Skip to Content

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

Ex parte Dunn [1828] NSWSupC 64

liquor laws, supervision of inferior courts, certiorari

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 23 and 30 August 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 330]

[Certiorari only returns the conviction before Justices properly drawn up, and the Court will

take no notice of any objection to the information for selling spirits without a licence.]

Saturday 30 August 1828

Coram Forbes CJ. Stephen J. Dowling J.

Exparte Samuel Dunn

This was a motion for a Certiorari to return the conviction of the Defendant for selling Spirits without a licence the conviction and depositions were returned

Dr Wardell made several objections to the form of the information, and also that it appeared on the depositions that the witnesses examined in support of the information were interested in the result, by saying that they expected part of the penalty.

Forbes CJ. Stephen J. Dowling J. were however of opinion that we could only look to the conviction as returned by the Justices, and as they did not appear to have exceeded their jurisdiction, we could not grant any relief.

Conviction affirmed and a proceden do[1 ] awarded.

[p. 331]

Dr Wardell moved for a Certiorari to F.A. Heley Esqr and John Stephen Ian Esqr Justices of the Territory, to remove the proceedings into this Court, before them against Samuel Dunn for selling spirits without a licence contrary to the local act.  The objections taken to the proceedings were to the form of the information in not shewing

1st  That the information sued on behalf of himself and the King.

2nd  That the Justices had acted upon the evidence of the interested persons who were entitled to a share of the penalty.

The Court granted the Certiorari to be returned.

Returnable Saturday 23 August.

Saturday 23rd August 1828

Present

Forbes CJ

Stephen J

Dowling J

On the motion of Dr Wardell, this case stood over until Saturday next the parties [p. 332] not being ready to go on.

Vide ante

page 332.

Forbes C.J., Stephen and Dowling JJ,, 30 August 1828

Source: Australian, 3 September 1828

Some curious points were argued before the Judges in the Supreme Court on Saturday last, the issue of which was looked to with no inconsiderable degree of interest.

A person living in Sydney, having been convicted in the customary prescribed penalty before a Bench of Magistrates, of selling spirituous liquors without a license, appealed by Counsel for the justice of the conviction to the Supreme Court, on the general ground of the whole tissue [sic] of the Magistrates' proceedings, being objectionable, and on four particular points; the first of which set out, that it was not stated at whose suit the information against the defendant had been brought, whether at the suit of the King alone, or of a private individual and the King conjointly; the second, that the capacity of the Justices was insufficiently explained in the information, and not according to the prescribed form; the third, that it was not stated in the information in what way the penalty accruing in case of conviction should be distributed, the information merely praying that the penalty of £25 may be appropriated according to the terms of the Act in Council, whereas the precise way in which it ought to be appropriated should have undergone explanation; the final objection was, that those examined in support of the information, were interested witnesses, inasmuch as it was confessed, that they had it in expectation to receive a moiety of the penalty, an expectation arising out of the wording of the Act in Council.  On the defendant's Counsel closing his objections, the Court asked, if it appeared on the record of the conviction, that those witnesses called to support the prosecution were interested in a conviction being found.  To this the defendant's Counsel replied, that what he had averred had in substance been deposed to by the witnesses during their examination before the Justices.  He was not prepared to say that a note of the kind had been made before the Justices, or by the Clerk; but he apprehended that the Court in reference to the Act in Council before spoken of would bear him out in the assumption, that witnesses were of necessity interested in pressing a conviction.  The arguments raised against the information, the Court preferred waving, and the rule sought for was accordingly dismissed.

There were very sanguine expectations entertained by many, that the quashing of the conviction in the above case of appeal, would be a consequence of the objections raised, should their validity be admitted, and so be a precedent for putting aside other convictions previously found and then pending.  But those expectations met with disappointment - the conviction by the Magistrates of the full penalty of £25 sterling on each offender against the Act of Council has, therefore, in every case become confirmed.

Notes

[1 ] Procedendo: for the purposes of continuing on.  The superior court orders the inferior court to hear the matter.

Published by the Division of Law, Macquarie University