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

Ex parte Raine (No. 2) [1828] NSWSupC 56; sub. nom. Ex parte Raine (No. 3) (1828) NSW Sel Cas (Dowling) 871

contempt of court, attachment

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 14 July 1828

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

Ex parte J Raine Contempt[1 ]

[p. 266]

[A party punished summarily for attending the process of the Court, after it had issued upon a  criminal information  fines 20£]

Norton moved that the masters report in this case should be read.

The Defendant had been examined on interrogatories upon a charge of contempt in altering the process of this Court by inserting into a rule for a criminal information the names of three persons against whom a motion had been made in the case of Rex v J. McArthur Esqr, and not granted and causing those persons to be served with the rule so altered.

Mr Gurner and Mr F Stephen now read the interrogatories and answers thereto by which it appeared that the Defendant admitted the contempt, but stated in excuse that he did so under a supposition that the names in question had been omitted by mistake by his law adviser who was instructed to move against [p. 267] those as well as other persons.

The Defendant not being in attendance to answer for his contempt after notice, [t]he Court awarded an attachment, and ordered that the Defendant be brought up on Monday next to answer for his contempt.

The Defendant in this Case appeared before the Court to answer for his Contempt.

The examination on interrogatories was read.

The Defendant put in an affidavit exculpating himself from any intention of treating the process of the Court with contempt.

He then addressed the Court to the same effect[.]

Mr S. Stephen was heard in aggravation of punishment.

Forbes CJ.  Then with the concurrence of Stephen J and Dowling J addressed the Defendant to the following effect:-

"John Raine you are to receive the Judgment of the Court, having been guilty, on your own confession of a [p. 268] contempt of Court, in causing the names of three individuals to be inserted in a rule issued under the authority of their Court, calling upon persons whose names were inserted in a rule issued under the authority of the Court to shew cause why a criminal information should not be granted against them for an alleged offence.  The process of the Court in which you have caused this alteration to be made is of a high character, and in proportion as that is so the offence with which you stand, charged is the greater.  It is a very great contempt of this Court to interfere with its process.  The excuse and the only excuse which you attempt for your conduct is an assumption that this was a mere clerical error in the course of the process and you took upon yourself to correct that error.  In doing that you did what this Court, only could do by correcting the error and causing the names of the intended persons to be inserted.  It is quite impossible that this Court can overlook conduct of this description.  If persons were allowed [p. 269] to take upon themselves to enlarge or restrain or in any manner to interfere with the process of the Court it would be allowing them to Judge for themselves and to take out of the power Court the solemn function of Judging for itself and take its authority into their own hands.  I repeat that this is a very serious offence, and calls for some animadversion.  You have sworn that you did not in any way intend to interfere with the Court or to impede the coure [sic] of Justice but that you acted under an error.  The Court is inclined to deal leniently with you, and as it hopes that the lenity now shown will not have a prejudicial effect upon others it orders and adjudges that for this offence you do pay a fine to the King of £20 and that you do stand committed to the Custody of the Sheriff until that fine be paid.[2 ]

Notes

[1 ] See also Ex parte Raine (No. 1), 1828.

[2 ] He immediately paid the fine and was discharged: Sydney Gazette, 16 July 1828.

Published by the Division of Law, Macquarie University