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

In re Lookaye alias Edwards (1828) Sel Cas (Dowling) 521; [1828] NSWSupC 16

hulk, convict punishment, habeas corpus, convict escape, convict service, assignment to spouse, supervision of inferior courts, certiorari, magistrate, illegal punishment by, Port Macquarie, Bathurst, Norfolk Island, Wellington

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 7 and 22 March and 1 May 1828

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

[p. 11]

[In re Alexander Lookaye alias Edwards.]

Habeas Corpus.[1 ]

Mr. Rowe moved for a writ of Habeas Corpus to be directed to the Master or Keeper of the convict Hulk Phonix in Sydney Cove, commanding him to bring up the body of Lookaye in order to his being discharged on the ground, that the prisoner was detained on an informal commitment.  By the colonial statute passed 17th February 1826 the Phonix hulk was appointed for the reception of such prisoners as were convicted and sentenced for crimes, by any competent Court in [p. 12] New South Wales &c.[2 ]  This prisoner was now confined in irons on board the hulk, the prisoner not having been in fact, convicted and sentenced by any competent Court in the Colony.  He was detained merely upon the authority of a paper writing (a copy of which was annexed to the affidavit) which stated that he was "a runaway from Bathurst" and that the committing magistrate "Recommends His Excellency the Governor to send him on board the Phonix Hulk for better security or to any other part of the Colony".  This, it was insisted, was no authority for detaining the prisoner in a place appropriated to convicted and sentenced prisoners only.  Had the magistrate shewn by his commitment that the prisoner had been convicted and sentenced by some Competent Tribunal in the Colony, this application could not have been supported.

This application was founded on the affidavit of Mr. Rowe himself only.

The Court said they could only grant a certiorari to return the proceedings before the committing magistrate, [p. 13] and if enough thereon appeared to warrant the prisoner's detention, it was competent to them to amend the commitment.

Writ of certiorari granted, returnable Saturday the 15th instant.

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[p. 13]

[Saturday 22d. March][3 ]

[In re Alexander Lookaye alias Edwards.]

This matter was called on again.  It was a motion for a habeas corpus to bring up the body of the prisoner from the Phonix Hulk in Sydney Harbour.  On the return to a certiorari, the court looked into the papers, and after consultation with Stephen J. and myself, Forbes C.J. delivered the opinion of the Court to the following effect:-

"The proceedings before the magistrate in this case, are now returned before us by certiorari.  We find upon looking into them, that the applicant for a habeas corpus is a prisoner of the crown or more technically speaking one of those persons who are designated in the 4.G.4.C.96. as being under sentence of transportation to this Colony. [p. 14]  From the deposition and the judgment which have been recorded, and now read it appears that the case was entirely one within the jurisdiction of the magistrate below.  From the judgment they have pronounced it appears that Alexander Lookaye alias Edwards had run away from Bathurst and for such offence was summarily punishable under the 19th. sec. of the N.S.W. act.  The finding of the justices as to the fact of his being a runaway is conclusive upon us as well as upon him.  The sentence awarded is that the prisoner shall be sent to such penal settlement or other place for safety as the Governor may please to direct.  We apprehend that that sentence is not sufficiently explicit, and therefore we recommend that Alexander Lookaye alias Edwards be remanded and taken again before the justices, in order that they may make their sentence complete and specify the time during which he is to be sent to such penal settlement [p. 15]  as is legally appointed for his reception.[4 ]

Per Curiam.- Let the prisoner be taken before the magistrates below.

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[p. 15]

[Thursday 1st May]

[In re, Williams Edwards alias Alexr. Lookaye.][5 ]

The wife (Eliz. Cath. Edwards) of this prisoner of the Crown presented a petition in person on behalf of her husband praying that he might be discharged from the sentence passed upon him by the Bench of Justices for having run away from Bathurst.  The petition complains that the Justices had sentenced him to be transported to a penal settlement for three years from the 29th March last, although he had been remanded by this court on the 14th March to have the previous sentence upon him amended.  It was therefore suggested that the justices could not sentence him to three years to be computed from the time he was last brought before the Justices.  Another ground stated was that the sentence was imposed not for his running away from Bathurst, but that he had been erroneously taken for the person of another [p. 16] man named Alexander Lockeye; which was positively denied.  Affidavits were adduced in support of this statement in which it was further alleged as matter of information and belief that the Colonial Secretary had improperly withheld private papers from the prisoner, and that a person high in authority had informed the deponent, that the Governor had received instructions from home, to grant a free pardon to the petitioner.  The Col. Sec. was therefore called upon to answer the matter of the affidavit.

Forbes C.J. and Dowling J. delivered their opinion at length (Stephen J. concurring), that this court had no jurisdiction to enquire into the merits of the proceedings of the Justices below, in as much as the offence attributed to the prisoner was within the scope of their jurisdiction (see 4.G.4 C.96.s.19).[6 ]  With respect to the detention of the prisoner of the crown, he was liable to the authority of the executive government and to have [p. 17] his person searched and papers detained in the exercise of the discretion of those to whom such authority was confided; and as to the suggestion that the government at home had authorised the governor to grant a free pardon, that was a matter solely within the province of the executive government over which this court had no control.

The petition was therefore dismissed.

Notes

[1 ] For another report of this hearing, see Sydney Gazette, 10 March 1828. 

According to the Sydney Gazette, 7 May 1828, Lookaye or Edwards arrived in New South Wales a prisoner from the Cape for libel, transported for seven years under Dutch law.  Before leaving the ship, he was recognised as a former runaway prisoner from New South Wales named Lookaye.  Allegations against him included that he had been a spy for Mr Bigge, the former commissioner into New South Wales.  The Australian accepted this story, but theSydney Gazette said it had been sceptical of the connection with Bigge.  See also Sydney Gazette, 12 May 1828.

The mystery of whether Edwards really was Loo Kaye, or Lookaye, is examined in F. Clune,Rascals, Ruffians & Rebels of Early Australia, Angus and Robertson, Sydney, 1987.  Clune says that Lookaye was a well educated man, who was transported in 1819 for horse stealing.  He allegedly escaped from New South Wales, absconding with a large sum of money which belonged to his employer, a solicitor.  By the time he reached Cape Town, he had allegedly changed his name to Edwards.  He was convicted of libel against the governor of that colony, and transported again in 1824.  He was sent to Port Macquarie, and later to Bathurst, from where he escaped with the aim of going to Sydney to present his case to Forbes C.J.  This litigation concerned a simple case against a runaway convict, and the limits of the powers of the governor and magistrates to send him to the hulk and from there to anywhere else.  However, it was complicated by the mystery of whether he really was Lookaye, a former runaway.  His action here failed and in May 1828, he was finally sent to Norfolk Island.  Tragically, he committed suicide on the night of his arrival there.  The government paid the costs of sending his widow and children back to the Cape.

The Sydney Gazette, 6 January 1829, claimed that a post-mortem dissection proved that Edwards was in fact Lookaye, based on injuries which were imperceptible while he was alive.  See also Sydney Gazette, 13 January 1829, reasserting its view that an inquest had shown Lookaye to be insane.

For Governor Darling's view of these events, see his despatch to Huskisson, 11 May 1828,Historical Records of Australia, Series 1, Vol. 14, p. 165, enclosing a petition from Lookaye's wife.  Darling said that Lookaye had been allowed to reside with his wife at Port Macquarie, that they were moved to Bathurst for its more congenial climate, that when he caused trouble with the prisoners there, they were ordered to Wellington Valley further inland, and that it was then that Lookaye escaped "no doubt with a view of again making his escape from the Colony".  Lookaye's wife, calling herself Mrs Edwards, said they had been persecuted in Bathurst.  She also said that she alone, of the wives of convicts, was denied an assignment of her husband's services.  She and her husband resolutely denied that he was Lookaye.  See alsoHistorical Records of Australia, Series 1, Vol. 14, pp 406-407; and on his suicide, pp 445-446; and see pp 730-735; Historical Records of Australia, Series 1, Vol. 15, pp 8, 20-21, 256-270, the latter including another long despatch from Governor Darling.

There were doubts about the sanity of Edwards or Lookaye, but even a sane person would not have wanted to go  to Norfolk Island at this time.  At about this time, another prisoner said that he would as soon be hanged as go to Norfolk Island: evidence in R. v. M'Allister and Wilson, in Australian, 7 March 1828.  At this time, women were not permitted at Norfolk Island, as prisoners or family members.  Governor Darling thought that sending women there would result in "an intercourse as promiscuous as that of the Beasts of the Field": Darling to Goderich, 23 October 1827, Historical Records of Australia, Series 1, Vol. 13, pp. 562-563.

This case remained controversial for years: see Australian, 14 January 1831.

[2 ] Chief Justice Forbes told Governor Darling on 5 August 1828, that the gaol and hulk in Sydney were inadequate for the purposes of prison discipline: Mitchell Library, A1267 - Part 11,  Reel CY 902, pp. 580-1.  See also Sydney Gazette, 21, 23 and 28 January, 23 April, 4 and 23 July 1828.

[3 ] See also Australian, 2 April 1828.

[4 ] Forbes C.J. wrote to Governor Darling on 16 March 1829 about the restrictions on punishing prisoners (Chief Justice Letter Book, Archives Office of New South Wales, 4/6651, p. 224):

``The Local Act , alluded to by your Excellency, had not escaped the consideration of the Judges, in framing the Rules for the Government of the Gaols; but their Honors thought that the local Ordinance, in giving the Sheriff a power of imprisoning, or removing persons already prisoners form the Gaol of Sydney to the Hulk, must be construed in conformity with the  laws of England, and the powers of the Judges, and held to be subject to such Rules and Regulations as should be laid down for the Guidance of the Sheriff. To interpret the ordinance with such a latitude, as to allow the Sheriff to act upon his own discretion, independently of the orders of the Judges, whose ministerial officer he is, would be to place in his hands a power equally unconstitutional in itself, and opposed to the express Laws of England, [marginal note: ``31. Ch. 2. Sect. 9. Hawk. PG. C. Vol 3 page 10. Sect. 5 Croke Car. 266."]  and the authorities vested in the  Judges [p. 225] of the Supreme Court [marginal note: ``4. Geo. 4. C. Sect 2-17 19th. Oct 1824 2 May 1827  See N. S. W. Almanack page 61 1829"] by the New South Wales Actand His Majesty's Order in Council issued in persuance of the same, and in direct contravention of a previous and Specific Rule of the Supreme Court: - Under this view of the Law the Judges put such construction upon the local ordinance of your Excellency in Council , as it appeared to them would render it consistent with the  Laws of England, and the powers vested in the Judges of the Supreme Court by the Act of Parliament and His Majesty's Order in Council, and laid down certain Rules for the guidance of the Sheriff, in the exercise of his ministerial functions, as an office of Supreme Court - Upon a careful re consideration of the subject, they feel impressed with the same view; and as a considerable time has elapsed since the Rules and Regulations were framed, at the desire of the Right Honorable the Secretary of State, and the suggestion of your Excellency, and transmitted for the purpose of being submitted for the allowance of His Majesty, they have to request that your Excellency, will cause them to be transmitted to England, and a notification to be made thereof, in pursuance of the Order in Council."

[5 ] See also Sydney Gazette, 2 May 1828.

[6 ] Section 19 of the New South Wales Act 1823 (4 Geo. 4 c. 96) established Courts of General or Quarter Sessions with the same powers as those in England (so far as the circumstances of the colony allowed).  These courts also had power to hold summary trials of transported convicts charged with any further crime not punishable with death, and to try minor offences by convicts.  For minor offences such as absconding and desertion, they could order corporal punishment or removal to another place in the colony and hard labour.

Published by the Division of Law, Macquarie University