private prosecution, and go to the Attorney General and have liberty to proceed on an ex officio prosecution.  If a party so situated be allowed to act in this manner, then it reduces the authority of the Court to a mere nugatory proceeding.

The Acting Attorney General resumed, he said, he looked upon the instruments before the Court as ex officio informations.

Dr. Wardell presenting the copy of an Information, asked if it was intended to call that thing an ex officio instrument.

The Court. - Pray is that the same Information on which the party was put to his election?  If it is, I really think, said the Chief Justice, the Attorney General would do well to consider the propriety of such a proceeding.  I know of no precedent for such a thing.  I never heard such a case.  The Court must preserve its own respectability.  The Court has determined the point.  I think a little misapprehension exists with respect to that particular Information.  I will put it to the Attorney General whether he will press it on the Court in an ex officio form.  With regard to the two others, the same remarks will not apply.  I cannot prevent the Attorney General from proceeding ex offico, at the same time I tell him what is due to the Court.

Mr. Norton followed on the same side as the Attorney General, he wished to explain to the Court that The Governor had directed the Information to be filed against Dr. Wardell (ha, ha, ha! The Governor had directed!!! Hear this ye Sages of Westminster Hall - hear this ye Legislators of St. Stephen's - hear this ye Attorney Generals whose discretion is defunct!!! - Ed.) and that he was retained to prosecute the same, in conjunction with Mr. Moore.  The information was at the suit of the Attorney General.

Doctor Wardell offered some observations in reply; leaving it with the Court to say whether the parties were in a condition to ask for process.

[We have been particular to give as correct a report as we could of these proceedings, from the notes of our Reporter.  If any errors appear in the above, we can vouch for the accuracy of what follows namely, the decision., if so it may be called, of the Court, and embodies most of the sentiments promulgated by the Court in the course of the arguments.]

By the Court. - the general principles laid down by the Court in the case of Rex v. Wardell, at the prosecution (as was then admitted and understood), of William Carter, esquire, J. P. apply to the question before the Court - if in fact there is any question before it, they are sufficient to regulate its decision on the point, which is rather one of practice, than of law, now raised.  With the Attorney General's discretion, as derived from the prerogatives of the Crown, we desire not to interfere, but with the exercise of the particular duties cast upon the Attorney General, or other officer named by the Governor, in pursuance of the New South Wales Act - we are called upon so far to interfere, as to regulate them, as nearly as possible according to the rules and practice of law in like cases at Westminster, and which we are expressly authorised to do by the section of the Act of Parliament.  Now, in order to exercise this regulating power of the Court, we are entitled to be put in possession of a preliminary fact, viz:- whether the Attorney General does, de facto, exhibit an information in his office, as the King's Attorney General, bearing all the prerogative power of that high officer, or exhibits such instrument, or allows his name merely to bring the case formally before the Court.  The restraining all prosecutions to the name of the Crown officer, is founded on sound legal considerations; the Crown, as the guardian of the public, is presumed to prosecute for all offences against the public peace; and the same principle which establishes the right to prosecute, enables the Crown to restrain such prosecutions as it may deem inexpedient to pursue.  Hence, the name of some Crown officer is necessary; that such officer may withhold his name if it be deemed proper; the regulation of the use of this Crown officer's name, is part of the  provisions of Stat. W. and M.

As matter of fact then, does the Attorney General file the Information which we are called upon to quash, ex officio, or ministerially?  The Attorney General says he does ex officio - and we must leave the Attorney General to his own discretion.  We cannot enter into the particulars of the information, and say whether they are discreetly filed or not - this must rest upon the Attorney General's having filed the information, and his declaration that they are ex officio.

So far upon general principle.  There is one of these cases, however, which has already come before the Court (as is now admitted), in the form of a private prosecution - which was argued before the Court, and upon which this Court has already pronounced an opinion, regarding it as a private prosecution, viz:- that the prosecutor, William Carter, Esquire, having an action pending before this Court, for the same cause, should elect either to abandon the prosecution, or be restrained from proceeding with his action.  Now, after this deliberate decision, it is ungracious to be told that the prosecution so advocated by Mr. Carter, is now to be regarded as an ex officio prosecution --- with the very Attorney's name endorsed, and all the forms used of a private prosecution about it.  With those remarks, we dismiss the present application.  But to prevent misapprehension, we shall lay down a rule applicable to all future cases, with respect to the filing of informations in cases of misdemeanor, under the New South Wales Act.

The Court has taken no notice of any irregularities in the proceedings in this case; they may, if available, be taken advantage of hereafter in any other stage of the case.



[1 ] See also R. v. Wardell (No. 2), September 1827; R. v. Wardell (No. 3), December 1827; and R. v. Wardell (No. 4), March 1827; and see Sydney Gazette, 3 and 6 March 1827.

The Sydney Gazette did not report this case, but it commented on it on 29 June 1827.  It took its effect to be that the Attorney General could no longer proceed on an ex officio basis merely on a private complaint.  Informations would now require the leave of the Supreme Court.  See also Monitor, 28 June 1827; its report was published on 3 July 1827, and was taken directly from the Australian.

[2 ] W.H. Moore.

[ 3] The campaign for trial by civilian jury continued in 1827.  On 31 January 1827, Governor Darling sent to London a petition for jury trial and taxation by representation: see Historical Records of Australia, Series 1, Vol. 13, pp 50-58 (and see 96-102).  The petitioners claimed that the experiment of jury trial in the Quarter Sessions (as to which, see R. v. Magistrates of Sydney, 1824) had been a success, even though four fifths of the petitioners had been excluded from jury membership because they were former convicts.  Forbes told Horton on 6 February 1827 that he agreed with the petitioners on the need for representation.  There was no provision for control of expenditure beyond the fiat of the governor, and no debtor's prison, for example.  It was impossible to keep down the demand for representation; the people in New South Wales were more intelligent, active and determined than those of any of the older colonies, and were newly sprung from intellectual and enterprising England.  This did not mean, said Forbes, that he was advocating "popular representation" but was merely affirming the need for reform.   (Sources: Historical Records of Australia, Series 4, Vol. 1, pp 679f; Mitchell Library, Reel CY 760.)

Special debtors' apartments were constructed in the Sydney gaol during the course of 1827: Darling to Forbes and reply, 29 March 1827, Chief Justices' Letter Book, Archives Office of New South Wales, 4/6651, p. 108.

[ 4] R. v. Wardell (No. 4), 1827.

Published by the Division of Law, Macquarie University