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

Anonymous [1828] NSWSupC 108

supervision of inferior courts - civil remedy in criminal action - sentencing discretion

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 20 December 1828

Source: Australian, 23 December 1828



The Attorney General rose, he said, for the purpose of submitting a motion to the Court in the case of three persons, who were under committal for trial at the next Quarter Sessions, on a charge of assault.  It appeared, continued the learned Gentleman, that a police officer, well known in that Court of the name of Fitzpatrick, in the discharge of his duty, challenged the defendants, and in that his endeavour to preserve the public peace, he was grossly assaulted.  The Magistrates before whom the charge of assault was heard, felt it their duty to hold the offending parties to bail, to answer the charge at the Sessions.  The object of the Attorney General now, in making this application to the Court was, for a rule to cause the proceedings against the defendants to be quashed, those parties making a pecuniary recompense to the constable.  That object was founded on the circumstance that Fitzpatrick was an officer of that Court and should be protected in the discharge of his duties.  He was doubly entitled to this consideration at his (the Attorney General's hands) inasmuch as he was known to be a well conducted individual.

Their Honors the Judges granted the application, on the ground that if the case had been sent to the Quarter Sessions, and the facts stated to them proved, most likely each party, from the nature of the offence, would have been fined in a penalty of 50l., if not imprisonment.  The Attorney General then fixed the sum to be levied on each party at 10l. to be paid to the constable.



Published by the Division of Law, Macquarie University